Kelsey & Bell - [2022] FedCFamC2F 1606

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kelsey & Bell [2022] FedCFamC2F 1606

File number(s): PAC 4962 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 23 November 2022

Catchwords: FAMILY LAW – CHILDREN – biological mother of children deceased – where it is uncontested the children will continue to live with the maternal grandparents - application by maternal grandparents for father to spend indefinite supervised recognition time with children– risk of mental health issues and potential drug and alcohol misuse by the father assessed– application by the maternal grandparents to change the surname of the children – supervised time graduating to unsupervised time between father and children with restraints ordered.

Legislation:
Australian Passports Act 2005 (Cth) ss 7 & 11

Births, Deaths and Marriages Registration Act 1995 (NSW) s 28

Family Law Act 1975 (Cth) ss 68B, 65D, 60B, 60CC, 61AD

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Chapman and Palmer [1978] FamCA 86

Dieter & Dieter [2007] FamCA 608

Isles & Nelissen [2022] FedCFamC1A 97

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

M & M [1988] HCA 68

Napier & Hepburn [2006] FamCA 1316; and

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 166

Date of hearing: 22-23 August 2022

Place: Parramatta

Solicitor for the Applicants: Ms Hamilton of Counsel

Solicitor for the Respondent Mr Reeves of Counsel

ORDERS

PAC 4962 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KELSEY

First Applicant

MR KELSEY

Second Applicant

AND:
MR BELL

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

23 November 2022

Amended pursuant to rule 10.13 of the Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 (Cth) on 24 November 2022.
THE COURT ORDERS THAT:
Parental Responsibility
1.The father and maternal grandparents shall have equal shared parental responsibility for the children Z, born in 2012 and W, born in 2015 (“the children”).

Live With
2.The children live with the maternal grandparents.

Time with the father - Private Supervision
3.That until time between the children and the father can occur at the Contact Centre pursuant to Order 7 below, the children shall spend time with the father for a period of three hours on the third Sunday of each month commencing Sunday 16 18 December 2022 with such time to be supervised by “B Contact Service” (“the Service”).
4.The father is to be responsible for and pay as and when they fall due all costs and fees charged by the Service.
5.To facilitate the above order, the parties are to contact the convenor of the Service by no later than 4:00 pm on 30 November 2022 to arrange the earliest possible intake interviews and complete all such documents and give all such consents as are necessary to enable the convenor of the Service to assess whether or not they can provide supervised time.
6.If the Service during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Service recommends in writing to the parties a variation of these Orders, then either party may on seven days written notice to the other party and the Court restore the matter to the list.

Time with the father – Contact Centre
7.From the time C Counsellors at Suburb D (“the Centre”) is available until 1 December 2024 the children are to spend time with the father at the Centre on the first and third Sunday of each month for a period of 4 hours or such other period as may be available through the Centre.
8.To facilitate the above Order, the parties are to contact the Centre by no later than 4:00pm on 30 November 2022 to arrange the earliest possible intake interview and do all such things, sign all documents and give all consents necessary to enable the convener of the Centre to assess whether or not the Centre can provide supervised time for the children and the father.
9.The father is to pay any costs of the Centre arising from the supervision of the children’s time with him including but not limited to any fees charged by the Centre.
10.The maternal grandparents or either of them shall deliver the children to and collect the children from the Centre at the times specified by the Centre and on each occasion shall promptly leave the building and the vicinity unless requested to remain by a staff member of the Centre.
11.The father must not attend the Centre or its vicinity before the children’s time with him is to start and must promptly leave the Centre and the vicinity when his time with the children is to end.
12.If the Centre during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these Orders, then either party may on seven days written notice to the other party and the Court restore the matter to the list.
13.The period of time with the father provided in these Orders may vary by reason of the closure of the Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Centre.

Time with the father – Graduating and Unsupervised
14.From 2 December 2024 until 30 June 2025 the children shall spend time with the father in the Sydney Metropolitan area and at a public location:
(a)from 10:00 am to 2:00 pm on the first and third Sunday of each month;
(b)from 10:00 am to 2:00 pm on Father’s Day;
(c)from 10:00 am to 2:00 pm on Boxing Day;
(d)from 10:00 am to 2:00 pm on Easter Saturday.

