Jack & Llewellyn - [2025] FedCFamC2F 320

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jack & Llewellyn [2025] FedCFamC2F 320

File number: SYC 308 of 2022

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 18 March 2025

Catchwords: FAMILY LAW – PARENTING – application for final parenting orders – child aged 10 – child diagnosed with anxiety – where the parties each seek orders for the father to spend time with the child on a gradual increasing basis – where the mother seeks sole decision making responsibility – where the father seeks equally shared decision making responsibility – consideration of the best interests of the child under s 60CC of the Family Law Act 1975 (Cth) – final parenting orders made.

Legislation: Family Law Act 1975 (Cth) s 60CC

Division: Division 2 Family Law

Number of paragraphs: 145

Date of last submissions: 11 October 2024

Date of hearing: 7, 8, 9, 10 and 11 October 2024

Place: Melbourne

Counsel for the Applicants: Mr J Haddock

Solicitor for the Applicants: Friedlieb Fox McLeod

Counsel for the First Respondent: Mr D Whitchurch

Solicitor for the First Respondent: Myers Family Law

Counsel for the Second Respondent: Mr C Wilson

Solicitor for the Second Respondent: Pennicott Weir Lawyers

Counsel for the Independent Children's Lawyer: Ms S Damon

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 308 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR JACK

First Applicant

MS JACK

Second Applicant

AND:
MS LLEWELLYN

First Respondent

MR LLEWELLYN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

18 MARCH 2025

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Live with
2.The child X born in 2014 (‘X’) live with the mother.

Decision making
3.The mother have sole decision-making responsibility for major long-term issues for X.
4.In exercising sole decision making with regards to major long-term issues for X, the mother shall:
(a)advise the father via the parenting application Our Family Wizard or any decisions she intends to make with regards to X:
(b)allow the father no less than seven (7) days in which to respond to the mother’s communication;
(c)consider any comments or responses that the father makes, if any, when making a decision; and
(d)inform the father within 48 hours thereafter of the decision that is made.

Spend time
5.X spend time with the father as follows:
In 2025
(a)Until 1 May 2025, the current arrangements continue, namely X spend each alternate weekend with the father from the conclusion of school on Friday (or 3.30 pm if it is not a school day) until the commencement of school on Monday (or 9.00 am if it is not a school day);
(b)Commencing with the father’s first weekend in the fortnightly cycle in May 2025 referred to in order 5(a) and each alternate weekend thereafter from the conclusion of school on Friday (or 3.30 pm if it is not a school day) until the commencement of school on Tuesday (or 9.00 am if it is not a school day);

In 2026
(a)Commencing with the father’s first weekend of Term 1 in 2026, in the fortnightly cycle referred to in order 5(b) from the conclusion of school on Thursday (or 3.30pm if not a school day) until the commencement of school Tuesday (or 9.00 am if not a school day);
(b)As otherwise agreed in writing between the parties in writing.

6.X communicate with the parties as follows:
(a)by Facetime/telephone/smart watch with the father each Thursday at 5.00pm unless otherwise agreed in writing between the Mother and Father with the Father to make the call to the Mother’s phone;
(b)by Facetime/telephone/smart watch with the paternal grandparents, at such times as agreed with the father in writing and with such calls to occur during the X’s spend time with the father pursuant to order 5 above;
(c)otherwise upon a reasonable request from X to communicate with the other parent, the parent providing care for X will facilitate communication with the other parent by Facetime/telephone/smart watch.

7.During the New South Wales gazetted short term school holidays (namely holidays at the conclusion of terms 1, 2, and 3) unless otherwise agreed in writing, X spend the following time with the father:
(a)commencing in the holidays at the end of term 2, 2025 and each odd-number year thereafter, from the middle Saturday at 12.00pm until the recommencement of school; and
(b)in 2026 and each even-numbered year thereafter, from the conclusion of school on the last day of school until the middle Saturday at 12.00pm.

8.During the New South Wales gazetted long summer holidays (namely, from the conclusion of term 4 until the recommencement of term 1 the following year);
(a)in 2025/2026, for two blocks of seven (7) nights to coincide with and extend the father’s regular time in accordance with order 5(a) above, with the timing of such blocks of time to occur by agreement during the 2025/2026 long summer holiday period and failing agreement both blocks shall take place on the father’s first two weekends in January 2025;
(b)in 2026/2027 and thereafter, the father’s regular time pursuant to Order (5)(b) and (c) above shall be suspended and X shall spend time with the parents on a week on week off basis, with changeover to occur each Sunday at 12.00 pm unless otherwise agreed in writing between the parents.

9.X will spend time with the paternal grandparents as agreed in writing between the paternal grandparents and the father with such time to occur during X’s time with the father pursuant to Order 5, 7 or 8.

Special Occasions
10.Notwithstanding orders 5 – 8 above, X spend special occasions with each parent (if not already in that parent’s care) as follows:
With the mother
(a)on Mother’s Day from 5.00pm the Saturday prior to Mother’s Day until the commencement of school the following Monday (or 9.00am if not a school day);
(b)on X’s birthday from the conclusion of school until 5.00pm it is a school day and from 10.00 am until 2.00pm if it is a weekend;
(c)in 2026 and each even-numbered year thereafter, from 12:00pm Easter Saturday until 3:00pm Easter Monday;
(d)in 2027 and each odd-numbered year thereafter, from the conclusion of school or 3:00pm on Maundy Thursday until 12:00pm Easter Saturday;
(e)in 2025 and each odd-numbered year thereafter, from 10:00am Christmas Eve until 2:00pm Christmas Day;
(f)in 2024 and each even-numbered year thereafter, from 2:00pm Christmas Day until 5:00pm Boxing Day;

With the father
(a)on Father’s Day from 5:00pm the Saturday night prior to Father’s Day until the commencement of school the following Monday (or 9:00am if it not a school day);
(b)on X’s birthday from the conclusion of school until 5:00pm if a school day, and from 10:00am until 2:00pm if a weekend;
(c)in 2026 and each even-numbered year thereafter, from the conclusion of school or 3:00pm on Maundy Thursday until 12:00pm Easter Saturday;
(d)in 2027 and each odd-numbered year thereafter, from 12:00pm Easter Saturday until 3:00pm Easter Monday;
(e)in 2025 and each odd-numbered year thereafter, from 2:00pm Christmas Day until 5:00pm Boxing Day;
(f)in 2024 and each even-numbered year thereafter, from 2:00pm Christmas Eve until 2:00pm Christmas Day.

Changeover
11.Changeover shall occur at X’s school unless it is to occur on a non-school day in which case, it shall take place at Town B McDonald’s at the commencement of the father’s time and at Town C McDonald’s at the conclusion of X’s time with her father unless otherwise agreed by the parents in writing.

Parental communication
12.The parents communicate via Our Family Wizard for the purpose of communication and discussion for all matters in respect of the welfare of X.
13.The parents notify each other by telephone as soon as reasonably practicable in the event of a medical emergency suffered by X or either of them, including details of the illness or injury suffered, any medication prescribed and of the treating doctor/hospital if applicable. In the event of X requiring hospitalisation, the parties shall notify the other within two (2) hours of such a decision being made.
14.Each parent keep the other informed of their residential address, contact telephone number and advise the other within 24 hours of any change to same.

Restraints
15.Each parent and each of the Paternal Grandparents be and are hereby restrained by injunction from:
(a)insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or grandparent or a member of their immediate household in the presence or hearing of X;
(b)discussing these proceedings or X’s living arrangements with or in the presence or hearing of X;
(c)showing X any document associated with these proceedings;
(d)using physical discipline on X;
(e)consuming alcohol to excess of 0.05% BAC for 48 hours prior to and during all time spent with X;
(f)consuming illicit substances for 48 hours prior to and during all time spent with X;
(g)bringing X into contact with any person who has done anything prohibited under this order;
(h)permitting any other person to do anything prohibited under this order in X's presence.