15.From 1 July 2025 until 1 December 2025 the children shall spend time with the father in the Sydney Metropolitan area:
(a)from 10:00 am to 2:00 pm on the first and third Sunday of each month;
(b)from 10:00 am to 2:00 pm on Father’s Day;
(c)from 10:00 am to 2:00 pm on Boxing Day;
(d)from 10:00 am to 2:00 pm on Easter Saturday.

16.From 2 December 2025 until 1 December 2026 the children shall spend time with the father in the Sydney Metropolitan area:
(a)from 10:00 am to 4:00 pm on the first and third Sunday of each month;
(b)from 10:00 am to 4:00 pm on Father’s Day;
(c)from 10:00 am to 4:00 pm on Boxing Day;
(d)from 10:00 am to 4:00 pm on Easter Saturday.

17.From 2 December 2026 until 31 June 2027 the children shall spend time with the father in the Sydney Metropolitan area:
(a)from 9:00 am to 5:00 pm on the first and third Sunday of each month;
(b)from 9:00 am to 5:00 pm on Father’s Day;
(c)from 9:00 am to 5:00 pm on Boxing Day;
(d)from 9:00 am to 5:00 pm on Easter Saturday.

18.From 1 July 2027 until 31 December 2027 the children shall spend time with the father:
(a)from 2:00 pm Saturday to 2:00 pm Sunday on the first and third weekend of each month;
(b)from 2:00 pm Saturday to 2:00 pm Sunday on the Father’s Day weekend;
(c)from 9:00 am Boxing Day to 2:00 pm 27 December;
(d)from 2:00 pm Good Friday to 2:00 pm Easter Saturday.

19.Thereafter the children shall spend time with the father as follows:-
(a)from 2:00 pm Saturday to 5:00 pm Sunday on the first and third weekend of each month;
(b)from 2:00 pm Saturday to 5:00 pm Sunday on the Father’s Day weekend;
(c)from 9:00 am Boxing Day to 5:00 pm 27 December;
(d)from 9:00 am Good Friday to 5:00 pm Easter Saturday; and
(e)such further and/or other times as the parties may agree.

20.That in the event the children’s time with the father falls on the Mother’s Day weekend, then the children’s time with the father will be suspended on Mother’s Day and in lieu thereof the children will spend time with the father pursuant to the orders on the following weekend.
21.For the purposes of the children’s time with the father on an unsupervised basis the maternal grandparents are to advise the father in writing no later than 14 days prior to such time first occurring the location and address of where the father is collect the children from and return the children to at the commencement and conclusion of his time with them and the father shall ensure he collects the children from and returns to the children to the nominated location.

Conditions regarding the Children’s Time with the Father
22.The children’s time with the father will be suspended in the event he fails to attend for time with the children on two consecutive occasions without a reasonable excuse.
23.That until 1 December 2024 the maternal grandparents (or either of them) are permitted to request that the father undertake random supervised chain of custody urinalysis drug screening by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard (“drug screening”) as follows:-
(a)Requests for the father to undertake drug screening shall not occur more frequently than once every two calendar months.
(b)Such request is to be communicated by either of the maternal grandparents to the father by both email and SMS and is to only be made on a weekday.
(c)The father is to acknowledge receipt of such request by sending an SMS or email in reply to the sender of the request within 4 hours of his receipt of such request.

24.Upon receipt of a request in accordance with Order 23, the father shall undertake the drug screening within 48 hours and is to provide the maternal grandparents or either of them copies of the results of the drug screening test within 48 hours of him receiving same and the maternal grandparents or either of them are to acknowledge the receipt of same within 8 hours.
25.That in event the father:-
(a)provides a urine sample that is positive for illicit drugs; or
(b)fails to comply with a request to undergo urinalysis testing without reasonable excuse; or
(c)provides a sample that does not meet the necessary integrity standards for urinalysis testing;
(d)then unless otherwise agreed by the parties in writing (including SMS and noting that such an agreement is required on each occasion), the children’s time with the father in accordance with Order 7 shall be suspended until such time as the father produces two consecutive drug screening results that are negative for any illicit drugs with such tests to be taken no sooner than a calendar month apart.

FaceTime with the Father
26.That the children will have FaceTime with the father between 4:30 pm and 5:00 pm on the following occasions if they are not spending face to face time with him at that time:-
(a)on the first and fourth Sunday of each month;
(b)the first day of each New South Wales public school year;
(c)on the day after each of the children’s birthdays; and
(d)on 10 April of each year.

27.For the purposes of this time the father shall initiate contact on a mobile telephone number provided to the father within 14 days of the date of these orders and the maternal grandparents are to ensure the children have privacy during such calls and are in a room without distractions including the television.

Father’s Attendance at Activities and School Events
28.The father is at liberty to attend for parent/teacher interviews for each of the children and is to ensure that such attendance is at a separate time to the maternal grandparents.
29.In addition to the time the children spend with the father pursuant to the orders above, the father is able to attend all school and extracurricular activities to which parents can attend and is at liberty to talk with the children if permitted to do so by the organiser of the event including any weekend sport the children are undertaking.

Communication between the Parties
30.That within 7 days of the date of these Orders the parties shall exchange email addresses and mobile telephone numbers and that thereafter all non-urgent communication between the parties shall occur via email. Urgent communications only between the parties shall occur via telephone call or text message.

Provision of Medical Information by the father
31.That the father shall:
(a)engage his treating psychiatrist and such other health professionals as recommended by his general medical practitioner for the purposes of assistance and treatment in managing his mental health;
(b)until 1 January 2029 authorise his treating psychiatrist and such other health professional to forward to the maternal grandparents a letter every three month period with the first letter to issue in February 2023. Such letter is to advise the maternal grandparents of the father’s engagement with the psychiatrist and compliance or otherwise with recommendations for treatment, including compliance with his medication regime; and
(c)bear the costs associated with obtaining such correspondence.

The Provision of Information
32.That the father is at liberty to liaise directly with the children's school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children's progress and copies of school reports. The Father is at liberty to provide a copy of these Orders to all such schools, sporting bodies and the organisers at such extra-curricular activities that the children attend.
33.The father is at liberty to liaise directly with the children's treating medical practitioner, health service provider or institution to obtain all necessary information concerning the child. The Father is at liberty to provide a copy of these Orders to all such medical health providers the children may attend upon.
34.To facilitate the above Order, the maternal grandparents are to provide full particulars of any medical practitioner, health service provider or institution attended by the children to the father in a timely manner after such attendance.
35.That the parties shall ensure the other party is kept informed as soon as is reasonably practicable of:-
(a)Any serious medical problems or illness suffered by the children whilst in their care;
(b)any medication that has been prescribed for the children;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)any social, school or religious functions which the children are to attend; and
(e)any other matter relevant to the welfare of the children.

The Children’s Surname
36.That the maternal grandparents are permitted to add the name Kelsey to the children’s names and for that purpose:
(a)within 21 days, the maternal grandparents or either of them are to do all things necessary to apply to the Registrar of the Births, Deaths and Marriages for the State of New South Wales to change the name of the children from Z Bell born in 2012 to Z Bell-Kelsey and W Bell born in 2015 to W Bell-Kelsey; and
(b)it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the maternal grandparents or either of them, give effect to this Order by doing all acts and things necessary to register the change of name of Z Bell born in 2012 to Z Bell-Kelsey and W Bell born in 2015 to W Bell-Kelsey pursuant to Section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW).

Application for Passport
37.That pursuant to sections 7 and 11 of the Australian Passports Act 2005 (Cth) the maternal grandparents be permitted to apply for an Australian Passport for Z born in 2012 and W born in 2015 to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form.

Overseas Travel
38.That the children are permitted to have an Australian Passport and travel internationally and for that purpose the following shall apply:
(a)the maternal grandparents are to provide the father with 2 months written notice of their intention to travel overseas;
(b)the maternal grandparents are to provide to the father a full itinerary relating to the overseas travel including details of the air travel including copies of their return tickets, accommodation and contact details for the children as soon as practicable before departure; and
(c)the father shall spend make up time with the children upon their return as agreed between the parties in writing and failing such agreement, such make up time is to occur within 21 days of the children’s return to Australia.