Authorisations
16.Each parent be authorised by these Orders to obtain from X's school all notices, letters, school reports, photographs, access to the school Application and other documents pertaining to X's education at their own expense.
17.The parties be authorised by these Orders to attend all school sporting carnivals, parents’ days, presentations and concerts to which parents and/or grandparents are usually invited and the parties will endeavour to communicate their attendance (and in the case of the grandparents’ attendance, the father will communicate with the mother) via Our Family Wizard at least 48 hours prior to any event.

18.These Orders hereby authorise each parent to attend on and obtain from X's health practitioners including any general practitioner, psychologist, counsellor or allied health professional he attends upon, any assessments, reports and other information pertaining to X’s health and wellbeing and to discuss all matters pertaining to X's health and wellbeing, upon a request made by that party with the requesting party to be responsible for any fees associated with such a request.
19.Leave is granted to the parents to provide to X, the mother and/or father’s treating psychologist/counsellor or other allied health treater, copy of Ms D’s Single Expert Report dated 3 September 2024.
20.The parents be permitted to provide a copy of these orders to:
(a)X’s school; and
(b)X’s Medical practitioners and allied health practitioners.

Other matters
21.The parents shall do all things to ensure that X continues to engage with and obtain support from Mr E and follow his recommendations.
22.The Independent Children’s Lawyer be discharged.

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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION

Before the court is an application for parenting orders in relation to X born in 2014 (‘X’), the only child of Mr Llewellyn and Ms Llewellyn.
X has been described by all parties as a chatty, sweet, creative, funny and engaging young girl.[1] She turned ten last year. She has also been diagnosed with anxiety and both parents accept this diagnosis.
[1] See for example, Court transcript at page 562.
The applicants in this matter are X’s paternal grandparents. The first respondent is the mother, Ms Llewellyn, and the second respondent is the father, Mr Llewellyn.
Both the mother and the father have also been diagnosed with various psychological conditions.
BACKGROUND
The parents met and commenced a relationship in or around 2012, while both were living in Queensland. The mother has a child from a previous relationship, Ms F (‘Ms F’), who, at the commencement of the parties’ relationship, was approximately ten years old.
When X was approximately six months old, the mother relocated with Ms F and X from Queensland to Town B, New South Wales.[2] The father maintains that although he was living in Queensland and the mother in Town B initially, and later in Town C, that they remained in a relationship. The mother disputes this and says that she left Queensland to get away from the father and the family violence that he subjected her to and that their relationship was on again off again after that, until they finally separated in 2021.
[2] Affidavit of Ms Llewellyn filed on 22 March 2022, paragraph 5; Affidavit of Mr Llewellyn filed 2 March 2023, paragraph 11.
Whilst it is acknowledged that there were a few times when the mother took X to Queensland to visit the father and his parents, or when the father (and at times his parents) came to Town B or Town C while X was a young child, it is common ground that there were long periods of time where X did not spend any face to face time with the father.[3] It is not in contention that since she was born, the mother has been X’s primary carer.
[3] See Affidavit of Ms Llewellyn filed on 6 July 2023, paragraph 28; Affidavit of Mr Llewellyn filed on 30 September 2024, paragraphs 26 and 27.
It is also not in dispute that there were times, before the mother and X moved to Town B and while the parents were living in Queensland, that the mother would take the child/children and leave and go to stay with the father’s parents for a few days to get away from the toxic environment at home.
The mother alleges that she was subject to extensive family violence by the father throughout the relationship including verbal abuse, pushing, shoving, and on one occasion grabbing her around the neck with such force that the mother was left with red marks on her neck. The mother reports that X was exposed to much of this violence – either that she was present when it happened, or was within earshot of the verbal abuse.
The mother also says that the father was financially controlling and that he regularly threatened that he would ‘kick her out of the house’.[4] She also says that when they had arguments the father threatened that his parents would use their financial resources to ensure that he got custody of X, and that X would end up living in Queensland.[5]
[4] Affidavit of Ms Llewellyn filed on 22 March 2022, paragraph 7.
[5] Affidavit of Ms Llewellyn filed on 22 March 2022, paragraph 9.
The father admits that there were verbal arguments.[6] He admits that during the relationship he used foul language towards the mother and he also admits that his behaviour might be perceived by her to be controlling even though that was not his intention. He also admits that he may have slammed his fist on the counter when angry. He denies that he otherwise used physical violence and denies that he put his hands on the mother’s neck as alleged.
[6] Affidavit of Mr Llewellyn filed on 30 September 2024, paragraph 78.
The mother also alleges drug and alcohol abuse by the father during the relationship. Those allegations are denied by the father. Whilst the father concedes that he used marijuana and consumed alcohol during the relationship, he denies the extent of the alleged use. There are documents produced under subpoena which indicate that his use was greater than he now concedes although the father maintains that these documents are incorrect records of what occurred.
Ultimately, the evidence is that the father has produced numerous Hair Follicle Tests and drug screens throughout these proceedings which indicate that he has not used drugs or alcohol during the length of these proceedings, namely for a period of 3 years. The mother had concerns about the validity of the results, however, no evidence was led by her to support any questioning of those results. On the basis of the evidence before me, therefore, I accept on the balance of probabilities that the father has not used drugs during the course of these proceedings.
Whilst there is a dispute about the circumstances in which he did so, it is common ground that the father purchased a property in Town C in 2016, which the mother, Ms F and X moved into while the father continued to reside in Queensland.[7]
[7] Affidavit of Ms Llewellyn filed on 22 March 2022, paragraph 7; Affidavit of Mr Llewellyn filed on 2 March 2023, paragraph 21.
During the period where the parties resided in different states, from approximately 2015 to 2020, the mother states that the father’s contact with X was intermittent only, and that there was one period of around 12 months where the father did not see X.[8] This is disputed by the father, who claims that he ‘spent as much time with [X] and [the mother] as [his] work schedule would allow’, and that he would ‘call [X] every night’.[9]
[8] Affidavit of Mr Llewellyn filed on 4 April 2022, paragraph 7; Affidavit of Mr Jack filed on 20 January 2022, paragraphs 16 to 22.
[9] Affidavit of Mr Llewellyn filed on 30 September 2024, paragraph 26.
The father relocated to Town C in approximately 2020 and again commenced living with the mother, Ms F and X.[10] The mother asserts that the father’s controlling and abusive behaviour against her re-commenced in this period.
[10] Affidavit of Ms Llewellyn filed on 22 March 2022, paragraph 7; Affidavit of Mr Llewellyn filed on 2 March 2023, paragraphs 12 to 16.
The parties’ relationship broke down and they separated on a final basis in September 2021, when the mother relocated with X to Town B. A provisional Apprehended Domestic Violence Order (‘ADVO’) was obtained in late 2021 naming the mother and child as protected persons and the father as the respondent.
A final ADVO was made in mid-2023, in place for 18 months which named the mother as a protected person and including revised conditions regarding the distance that the father had to maintain from the mother.
PROCEDURAL BACKGROUND
Before considering the issues in this matter, it is appropriate to briefly summarise the relevant procedural background.
This matter commenced by initiating application of the paternal grandparents in the Sydney Registry of this court. It was then transferred to the City G Registry by orders made on 28 April 2022, given the parties’ closer proximity to that Registry.[11]
[11] Orders of Judicial Registrar Chayna dated 28 April 2022.
On 13 September 2022, interim parenting orders were made as follows:[12]
(a)X spend time with the paternal grandparents each alternate weekend either in person or electronically for up to two hours, such time to be facilitated and supervised by a child contact service in City G;
(b)following the completion of two visits, X communicate with the paternal grandparents electronically once weekly for a period of up to 30 minutes; and
(c)the paternal grandparents be restrained from allowing the father to participate in their communication with X.
[12] Orders of Deputy Chief Judge Mercuri dated 13 September 2022.