Restraints
39.That pursuant to s68B of the Act, the father is hereby restrained by injunction from:
(a)Physically disciplining or striking the children;
(b)consuming or being under the influence of illicit drugs or alcohol 8 hours prior to or while caring or spending time with the children pursuant to these Orders;
(c)bringing the children into contact with any person that he knows or reasonably suspects to be under the influence of illicit drugs, substances or alcohol to excess during those periods that he is spending time with the children;
(d)taking or permitting the children to be taken or remain at any location or venue where the father knows or suspect that illicit drugs and/or paraphernalia will be present during those period that he is spending time with the children; and
(e)abusing, insulting, belittling, rebuking or criticising the maternal grandparents to or in the presence of the children or any of them and from permitting any other person to do so and is further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

40.All extant applications are otherwise dismissed.

THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kelsey & Bell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION

These proceedings relate to four children who tragically lost their mother in 2020; namely:-
·X born in 2009 currently aged 13 years (“X”);
·Z born in 2012 currently 10 years of age (“Z”);
·W born in 2015 currently aged 7 years and three months (“W”); and
·Z born in 2018 currently aged 4 years and 8 months (“Z”).
Subsequent to this event all four children have lived with the applicant maternal grandparents; Mr and Mrs Kelsey.

The first respondent in the proceedings is the father of X. The second respondent; Mr Bell, is the father of Z and W. The third respondent is the father of Y. The third respondent was living with the mother at the time of her passing.
The parenting arrangements for Y and X were determined by me on an undefended basis on 11 November 2021 and final parenting Orders were made that X and Y live with the maternal grandparents and spend no time with their respective fathers.
The outstanding issue for determination is the parenting arrangements for Z and W (“the children”). To his credit the father understands that, despite his love for them and his desire that they live with him, it is in the children’s best interests in the circumstances to remain living with the maternal grandparents and their siblings to ensure continuity and stability of their care arrangements. He seeks that the children spend time with him on a graduating basis. The father does not seek block holiday time.
The maternal grandparents seek that the children spend indefinite supervised “recognition time” with the father only in circumstances where they allege unsupervised time poses an unacceptable risk of harm to the children.
AGREED FACTS
The agreed chronology of the parties (Exhibit J2) is as follows:-

Date

Event

1970

Maternal grandfather born.

1973

Maternal grandmother born.

1990

Maternal grandparents marry.

1988

Father born.

1989

Mother born.

2009

Mother has child X with Mr Perrins.

2011

Mother and father commence relationship.

2012

Child Z born.

2015

Child W born.

2018

Mother has child Y with Mr Reed.

2020

Mother commits suicide in the family home whilst living with the children and her then partner Mr Reed.

06/08/2020

The maternal grandparents take the children to their home and the children remain in their care.

29/08/2020

Maternal grandparents facilitate time between the father and Z and W in their presence.

19/09/2020

Initiating Application filed.

14/10/2020

Father files Response.

14/10/2020

Matter adjourned for Interim Hearing.

20/11/2020

Child Inclusive Child Dispute Memorandum produced.

24/11/2020

Interim Orders made by the Court for the children to live with the maternal grandparents, Z and W to have FaceTime on two occasions per week with the father and for the maternal grandparents to share parental responsibility to the exclusion of the father save for changing the children’s names and providing for the father to undertake hair follicle testing.

09/08/2021

Family Report produced.

11/11/2021

Final Orders made for X and Y on an Undefended Basis as against the 1^st and 3^rd Respondent fathers.

22/08/2022

Matter listed for Final Hearing.