On 12 July 2023, parenting orders were made by consent on both an interim and final basis as follows:[13]
[13] Orders of Deputy Chief Judge Mercuri dated 12 July 2023.
(a)On a final basis:
(i)X live with the mother;
(ii)the mother be permitted to relocate X’s residence to Queensland.
(b)On an interim basis:
(i)X spend supervised time with the father for six visits at the City G Children’s Contact Service;
(ii)the parents enrol with City G and attend intake;
(iii)following the completion of six visits of supervised time, the father spend unsupervised time with X each alternate Sunday and two overnights prior to X’s relocation;
(iv)after X’s relocation, the father spend unsupervised time with X each alternate weekend from Saturday to Sunday, eventually progressing to Friday to Monday;
(v)X spend supervised time with the paternal grandparents for no less than four visits;
(vi)following the completion of four visits of supervised time, the paternal grandparents spend unsupervised time with X each alternate Sunday and each alternate weekend prior to X’s relocation;
(vii)after X’s relocation, the paternal grandparents spend unsupervised time in the 2024 March/April school holiday period with X.
It is of note that these interim orders contemplated the mother’s relocation to Queensland which was in issue at the time. The mother no longer seeks to relocate.
On 18 September 2023, the paternal grandparents filed an Application in a Proceeding in which they sought, inter alia, that the final and interim parenting orders referred to above be discharged. This application was heard on 26 October 2023 and orders were made as follows, relevantly:[14]
(a)The final parenting orders made on 12 July 2023 be suspended;
(b)X spend unsupervised time with the father as set out in the orders, with any overnight time to occur at the paternal grandparents’ residence; and
(c)The matter be adjourned for interim hearing on 12 January 2024.
[14] Orders of Senior Judicial Registrar Jenkinson dated 26 October 2023.
The interim hearing referred to above was vacated on 9 January 2024 in circumstances where as mentioned the mother no longer intended to relocate with X to Queensland.
On 13 May 2024, the matter was adjourned for final hearing to be heard in Melbourne. Interim orders were also made by consent on this occasion appointing Ms D as a single expert witness ‘to enquire into and report upon matters relating to the welfare of [X]’.[15]
[15] Orders of Deputy Chief Judge Mercuri dated 13 May 2024.
PARTIES’ PROPOSALS
It is of note that following four days of evidence in this matter, each of the parties moved from their initial proposal, representing what appeared to be a shift in their respective understanding of the other parties’ views and experiences of what has transpired. Each of the parties is to be commended for this shift. Whilst communication between the mother and father and between the mother and the paternal grandparents remained at trial almost non-existent, this shift is an encouraging sign that, notwithstanding the vulnerabilities each party brings to this matter, they may each in future react or respond in a more child focussed way, which can only be good for X.
Paternal grandparent’s proposal
The paternal grandparents have maintained that their intentions in bringing these proceedings have always been focussed on X and their view that it was in X’s best interests to continue to have a relationship with the paternal family.
At the conclusion of the hearing, the paternal grandparents’ position was as follows:
·they made no submission in relation to decision making which, in their view, was a matter as between the parents;
·they supported the father’s proposed orders for a transition to an equal shared care arrangement;
·they seek orders which would provide for their time to occur during the father’s time; but with a ‘default order’ that would provide for X to spend time directly with them, if the mother stops or suspends X’s time with the father; and
·they seek a specific order that X have telephone contact with them on her birthday and Christmas day.
Mother’s proposal
At the conclusion of the hearing, the mother’s position was that:
·she have sole decision-making authority for long-term decisions for X, subject to a mechanism for her to notify the father of any proposed decision, seek his input, consider that input and then advise the father of the decision made;
·X to live with her;
·the current arrangements for X to spend time with the father each alternate weekend continue for the time being without any additional time for school holidays until mid‑2025;
·from mid-2025, (say the end of Term 2) that X’s time with her father increase to 4 nights per fortnight, namely from Thursday after school to the beginning of school on Monday with collection and drop off to continue from school and no additional time during school holidays; and
·from the beginning of 2026, the time increase to include half school holidays.
The mother also proposes regular phone or facetime calls with the father.
The mother proposes that where changeover is not at school that it should occur in Town B, not alternately between Town B and Town C.
In relation to the paternal grandparents, the mother proposes that they spend time and communicate with X during X’s time with her father.
Father’s proposal
The father’s position at the conclusion of the hearing had significantly changed. He no longer sought a change of residence and accepted that X should continue living with the mother and that her time with him would need to progress slowly.
At the conclusion of the hearing, the father’s proposal therefore was:
·the parties have joint decision making responsibility in relation to long term issues for X;
·in terms of time, the current alternate weekend arrangements continue for the remainder of 2024 and that from the beginning of 2025, X spend an additional night with him, namely from after school on Friday until the beginning of school on Monday and from the beginning of term 3 in 2025, X move to an equal shared care arrangement between the parents, namely 7/7; and
·the father proposes that where changeover does not occur at school, the ICL’s proposal ought to be adopted.
Independent Children’s Lawyer Proposal
At the conclusion of the hearing, the ICL proposed orders in the following terms:
·the mother have sole decision making responsibility in relation to long term issues for X, subject to the need to consult with the father and take into account his views before making a decision;
·in terms of time with her father, the ICL proposed that:
·the current arrangements of each alternate weekend from after school on Friday until the commencement of school on Monday continue until the beginning of 2025;
·from the beginning of 2025, that X spend an additional night with the father, from Friday after school until the commencement of school on Tuesday;
·from the beginning of term 1 in 2026, X’s time with her father increase by one further night, so that she spends time with him from after school on Thursday to the commencement of school on Tuesday;
·from 2025 onwards, X spend half of each of the short term holidays with her father; and
·in the long summer holidays from 2026 onwards, that X spend the long summer holidays with each parent on a week about basis.
·the ICL also proposed orders for X to communicate with the father and the paternal grandparents by telephone/facetime;
·that where changeover did not occur at school, it was to occur at Town B at the commencement of time and in Town C at the conclusion of time.
The ICL also proposed that the paternal grandparents would spend time and communicate with X during the father’s time. The ICL did not support any default orders for the grandparents in the event that the father was not spending time with X pursuant to these orders.
The ICL also made various recommendations for X to spend time with the father for special occasions, for communication about X between the parents to occur by the Our Family Wizard app, for the parties to keep the other notified of their contact details and other relevant information, and for various restraints and authorisations. In closing submissions, the parents and the paternal grandparents consented to each of these orders.
In addition, each of the parties agreed that there should be an order which provided for the parents to continue to facilitate X attending upon Mr E for emotional support.
ISSUES
Although at the commencement of the trial in this matter, the parties were a significant distance apart, with the father effectively seeking a change of residence and the mother seeking a reduction in the father’s time with X, as stated, and to the parties’ credit, by the conclusion of the hearing, the parties had significantly reduced the areas of disagreement between them.
As noted by the ICL:[16]
In terms of discussing the witnesses in these proceedings, somewhat extraordinarily, this process seems to have been a little bit therapeutic for these parties, which is not normally what happens in cross-examination, but they have actually all been able to hear from each other directly for the first time and, as a result of that, both the mother and the father have shifted quite significantly in their positions, and that’s both to their credit that they’ve been able to listen not only to each other but to the comments of other people in the court, and that is to both of their credit, and I hope that it continues to happen going forward. They’ve also both been able to in the witness box acknowledge some of their failings throughout these proceedings, and have been able to articulate changes that they’ve made to varying extents, but they have both been able to articulate those changes and some reflections on their own behaviour throughout the proceedings.