BRIEF BACKGROUND

I accept the father’s evidence as to a brief background of his relationship with the mother as follows:
·The relationship commenced in or around 2011. X, the mother’s eldest child was 18 months old at this time. Around this time they commenced living in a two bedroom house in Suburb E. They subsequently moved to a house in Suburb F and lived there for approximately three years. Z was born during this time.
·In approximately February 2015 the mother and father separated for approximately two months and recommenced their relationship in approximately April 2015. At this time they moved to Suburb G together before W was born in 2015.
·In approximately April 2016 the mother and father separated again and the mother went to live with her parents in Suburb H with the children and the father moved into the paternal grandmother’s home in Suburb J.
·The mother and father were only separated for approximately four weeks and then recommenced their relationship although they continued to live separately. I accept that the mother told the father that she did not want her parents to know that they had recommenced their relationship as the maternal grandparents were not supportive of the relationship.
·In approximately October 2016 the mother and children moved into a home at Town K.
·The mother and father separated on a final basis in approximately March 2017.
THE PARTIES’ PROPOSALS
The applicant grandparents seek orders on a final basis in accordance with the Minute of Order attached to their Case Outline filed 15 August 2022 that, broadly:-
·the applicant maternal grandparents have shared parental responsibility for the children to the exclusion of the father;
·the children live with the maternal grandparents;
·the children spend time with the father for a period of four hours each alternate month on a Sunday supervised by a private supervisory agency such as L Contact Centre or B Contact Service with the father to be solely responsible for the costs of the supervision;
·the father is to confirm 21 days prior to each supervised visit that such time will be occurring;
·the children have Zoom time with the father on the first Sunday of each alternative month;
·the children have further Zoom time with the father on each of their birthdays, Christmas Day and Father’s Day each year;
·all correspondence between the parties occur by way of email;
·the father be provided with information by each of the children’s schools usually available to parents;
·the maternal grandparents be authorised to change the children’s surname from Bell to Kelsey; and
·the maternal grandparents be authorised to apply for passports for the children and thereafter travel internationally with the children without the prior consent of the father.
During final submissions the court was advised that the maternal grandparents would consent to an order that the name “Kelsey” be added to the children’s names as a surname with the name “Bell” to remain. It was not agreed that this would be hyphenated.
The respondent father seeks orders on a final basis in accordance with the Amended Response to Initiating Application filed 25 February 2022 broadly that:-
·the father and maternal grandparents have shared parental responsibility for the children;
·the children live with the maternal grandparents;
·the children spend time with the father on a graduated basis such that:-
·for a period of four months, time will occur each alternate Saturday for a period of four hours supervised by M Contact Centre or C Counsellors with the father to pay the costs associated with such supervision;
·for four months thereafter time will occur each alternate Saturday between 9 am and 3 pm to be unsupervised and occur in the Sydney metropolitan region at a public location;
·for four months thereafter each alternative weekend from the conclusion of school on Friday until 5 pm Saturday with such time to be unsupervised and occur in the Region N; and
·thereafter, each alternate weekend from the conclusion of school on Friday until 5 pm Sunday as well as overnight during special occasions such as Christmas and the Easter period.
·the children have FaceTime or time via the “Duo Mobile” application each Wednesday from 4:30pm to 5 pm;
·each party keep the other advised at their current telephone number and email address;
·the father will be responsible for collecting and returning the children to the maternal grandparents home at the commencement and conclusion of their time with him;
·the father will undertake urinalysis drug testing for a period of 12 months as requested by the maternal grandparents with such request to be made no more than once every calendar month;
·the children’s time with the father would be suspended in the event the father tests positive for illicit drugs and will not recommence until the father produces two consecutive negative urinalysis drug screening results; together with
·various injunctive orders to be made restraining the behaviour of all parties; and
·orders with respect to communication and authorities relating to the children.
During final submissions the court was advised that the father would agree to the orders sought by the maternal grandparents that they be at liberty to obtain passports for the children.
THE ISSUES
In accordance with prior directions of the Court, the parties prepared an agreed Joint List of Issues (Exhibit J3) as follows:
1. Whether or not sole parental responsibility for [Z] and [W] should be allocated to [Mr and Ms Kelsey].
2. Whether or not [Z] and [W] should spend time with [Mr Bell].