[16] Court transcript at page 576.
I agree with these observations. It is with these observations and the understanding that each party developed in hearing each other, that the following issues remain to be determined:
(a)whether the mother should have sole decision-making responsibilities or whether it should be equally shared with the father;
(b)how time with the father should progress:
(i)all parties agree that this should increase, the issue between them is how much and how quickly must it progress;
(ii)in particular, whether it should progress to an equal shared care arrangement as suggested by the father, and supported by the paternal grandparents, stop at a four nights per fortnight arrangement with ultimately, half school holidays as sought by the mother or move to a five night per fortnight arrangement as sought by the ICL. There is also an issue about when telephone time should occur.
(c)where changeover should occur where it does not occur at school; and
(d)in circumstances where all parties agree that the grandparent’s time with X should occur during the father’s time, and by agreement with the father, the final issue for determination is whether there should be a default position in the event that the mother stops or suspends the father’s time for some reason.
CONSIDERATION
Before turning to consider each of these issues within the legislative framework, it is important to note that given the narrowing of the issues, and the shift in the perspective of the parties in this matter over the course of the hearing, it is not necessary for me to address all the evidence that was led by the parties.
I have however, considered all the evidence and weighed it in the balance in considering what is ultimately in X’s best interests. In circumstances where all parties seek orders which would permit X to spend substantial time with the father and paternal grandparents, this is not a case in which any party maintained at the conclusion of the hearing, that there was an unacceptable risk of harm to X in the care of any party.
Many allegations were made by the parents about the nature of their relationship whilst they were living in the same household and in the case of the paternal grandparents and the father, allegations were made about the mother’s capacity and preparedness to support X’s relationship with the paternal family.
It is not necessary, or useful in my view, to traverse all this evidence in these reasons in circumstances where it appears that concessions were made by all parties about their own conduct and/or their perceptions of the conduct of others. As I say, whilst I have considered this evidence and had regard to it in coming to my views, I will only refer explicitly to that evidence where it is necessary to understand my reasoning.
Current arrangements
Pursuant to interim orders made in October 2023 X, from 4 August 2024, is to spend time with her father after school or 3:30pm on Friday to before school or 9:00am on Monday and each alternate weekend thereafter.[17]
[17] Orders of Senior Judicial Registrar Jenkinson dated 26 October 2023.
It is common ground that since January 2024 X’s time with the father has progressed to overnight time and then since June 2024 it has increased to each alternate weekend from after school on Friday to the beginning of school on Monday. The parties agree that whilst that time has continued to progress it has not always occurred in accordance with the October 2023 orders. Notwithstanding this, the parties also agree that since changeover has been at X’s school, this has made it easier for X to transition into the father’s care.
The father and the paternal grandparents asserted at the commencement of these proceedings that they were of the view that the mother was not supporting X’s relationship with the father and the paternal grandparents. The mother on the other hand says that X suffers from anxiety and that it is her anxiety that has prevented her from wanting to spend more time with the father as per the orders.
The mother’s case is essentially that during the relationship X was exposed to family violence perpetrated by the father and that this together with other incidents which have occurred since separation have fed into her anxiety about spending time with the father and the paternal grandparents. She denies that she has intentionally fed into or promoted X’s fears in this regard. The mother ultimately did, however, concede that initially she may have inadvertently exposed X to her negative feelings and anxieties about the father, and that X, who is an emotionally attuned child, will no doubt have picked up on the mother’s feelings and this may have impacted her preparedness to spend time with the father.
The mother has also given evidence that she has been engaging with psychological counselling and is seeking out further supports to assist her with a diagnosis of PTSD. That treatment had not yet been secured or commenced at trial. Notwithstanding, the mother says that as a result of the psychological support she has obtained, she has been able to reflect on her own behaviour in the post-separation period and develop some strategies to shield X from her own anxieties.
For his part, the father also acknowledged that his own behaviour, in the context of the dynamics of his relationship with the mother whilst they were together, could also have added to the mother’s anxiety. He too has given evidence that he has engaged with psychological supports and continues to regularly see a psychologist to help him manage his own anxiety.
Both parents say that as a result of these increased supports, they have come to better understand their conditions and their responses to stressful situations.
It is against this background that the incidents which occurred towards the end of the relationship and post-separation are to be considered.
Incident in Early 2020
It is common ground that the mother was homeschooling X and became frustrated at one point.[18] The mother concedes that she yelled at X, took her by the arm to her room. The mother says that she put X in her room and then she and the father had an argument in which the father became abusive and grabbed her by the neck. She says she tried to push him away and remove his hands from her neck.[19]
[18] Affidavit of Mr Llewellyn filed on 4 April 2022, paragraph 21; Affidavit of Ms Llewellyn filed on 6 July 2023.
[19] Affidavit of Ms Llewellyn filed on 6 July 2023, paragraph 37.
The father says he was outside the house when he heard yelling and went inside to find the mother dragging X by the arm towards her room. He says that he then separated them and took X to her room to calm down. He says that when he returned to the kitchen there was some discussion/argument with the mother and then the mother hit him.[20]
[20] Affidavit of Mr Llewellyn filed on 30 September 2024, paragraph 49.
The mother says that when she freed herself from the father’s grip, she went outside the house and showed the red marks around her neck to the paternal grandparents who were at their property.[21]
[21] Affidavit of Ms Llewellyn filed on 6 July 2023, paragraph 37.
The father denies that this occurred, namely that he in fact put his hands on the mother as alleged. Indeed, it is the father’s case that he was the victim in this incident.
It is common ground that the mother then left the family home with X and went to spend some time at a friend’s house. The father says that he then took the opportunity to spend some time apart from the mother by going to Queensland and collecting some of his possessions that remained there.[22]
[22] Affidavit of Mr Llewellyn filed on 30 September 2024, paragraph 52.
The paternal grandparents say that after the incident, the mother announced that she was going to Town B and took X and left for the weekend.[23]
[23] Affidavit of Mr Jack filed on 14 September 2024, paragraph 33.
As stated, in circumstances where this incident occurred almost five years ago, and in circumstances where both parties seek orders that X spend time with the father and no suggestion of unacceptable risk of harm in the father’s care arises, it is not necessary that I make a finding about exactly what happened on this occasion. I do note however, that on either party’s case, this was an example of the conflict in the parties’ relationship and the mother was sufficiently distressed by what happened that she took X and left the family home.
It, together with the father’s conduct that he does admit, including verbally aggressive and rude comments, and conduct which could reasonably be perceived as controlling behaviour, explains in some part the mother’s response to these proceedings and her reluctance to engage with the father and the paternal grandparents.
Early 2021
It is also common ground that in early 2021, the father collected X from a birthday party, drove her to Brisbane and then boarded a flight to City H where he handed X to his father.[24] X remained in the paternal grandparent’s care for a week and the paternal grandparents then paid for her flight and arranged for the father to pick her up at City H airport and return to Melbourne airport where they were met and collected by the mother.
[24] Affidavit of Mr Jack filed on 20 January 2022, paragraph 30.
It is also common ground that at this time, the parties were arguing.
The mother says the father took X without her permission.[25] Moreover, the mother says that the father’s conduct in taking X to the paternal grandparents in this situation was consistent with the threats that he had previously made that he would in fact do exactly that.
[25] Affidavit of Ms Llewellyn filed on 6 July 2023, paragraph 36.

The father denies that he made any such threats. The paternal grandparents also deny that they ever were interested in taking X away from her parents, or more specifically, from her mother.
The father concedes that he and the mother were arguing at about this time. He says that they agreed that he would take X to his parents so that she was not exposed to the arguments and so that the parents could have an opportunity to work on their relationship.
The father further says that it was only some 8 hours into his journey to Brisbane that the mother contacted him and said that she did not agree. He characterised this as the mother ‘changing her mind’.[26] Even if I were to accept the father’s version of events, it is not clear why at that point, where he understood that the mother did not agree to X being taken to Queensland, and in the context of what was clearly a volatile situation, he did not simply turn around and come back home with X. At the very least, this demonstrates a lack of insight into the impact of his conduct on the mother and, more importantly, on X. The father concedes that at this point X was only 5 years of age and she had never travelled to stay with the paternal grandparents without her mother. At the very least, the father’s conduct in this was not child focussed.
[26] Court transcript at pages 426 and 427.
It is also common ground that the mother called the paternal grandfather and told him that she did not agree to X being in Queensland with them, and that if she was not returned that she would be making an application for a recovery order. Ultimately, that was not necessary as discussed as arrangements were made for X to be returned to Town B.
September 2021
As stated, the mother left the family home in September 2021, and the police obtained an ADVO for her protection and that of X.
It is common ground that after she left the family home, X did not spend any time with the father until after orders were made in these proceedings.
Late 2021 incident
It is also common ground that shortly after the ADVO was put in place, the paternal grandparents came to Town C. They were unable to make contact with the mother and had not seen X. They say that they were concerned to make sure that both X and the mother were okay after having left the former family home and wanted to check in to see if there was anything that they needed. This, they say is consistent with their relationship with the mother prior to separation when she would talk to them and seek their support from time to time if she had problems including with the father.
The paternal grandparents’ evidence is that the mother refused to speak to them and they were becoming increasingly concerned. It is in this context, and in the context that it was a special occasion, and on that day, the paternal grandparents attended at the mother’s home in Town B and tried to speak to the mother and to see X.[27]
[27] Affidavit of Ms Jack sworn and filed on 20 January 2022, paragraph 27.
The mother says that she found their conduct intimidating and inappropriate. The paternal grandparents say that their intention was motivated by concern for X and their mother. Irrespective of their intention, it is not in dispute that the paternal grandparents attended at the mother’s home on that day. After they got no response the first time, the paternal grandparents left.
It is also not in dispute that on their way back into town, they saw the mother’s older daughter F heading towards the mother’s house and returned.[28] By this time, the mother had arranged for a male friend to come over. She and X were inside the house. When the paternal grandparents arrived, the mother’s friend asked them to leave. They did not leave for about 15 to 20 minutes during which they continued to say they wanted to see X before they left. Ultimately, the paternal grandparents left the mother’s home.
[28] Affidavit of Ms Jack sworn and filed on 20 January 2022, paragraph 28.
The mother says that she was fearful as the police had just obtained an ADVO for her protection which included a prohibition on the father having anyone else engage in the conduct that he was prohibited from doing, on his behalf.
The paternal grandparents deny that any of this was done at the behest of the father or indeed that the father knew that they were proposing to go to see the mother. The paternal grandmother seemed to have less understanding than the paternal grandfather about the impact of this on the mother and X, but ultimately, they both accepted that this had a negative impact on their desire to pursue a relationship with their granddaughter. Both paternal grandparents conceded that if they had their time again, they would not have gone to see the mother that day.
Irrespective of the impact of this incident, I accept that the paternal grandparents were well intentioned, if misguided, in attending the mother’s home in late 2021. It is apparent from the paternal grandmother’s evidence that she struggled to understand how and why the mother, who had been a part of their lives for 10 years could simply cut off all contact with the paternal grandparents when she left the father. The mother’s evidence, which I also accept, is that she was advised by the police who took out the ADVO, to cease all contact for a period of time after the ADVO was served to let things settle down.
I accept that the mother found this incident to be particularly distressing.
OTHER MATTERS
At the time of the hearing, the paternal grandparents had returned to live in Queensland after having spent a significant amount of time in Town C. Their evidence is that their intention is to look at buying a property in the Town C area where they could spend six months each year with the balance of the year in Queensland. That would allow them to spend time with both their children and their families. Whilst in Town C they would be able to provide support to the father if required in caring for X.
The father’s evidence at trial was that he was currently not working although his intention is to try and find work once these parenting proceedings are finalised. He said he would need to know much availability he has for work which could fit in with his parenting obligations. The father also confirmed that he had not paid any child support. The mother confirmed that she had not made any application for child support.
The mother also relied on the evidence of her older daughter Ms F and her brother, Mr J. Neither Ms F nor Mr J was required for cross-examination. Ms F gave evidence about her observations of the father’s drug use and the family violence that she observed whilst living in the parents’ home.
Given the concessions made by the father about his verbal aggression towards the mother during the relationship and the fact that it is not necessary for me to make any findings in relation to the disputed incidents of family violence, I don’t propose to say anything more about Ms F’s evidence in this regard.
Similarly, Ms F gives evidence about the father’s drug use. Again, given the concessions made by the father that he did use drugs previously, it is not necessary to expressly deal with Ms F’s evidence in this regard. The mother says that the father suffers from a medical condition which is the result of his use of cannabis and that he is understating his drug use. She points to medical records and police records which support this assertion. It is not in dispute that the father has on occasion suffered from extreme medical issues resulting in him having to be taken to the hospital in an ambulance. Ms F gives evidence that she was involved in arranging for the father to be taken to hospital on a number of occasions by ambulance. The father accepts that he has suffered from attacks requiring him to be taken to hospital by ambulance and that Ms F and X were present on some of those occasions, although he disputes that this was due to his drug use. It is unnecessary for any specific findings in this regard to be made in circumstances where he has not had such an episode since these proceedings have been on foot and given his abstinence from drugs since the commencement of these proceedings.
Similarly, the mother’s brother, Mr J gave evidence about:
·the father’s verbally abusive and controlling behaviour that he observed during the parents’ relationship;
·threats made by the father to adversely affect his position as a public servant; and
·the behaviour he observed of both the father and the paternal grandfather outside the Town B Local court in late 2022 when the final ADVO was being considered, and also the paternal grandparents’ movements in Town B in late 2022.
Again, given the concessions made by the father about his conduct towards the mother during their relationship, it is not necessary for me to set out Mr J’s evidence in this regard in any detail. Similarly, I don’t propose to detail the evidence given in relation to the allegations about the father’s conduct and the conduct of the paternal grandparents’ conduct at the court in late 2022 or in and around Town B in late 2022. Suffice to say that the father and the paternal grandfather provide an alternative version of these matters. I accept that in a highly charged context such as where an ADVO is being pursued, that emotions run high and that there may be more than one explanation for people’s behaviour. I accept however, that whatever the intention of the father and/or the paternal grandfather, the mother felt that their presence and conduct was intimidating. This in turn, impacted her response to proposals made by the father and the paternal grandparents in these proceedings.
The paternal grandfather and the father both agreed that there were occasions when X was in their care when she became a bit quiet, a sign that she might be anxious, and asked to go home early and, to their credit, they accommodated that.