3. The frequency of communication between [Z] and [W] and [Mr Bell] and the difficulties engaging [W] in such communication.
4. Whether or not the children’s surnames can be changed to [Kelsey].
5. Whether or not Mr and Mrs [Kelsey] can arrange for [Z] and [W] to be issued with a passport and travel outside of Australia.
6. Whether or not, and if so, how [Mr Bell]’s drug use may impact on [Z] and [W].
7. Whether or not, and if so, how [Mr Bell]’s mental health may impact on [Z] and [W].
8. Whether or not [Mr Bell] perpetrated family violence against [Ms O]; and if there is a risk that the children would be exposed to family violence.
9. Whether or not [Z]and [W]would be at risk of being abused, neglected and, or re-traumatised by spending time with [Mr Bell].
Whilst I have read and considered all of the material relied upon by the parties in these proceedings I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
THE FAMILY REPORT
A Family Report was prepared for the purposes of the final hearing by Ms P, a Court Child Expert (“the Court Child Expert”). She has tertiary qualifications including a Bachelor of Arts (Education and Sociology), Master of Social Work (Applied) and a Master of Arts Couple and Family Therapy. There was no challenge to her expertise and I am satisfied she is suitably qualified to provide her opinion to the Court.
The Court Child Expert prepared two reports in this matter; the CIC and the Family Report. Both were read at the request of the parties. Prior to giving evidence the Court Child Expert had read material filed by the parties including the affidavits relied upon by each of the parties at trial.
The Court Child Expert interviewed each of the parties and the children on 5 November 2020 for the purposes of the CIC. All parties were interviewed again on 21 June 2021; the maternal grandparents by video link and the father by telephone as a result of the COVID 19 pandemic. The children were interviewed by video on 13 July 2021. There was a further brief telephone call with the maternal grandmother on 3 August 2021. Observations with the children and each of the parties was not possible due to the COVID social restrictions in place at the time. The children had been observed previously with the maternal grandparents during the interviews for the CIC. The Court Child Expert opined that her assessment is limited in terms of the children’s relationships with the father in circumstances where an observation of their interactions was not possible. I accept and find that this is a limitation of the Family Report and more specifically a significant limitation in being able to assess the relationship between the children and the father.
Neither of the parties were asked during the course of cross examination as to whether there were any inaccuracies as to the reporting of what they had said to the Court Child Expert. No submissions were made that the report was inaccurate in its reporting. I accept and find that the Court Child Expert accurately records the parties’ statements to her during the interviews in both the CIC and the Family Report.
There were contradictory recommendations contained within the Family Report. During her oral evidence the Court Child Expert confirmed the recommendations made by her in paragraphs 106 – 108 of the Report as follows:-
·that the maternal grandparents have parental responsibility for the children;
·that the children live with the maternal grandparents; and
·that the children spend supervised time with the father for four hours once every two months.
The Court Child Expert opined that:
“in terms of meeting [W] and [Z’s] need for stability and surety and to ensure their psychological, emotional, and physical safety in light of the unknown in relation to [Mr Bell]’s drug and alcohol use and mental health, it is recommended that any time [W] and [Z] spend with [Mr Bell] is supervised.”[1]
[1] Family Report of Ms P dated 12 August 2021, paragraph 102 (“Family Report”).
It was the Court Child Expert’s further recommendation that any time between the children and the father occur in person rather than video call in circumstances where the video calls do not appear to be a helpful means by which the children spend time with the father.[2]
[2] Ibid.
Having read the updating material during the course of her oral evidence the Court Child Expert affirmed her continued support of her written recommendations as contained within the Family Report. The Court Child Expert further clarified her recommendations such that it was her view that: –
·the supervision of the time between the children the father should continue until both boys are 14 years of age; therefore Z by this time would be 17 years of age;
·she does not support the children having Zoom time with the father on their actual birthdays but would support this occurring on the day prior or day after the children’s birthdays, on Father’s Day and Christmas Day each year.
·The children are too young to have an appropriate understanding of making a decision themselves as to their surnames being changed to Kelsey. She was of the view that the children having both Bell and Kelsey in their names was a good idea as it meant that the children could use Bell when they wished to.
The Court Child Expert’s oral evidence was that her recommendations were grounded on her “absolutely” accepting the children’s reporting to her as to their experiences including:-
·witnessing family violence in the household of the mother and father,
·that the father has hit them with a form of utensil, and