It is not in dispute that there was one occasion, due to having missed a weekend, and make up time being arranged, that X was to spend two weekends in a row with the father.[29] It is common ground that X did not spend time with the father on the second weekend and told him that it was a bit much to spend time two weeks in a row. The parents each raise concerns about this against the other, however, it was indicative of the lack of trust between them. It is also apparent that each parent gained some appreciation of the other’s experience of this, and other, circumstances through the course of the trial.
[29] See Court transcript at page 113.
It is also common ground that after he sold the Town C property, the father was staying at a local hotel in Town B until he was able to secure rental accommodation. His evidence is that he intended to be closer to X and her school in the hope that additional time would be ordered and he would be closer to her to spend that time in and around where she lived.
It was in the context of this relocation to Town B that the mother claims that the father was effectively seeking to intimidate her by being in and around the town in which she lived.
The father was charged with various offences, although ultimately these charges did not proceed. The ADVO was amended and the consequence of this episode was that the father moved back to Town C where he has remained living. In the course of cross-examination, the mother remained unsure as to the father’s motives in moving to Town B. It clearly had a negative impact on her psychological wellbeing at the time. In cross-examination, the father maintained that his motives were good although he conceded that it had a damaging impact on the mother’s anxiety and thereby on his aim of increasing his time with X.
In any event, it is now the case that the father lives, and has lived since early 2020, in Town C and his evidence, which I accept is that he will continue to live in Town C and has no intention of moving to Town B.
Importantly, notwithstanding the various concerns that the mother has had about the father’s conduct and the paternal grandparents’ conduct since separation, the mother concedes that X has largely enjoyed her time with the father. Particularly, the mother concedes that X has enjoyed it when they engage in activities that she likes and where she is free to be a daughter and granddaughter without reference to these proceedings, what has happened in the past, and in particular, without reference to her recollections or experiences when the father or the paternal grandparents may feel these are inconsistent with their recollection or experience.
It is also important to note that whilst X has not always spent time with the father pursuant to court orders, neither the father nor the paternal grandparents have initiated contravention proceedings. This is consistent with their position to the court that they are not interested in making the mother’s life more difficult but rather are focused on ensuring that X has a meaningful relationship with the paternal family.
The mother confirmed that although X sometimes did not wish to go and spend time with the father, this had been improving and she suggested that in part this might be because the father was collecting her and dropping her back to school, without the mother’s involvement.
The mother gave evidence that after a visit with the father, X had told her that the father was looking at buying a house close to the mother, which concerned the mother in circumstances where the father was not supposed to know where the mother lived.[30] The father gave evidence about this incident as did his friend Ms K who was at the father’s home at the time. The father said that he is looking for a home to buy in Town C and he was scrolling through some properties when a property, which is close to the maternal grandmother’s home popped up and X saw it and commented that it was the house close to the mother’s house.[31] The father says that he simply said yes and did not engage with this any further.[32] Ms K gave evidence which was consistent with the father’s version of events. I accept the father’s evidence about this and this incident is again reflective of the lack of trust between the parties and the potential for miscommunication and for feeding the mother’s concerns about the father’s behaviour and motives.
[30] See for example, Court transcript at page 357.
[31] Court transcript at page 403.
[32] Court transcript at page 403.
In cross-examination, the father demonstrated insight into X’s behaviour and what she needs even if she reports things that he has not said. For example, in discussing some of the things that X has alleged to have reported to her mother, the father said:[33]
I don’t believe that I have had those conversations with [X]. … However, I do not discount, after listening to evidence over the last couple of days, that [X] has said those things. I think [X] is a little girl torn at the moment and I think, very much, she’s trying to please her mother and she’s trying to please her father because [Ms Llewellyn] is correct in saying she is a people pleaser. She tries very hard and I think a lot of her anxiety would come from that.
…
I’m extremely mindful of the things I say to [X]- - -
… in regards to this whole event because it’s not really a place for [X], this event. [X] asks questions about it, but I deal with them very delicately and to the best of my ability at the time. I’ve still got a long ways to go into learning those things and how to deal with them better, but I think I’m dealing with them very well, actually.
[33] Court transcript at pages 479 to 480.
The father’s comments about what motivated him to agree not to press for his weekend time after the trial, in circumstances where X was spending the school holidays in Town L further suggest that he has some insight into what is important for X as opposed to what he might prefer. In this context, the following exchange occurred:[34]
[34] Court transcript at pages 483 to 484.
Mother’s counsel:        All right. So — and what was then — what was also put was that arrangements could be made for [X] to be here tomorrow and your counsel announced yesterday morning that — look, we’re not — my client isn’t pushing for that. We’re — just think [X] should stay where she is. Is that — was that genuinely your decision?---
Father:  Absolutely my decision. That’s correct. After - - -
Mother’s counsel:        Why would — why did you decide that?---
Father:After talking to [X] on Tuesday night - - - for 37-odd minutes, she — and also in the weeks prior to, she is so excited to be in [Town L]. It’s a – it’s a major event in her life that she looks forward to. She saves money for [her hobbies].
Mother’s counsel:        Does she? Okay?---
Father:There’s a lolly shop she told me she closed down this year, but there’s all these wonderful things they do up there. [Ms Llewellyn], [Mr M] and – and [N] is [Mr M]’s daughter I think is her name. Now, when you see the elation on her face about all of that, she has talked to me about it for nearly all of the visits about this, and I’ve been most recent visits, “Dad, it’s X amount of days and X amount of hours until I go to [Town L]”, etcetera, so I wouldn’t like to see that taken away from [X]. My – there is not a need here for me personally. We – I want the best for [X]. So [X] is staying is [Town L] and enjoying that trip. She told me on – sorry. [X] told me on Tuesday night, she said, “Mum is coming up on the weekend”. I said, “Are you opening some presents tomorrow, mate?” She goes, “No. We’re going to wait with the presents and then I will open them with Mum on the weekend”.
Mother’s counsel:        Is that what she said?---
Father:That’s what she told me on the phone, and that she had planned a dinner that last night, and which I advised my parents after I talked to her. And I said, “Hey. Even though the court is trying to do the right thing here, and, you know, provide this access, and [Ms Llewellyn] has agreed to this access for a phone call and the rest of it on her birthday that [X] had something on”, and I said, “Would you consider just leaving it to Thursday?” And I talked to [X] about it, and she – I said, “Are you busy tomorrow night?” And she goes “yes”. And I said – she goes, “Are Grandma and Grandpa going to ring?” She asked that question. And which I said to her, “Yes, of course”. I said, “Would you like them to ring you on your birthday or on Thursday like normal?” And she said, “Thursday would be better, Dad. We’re going out to dinner. We’ve got an ice cream layer cake”, and, you know - - -
Mother’s counsel:        She sounds pretty organised, doesn’t she?---
Father:  She’s extremely organised – that’s right – at times.
Mother’s counsel:        At times. Okay?---
Father:   Except when the anxiety and a few of those things take over.
Similarly, the father demonstrated an ability to put his own ego to one side if that was in X’s best interests when discussing whether he would agree to X continuing to see Mr E, even though it became apparent that the mother had given Mr E some information about the father which was not positive.
When asked whether he was at all concerned about the suggestion that Mr E might have formed an adverse view of the father based on information provided by the mother, the father, to his credit, said:[35]
No. It doesn’t matter to me. If it is the case, that’s up to me to - - - talk to [Mr E] about that. But the – the main point of [Mr E] is, is that from what we’ve heard here, that [X] is comfortable with him and making good ground, and also that [Ms Llewellyn] said she enjoys going there as far as making good ground on some of the things she’s working on. So I don’t really mind what [Mr E]’s opinion is. That’s for us to develop.
[35] Court transcript at page 500.
In the course of cross-examination by counsel for the ICL, the father conceded that the mother was a good mother and that she took good care of X.[36] He also agreed that having had the benefit of hearing from the mother and in particular, hearing the mother say that having looked back on her past behaviour and the way that she spoke to X and maybe that she has learned ways to manage her emotions differently, that he had greater hope for the future. In that context, the father agreed that he no longer was of the view that a change of residence was required.
[36] Court transcript at page 502.

The father was asked a series of questions about what he has learned from the various programs he has undertaken during the course of these proceedings. In this context, the following exchange occurred:[37]
[37] Court transcript at page 515.
ICL counsel:    Is it fair of me to say that the man sitting here today is pretty different to the one who [Ms Llewellyn] experienced when you were living together?---
Father:           Yes.
ICL Counsel:   And so she would probably be surprised now to see – to hear what she’s hearing from you?---
Father:Possibly, I was very surprised to hear some of the things from [Ms Llewellyn] the other day.
ICL Counsel:   Yes?---
Father:           It was nice to hear.
ICL Counsel:   Yes. So, is it the case that this having heard from each other might have actually helped the situation a little bit?---
Father:I – the term I used with my barrister was, I think the last few days have been more therapeutic for everybody than all the counselling we’ve received so far between us. That’s an assumption on other people’s behalf, but it’s just the feeling I got when we were here.
The father also accepted that being exposed to the arguing that went on in the household prior to separation, no doubt had an impact on X. He also conceded that X may have picked up on his anxiety as much as on the anxiety that the mother has experienced.
In terms of managing his own mental health, the father confirmed that he continues to see Ms O once a month or as otherwise required, he has also learned some calming strategies like going for a walk, breathing exercises and the like.[38] He also had medication which he can take if he has a fully manifested panic attack.
[38] Court transcript at page 407.
Ms D’s report
The court has the benefit of a report from Ms D, a child court expert. Given that I have had the benefit of hearing detailed and extensive evidence from each of the parties and the way in which each of the parties’ position has shifted in these proceedings, I do not propose to set out the substance of Ms D’s report in detail. It is clear that Ms D’s recommendations were premised on whether the court determined that the father had engaged in family violence or not and whether he had minimised his drug use or not.
Given the concessions made by the father both about the family violence during the relationship and his drug use during the relationship, together with the fact that none of the parties assert that there is at the time of trial ongoing family violence, as stated earlier in these reasons, it is not necessary for me to make determinations about the remaining issues in dispute on this question.
The issue for the court in making parenting orders is to consider what orders are in the child’s best interests. In determining this issue, the court must look at a range of factors as set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’) including the risk of harm to the child of spending time with a parent. In this case, assessing risk requires to have regard to what has happened in the past but also to assess what is likely to happen in the future by reference to all of the evidence.
In this case, a finding that a particular incidence of family violence occurred in the past is only relevant to the extent that it is indicative of the risk of that occurring in the future. I therefore understand Ms D’s observation that ‘if findings of family violence are made, certain orders ought follow’ to be a recommendation that if findings of family violence are made which indicate an ongoing risk in the future then certain orders ought to be made. In this case, both parents are seeking orders for X to spend time with her father on an increasing basis.
In circumstances where the father has demonstrated some insight into his behaviour and is continuing to engage in counselling support, I am satisfied that the proposed orders which provide for him to spend time with X on a graduated basis and minimise the interaction between the parents, strikes the right balance between managing the potential for him to behave inappropriately towards the mother in X’s presence with the benefit to her of a relationship with her father.
On the question of drug use, as stated I accept on the totality of the evidence that the father did use illicit substances during the relationship. I also accept that the evidence does not lead me to conclude that he has used such illicit substances since these proceedings have been on foot. I base this not only on the drug testing that he has undertaken during these proceedings, but also the absence of any other evidence which might suggest that he is involved in drug use, such as coming to the attention of the police or other authorities during that period.
The proposed orders which each party agrees to would include a restraint on the use of illicit substances during any time with X and also in the 48 hours prior to any such time. I also note that the father continues to engage in counselling and has given evidence that he will do after the conclusion of these proceedings. In those circumstances if he were to relapse, he has support that can assist him to deal with that issue.
Ms D’s summary of the parents and the paternal grandparents is consistent with the evidence they have given in these proceedings. In relation to X, Ms D made the following observations at 1965 and following:
[X] engaged easily with me around general topics, but she demonstrated a marked withdrawal when I shifted conversation to her family. When not discussing her family, [X] was chatty to the point of verbosity. It was difficult to interrupt her train of thought. She demonstrated a high level of skill in transitioning the conversation from her family to unrelated topics … [X] was an engaging and delightful child, although it is apparent that the current family situation is causing her significant distress.
Ms D observed X with each parent and with the paternal grandparents. Not surprisingly, the time with her mother was unremarkable and evidenced a warm and loving relationship. Ms D did observe, and note, however, that the mother did ask if the father and his parents had left as she did not wish to run into them. This was done in X’s presence. Ms D noted this as an example of the mother ‘communicating apparently inadvertently to [X] about her high level of fear of the paternal family.’ [39]
[39] Affidavit of Single Expert Witness Ms D affirmed and filed on 23 September 2024, paragraphs 2126 to 2127.
Ms D then said:[40]
Despite [X] taking some time to warm up initially, she appeared to enjoy her time with her father. [Ms Llewellyn] was appropriately gentle in his approach to [X]. There were no obvious concerns during the observation with [X] and either her father or paternal grandparents. The most significant issue was when [Ms Jack] asked about [X]’s scheduling, and this apparently made [X] uncomfortable. It is possible that [X] experienced this as a boundary transgression that her grandmother did not recognise.
[40] Affidavit of Single Expert Witness Ms D affirmed and filed on 23 September 2024, paragraph 2130.
In response to the specific questions asked of her, Ms D stated at 2810 and following:
In the event that all adults involved are able to meet [X]’s needs, including her psychological needs, then there is a benefit to [X] having a relationship with all of them. It is clear that all of the adults love [X] greatly, and it is unfortunate that this love has not translated into positive outcomes for her. [X] is currently stuck between the adult relationships, and all professionals involved with her have reported concern for her psychological wellbeing. I am concerned that [X]’s father and grandparents have superficial insight into the complexity of [X]’s psychological needs. I am concerned that [Ms Llewellyn] at times becomes so emotionally overwhelmed herself that she is unable to prioritise [X]’s psychological needs. The dual effects of these process mean that [X] is sometimes ‘unseen’ by all the adults around her, who instead focus on the other parties in this matter. If this matter cannot be resolved, then I am concerned that the potential benefits of [X] having relationships with all of the adults in this matter will be outweighed by the ongoing adverse impact of the conflict between them on her.
This observation, with respect, identifies the key issue of concern in this matter. Whilst the parties’ respective opening positions suggested that this issue could not be resolved, thankfully, there was significant movement by all parties to find a new way of interacting with each other which releases X from being stuck in the dispute between the adults in her life. Whilst there has been some movement, however, I am not satisfied that it is sufficient to warrant a move, albeit gradually, to an equal shared care arrangement.
Ms D also addresses X’s wishes as disclosed to her in her interviews. Relevantly, Ms D opined that:[41]
It is apparent that ultimately what [X] is seeking is a relationship in which her experiences are validated and in which she is permitted to have both positive and negative experiences of both her maternal and paternal families. This is what all children need – an understanding of the complexity of all human beings and that negative experiences within relationships do not mean that the entire relationship is bad. If, for instance, the grandparents were able to hold their own frustrations when [X] refers to them banging on the door in [late] 2021, and say to her ‘yes, that must have been scary for you. We never wanted to make you feel scared and we will never to that in the future’, it is likely that [X] would feel validated, and her psychological distress would decrease. Such a comment does not require that the grandparents agree that they banged on the door, only that they acknowledge [X]’s experience. They do not need to prove themselves right, nor does [Ms Llewellyn]. For example, if [X] refers to him shouting in the past, he does not need to say that did not happen, rather, he could offer, ‘I haven’t always managed myself well. I can see how that would have been scary, and I am working hard to not do that in the future.’
Similarly, [Ms Llewellyn] needs to take steps to manage her own anxiety and clearly give [X] space to love her father and paternal grandparents. I am concerned about the comments she has made in front of [X], in a number of settings including at the observations in this assessment, and the repeated messaging this sends to [X]. My impression is that [Ms Llewellyn]’s comments are impacts of her own dysregulation and ongoing trauma from the relationship with [Ms Llewellyn]. However, this does not reduce the impact on [X].
[41] Affidavit of Single Expert Witness Ms D affirmed and filed on 23 September 2024, paragraph 2925.
Finally, in discussing X’s needs, Ms D further opined:[42]
[X] requires stability in her family system as soon as possible, which requires that her parents resolve the current legal dispute. This would then allow [X]’s treating clinician to support her to adapt to Final Orders as appropriate, [X] further requires support for anxiety management, and she may require focused social skills training, depending on her progression at school once Final Orders are made.
[42] Affidavit of Single Expert Witness Ms D affirmed and filed on 23 September 2024, paragraph 3150.
Ms D then proceeded to make certain recommendations. None of the parties seeks to rely upon those recommendations after having heard all of the evidence in this case.
Having regard to the evidence on the whole and by reference to the matters in section 60CC to which the court must have regard to determine what parenting orders are in X’s best interests, I find that the orders proposed by the ICL, with some minor adjustments given the time that has passed since the trial, are in X’s best interests.
They provide a mechanism for both parents to continue to be involved in making long term decisions for X but ultimately give the mother the final say, thereby avoiding the parties from becoming involved in an intractable dispute if they are unable to agree.
They also provide a process by which X can slowly increase her time with her father commensurate with her age and stage of development, and provide a mechanism for her to have a relationship with the extended paternal family. Importantly, they provide for X the security that she has one home base, in the mother’s home, from which she can safely enjoy her relationship with the father and the paternal family. The proposed move, ultimately to a 5 night a fortnight and half school holidays will provide the father with sufficient time to actively be involved in all aspects of X’s life. A move to a 7/7 arrangement would, in my view, be unduly disruptive for a girl who has her own anxiety issues to deal with.
Finally, I am not satisfied that it is appropriate for default orders to be made as sought by the paternal grandparents in the event that the time provided for in these orders with the father does not occur. First, the parties are required to comply with these orders and if they do not, absent a further application on proper grounds, a non-complying party will be at risk of a contravention application. Whilst I understand that the paternal grandparents would not wish to re-engage in litigation, a contravention application needs to be dealt with in an appropriate manner, and it is not appropriate for effectively a self-executing order to be made in advance, without any understanding of the surrounding circumstances.
Moreover, the paternal grandparents currently live in Queensland and their evidence to the court is that they are looking at buying a property in Town C and splitting their time between Queensland and Town C. It is not clear what default orders would be in X’s best interests in those circumstances, particularly given that at the moment, what X needs is stability and the removal of the pressure that she has no doubt felt by being caught up in this dispute.
I also note that as the proposed orders provide for X to spend time with her father on her birthday and Christmas, there will be an opportunity for X to contact her grandparents on these particular special occasions without the need for a further order that this occur whilst X is in the mother’s care.
CONSIDERATION
Parental decision-making
As stated, the mother and the ICL seek orders that the mother have sole decision making in relation to major long term decisions subject to consulting the father. The father seeks equal shared parental responsibility.
Having regard to the totality of the evidence, I find that the orders sought by the ICL and supported by the mother, are in X’s best interests. The orders will continue to provide the father with input into decisions about major long-term issues for X, but the mother will ultimately have the last say. Given the history of this matter, and the fact that notwithstanding the shift which appears to have occurred during the hearing, these parents have not been able to communicate at all for the last three years, it is not likely that they will be able to communicate effectively to make such long term decisions.
X, as noted above, has become stuck in an entrenched dispute between her parents. I am of the view that it was common ground that each party agrees that this must stop. X is now 10 years of age. There will need to be a decision about high school in a couple of years’ time. Other than that, it is not apparent what other long-term issues may need to be determined in the coming years.
A process which allows input for the father, but avoids potential disputes if agreement cannot be reached, will support X’s need for stability.
I therefore find that it is in X’s best interests for the mother to have sole decision-making ability, in the terms proposed by the ICL and supported by the mother.
Time with each parent and the paternal grandparents
In considering what parenting orders the court ought to make, the court is required to have regard to the factors set out in section 60CC of the Act. These factors will be dealt with in turn.
(a) What arrangements would promote the safety of the child and each person who has the care of the child and in considering this factor, the court must have regard to any history of family violence involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family
As discussed above, notwithstanding the mother’s allegations of family violence during the relationship and post separation and the father’s drug use, the mother proposes that X spend alternate weekends with the father (and that the paternal grandparents can also spend time with her during the father’s time). I am satisfied on the basis of the totality of the evidence that the father has demonstrated insight into the impact of his behaviour on the mother. I am also satisfied that the father can abstain from drug use for a significant period and moreover that any risk of relapse can be managed through the ongoing psychological support that he is currently engaged in.
The key ongoing risk to X is to her psychological wellbeing from continuing to be involved in a dispute between the key adults in her life. The orders proposed by the father would not support X’s psychological wellbeing in that I find on the totality of the evidence that X needs to have a solid home base where she feels supported and secure. That is with her mother who has been her primary carer since birth and with whom she has continued to live since separation.
For reasons explored above, the mother too has her own emotional vulnerabilities and providing X with time in her father’s home will be a protective factor against exposure to those vulnerabilities. In addition, the mother has given evidence that she, like the father, has engaged and will continue to engage with psychological support to help her not only deal with her anxieties, but also to enable her to develop strategies so that she can appropriately shield X from those anxieties.
The orders proposed by the ICL strike the appropriate balance between providing X with a home base but also providing her with a steady progression of time with her father in a graduated and age appropriate way.
The graduated increase in time will also allow the mother to adjust to X spending more time in the father’s home with psychological support.
The order requiring the parents to continue to facilitate X attending upon Mr E will also provide X with the psychological support that she may require as she transitions into more regular and consistent time with her father.
(b) Any views expressed by the child
As noted above, in her interview with Ms D, X expressed some negativity towards spending more time with her father. However, Ms D noted that this was not entirely reflective of the observations that she made of X with her father and the paternal grandparents.
Given her age and the circumstances in which the relationship between X and her father and the paternal grandparents has been disrupted, I have given some weight to X’s views in crafting the orders to be a little more gradual than those proposed by the ICL.
(c) The developmental, psychological, emotional and cultural needs of the child
I have discussed the emotional and psychological needs of X in detail.
The orders which provide for an increase in her time with the father supported by ongoing sessions with Mr E in my view, having regard to the totality of the evidence, strike the right balance in this regard.
(d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
I have discussed the capacity of each of the parents to address X’s psychological needs. As stated, each parent has their own vulnerabilities in this regard. Both parents however, are seeking psychological support and appear to have understood the importance of focussing their efforts on addressing their own limitations so that they can be there to support X in her needs. So that X is seen and heard.
(e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so