·that on occasions the father has not provided food for the children whilst they were in his care.
THE CHILDREN
These children have had to experience the most tragic circumstances. Z witnessed his deceased mother laying on the floor and probably witnessed his elder sister X trying to resuscitate their mother. The maternal grandmother describes Z upon collecting him from the home the night his mother had committed suicide as “emotionless.”[3] The maternal grandmother deposes and I accept that the children’s ability to deal with the death of their mother ebbs and flows “Sometimes the children are incredibly sad about the death of their mother and other times they are happy enough to get on with the day.”[4]
[3] Affidavit of Ms Kelsey filed 17 June 2022, paragraph 7 & 9 (“Maternal grandmothers affidavit”).
[4] Maternal grandmother’s affidavit, paragraph 11.
Z is in year four at Q School, a few minutes’ drive from the maternal grandparents’ home. Z has been diagnosed with specific learning difficulties and a processing disorder. At school Z has an individualised learning plan, additional learning supports with the school counsellor and a special learning support teacher. The maternal grandmother describes him as being a quiet and sometimes anxious child; routine is important to his daily functioning.[5] He is described by the Court Child Expert as being a “shy, reserved, and polite child.” Understandably given his past experience Z expressed to the Court Child Expert that he worries that something could happen to his grandparents when they are not with him and his siblings.[6] The Court Child Expert opined that this shows that Z may still be experiencing some impacts of the trauma he has experienced[7] and I accept that this may be the case.
[5] Maternal grandmother’s affidavit, paragraph 33.
[6] Family Report, paragraph 81.
[7] Ibid, paragraph 102.
W is in year one at Q School. He has been diagnosed with oppositional defiant disorder. He suffers from asthma and takes Flixotide Jnr and Ventolin as a preventative measure twice per day in the morning and evening and at other times when required. W requires several medical procedures. The maternal grandmother deposes that he is confident, popular and has a lot of friends. He is affectionate and loves to be the centre of attention.[8] The Court Child Expert reported that W presented as a “happy, carefree and buoyant child.” [9]
[8] Maternal grandmother affidavit, paragraph 35-38.
[9] Family Report, paragraph 84.
The children had approximately six sessions with counsellors at the National Centre for Childhood Grief in 2020. This service continues to be available for the children any time in the future they need additional support.[10]
THE WITNESSES
[10] Maternal grandmother affidavit, paragraph 29.
The Maternal Grandmother
At the time of the interviews for the Family Report the maternal grandparents were living with the children and their adult daughter at rented premises in Suburb H, New South Wales. The maternal grandmother works two mornings per week from 9:00 am to 12:00 noon as an educator and one day per week from 8:00 am to 3:30 pm as a carer. The paternal grandfather works full time as a tradesman.
The maternal grandmother clearly does not have a high regard for the father. She was very clear at the commencement of her cross examination that the mother made decisions as to parenting that she did not agree with including allowing the father to care for the children whilst the mother was at work. The maternal grandmother’s oral evidence was that the maternal grandparents are trying to give the children a stable, reliable and consistent upbringing and she has not seen the father show any of those traits in the 10 years they have known him.
The maternal grandmother was loathe to make concessions. Despite evidence that her daughter had occasioned family violence, she would not concede that it was her daughter that had broken a window in 2014 just that “I knew there was an incident and a window broken.” Whilst asserting that the father occasioned family violence upon the mother she was unable to explain why there was no evidence as to any incidences of family violence between the mother and the father in her affidavit.
The maternal grandmother gave self-serving responses and was non-responsive on occasions to the questions asked of her. She could not concede that there is any relationship between the children and the father. She could not concede that the father took care of the children in any meaningful way. She asserted that even if there was such a relationship, it would not have been meaningful in any event as the father was heavily drug addicted.
I approach the maternal grandmother’s evidence with some caution.
The Father
The father lives in a two bedroom rented home at Town R, on the Region S of Sydney with his partner Ms T. This is close to Ms T’s family who provide support and assistance. His mother lives in Sydney. It does not appear to be in dispute that this is an approximate 2 ½ hour drive to the maternal grandparents’ home. The father suffered a seizure in April 2022 and as a result is currently unable to drive and relies upon his partner for transport.
The father is employed casually as a tradesman and is about to commence employment as a carer.
The father’s oral evidence was that approximately one to two weeks prior to the final hearing he had completed a parenting course to assist him in dealing with W’s moods and is enrolled in the “Seeing Red” program. I accept that this is so.