It is acknowledged by all parties that there is a benefit to X of having a relationship with both her parents and the paternal grandparents.
(f) Anything else that is relevant to the particular circumstances of the child
I have not made specific orders for the parents to continue to engage with their respective psychological supports. I have however, had regard to the fact that they have both demonstrated help seeking behaviour and there is no reason to think that they will not continue to do so in the future as and when required.
CONCLUSION
For each of these reasons, I find that it is in the best interest of X to make the orders set out at the commencement of these reasons and I so order.

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Associate:
Dated: 18 March 2025

File number:	SYC 308 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	18 March 2025
Catchwords:	FAMILY LAW – PARENTING – application for final parenting orders – child aged 10 – child diagnosed with anxiety – where the parties each seek orders for the father to spend time with the child on a gradual increasing basis – where the mother seeks sole decision making responsibility – where the father seeks equally shared decision making responsibility – consideration of the best interests of the child under s 60CC of the Family Law Act 1975 (Cth) – final parenting orders made.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Division:	Division 2 Family Law
Number of paragraphs:	145
Date of last submissions:	11 October 2024
Date of hearing:	7, 8, 9, 10 and 11 October 2024
Place:	Melbourne
Counsel for the Applicants:	Mr J Haddock
Solicitor for the Applicants:	Friedlieb Fox McLeod
Counsel for the First Respondent:	Mr D Whitchurch
Solicitor for the First Respondent:	Myers Family Law
Counsel for the Second Respondent:	Mr C Wilson
Solicitor for the Second Respondent:	Pennicott Weir Lawyers
Counsel for the Independent Children's Lawyer:	Ms S Damon
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 308 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR JACK First Applicant MS JACK Second Applicant
AND:	MS LLEWELLYN First Respondent MR LLEWELLYN Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	18 MARCH 2025