The father gave clear and unequivocal oral evidence for the most part. He was clear and consistent in his evidence that he has had issues in the past with drug and alcohol abuse. His frustration at the circumstances of the limited time the children have had with him subsequent to the mother’s passing was palpable.
The father made many concessions during the course of his cross examination including that he has called the maternal grandmother a “fucking cunt.” He verbalised on several occasions his regret at his past behaviours including his interactions with the maternal grandmother.
“Yeah I got angry and said something I shouldn’t have. That was over a year ago. I’m trying to improve myself…I’m trying. I’m doing these courses. You can pick random drug testing. I just want to see my kids. I don’t want to have this type of relationship with [Ms Kelsey]. I can admit I’ve done wrong.”
The father made concessions and gave evidence even though it clearly would not have assisted his case. I found him for the most part to be a witness of truth. There are some aspects of his evidence with respect to his codeine use however that trouble me which is addressed later in these reasons.
Ms T
The father lives with his 32 year old partner Ms T. She has been employed as a carer since 2017.
Ms T has not met the children save for a brief “hello” during a Facetime call between the children and the father in January 2022 as she and the father have agreed that it is better that she waits to meet them in person.[11] She has not met the maternal grandparents.
[11] Affidavit of Ms T filed 10 March 2022, paragraph 3 (“Affidavit of Ms T”).
Ms T deposes that she and the father are in a caring and loving relationship and it is not characterised by domestic violence.[12] She holds a full drivers licence and can assist if required in picking up the children to spend time with the father.[13]
[12] Ibid, paragraph 19.
[13] Ibid, paragraph 20.
Ms T was briefly cross examined. She gave her answers in a clear and responsive manner. She was not challenged in her evidence in any way and it is accepted.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the Court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the children as the paramount consideration. This is confirmed in section 65DAA.
The children’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act.
The objects of the Act as set out in section 60B is to ensure that the best interests of children are met by:-
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) are:
·the benefit to the children of having a meaningful relationship with the father; and
·the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time the children are spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518. This is an important consideration in this case given the length of time it has been since the children spent time face-to-face time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119] adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Thus, I am not to assume that there is a benefit to the children in having a meaningful relationship with the father but rather I am required to ascertain whether there is a positive benefit to the children in the circumstances of such a relationship.
The proposal of the maternal grandparents is the children spend what is in effect “recognition” only time with the father.
Risk of Harm
The maternal grandparents submit that the risk issues arising from the father’s mental health issues, conceded drug use, evidence as to family violence and alleged neglect of the children whilst in his care poses such a risk to these vulnerable children that orders allowing only supervised recognition time should be made.
The father submits that the court could not be satisfied on the evidence that the father poses an unacceptable risk to the children and that any risk the court may find is sufficiently ameliorated by the orders sought by the father for time on a graduated basis leading to overnight time with no block periods of time sought and for orders as to drug testing for the next 12 months.
Family Violence
The maternal grandparents reported to the Court Child Expert that there is no family violence in their relationship. The father does not raise any allegations in this regard. I accept and find that there is no foreseeable risk as to the children being exposed to family violence in the home of the maternal grandparents.
The maternal grandparents allege that the father occasioned family violence upon the mother. The maternal grandmother’s affidavit does not contain any evidence to support this assertion.
To his credit the father concedes in his affidavit that during the course of the relationship between himself and the mother they both perpetrated family violence upon one another. He asserts however that these were isolated incidents rather than a consistent pattern. The father deposes that on reflection the mental health issues both he and the mother suffered was a cause of most of their arguments and it led to a toxic relationship.[14] In or around early 2012 the mother and father would verbally abuse each other and verbal arguments between them would escalate when he was not engaged in paid employment. He deposes that unfortunately sometimes these arguments occurred in front of the children and they would become upset. Such incidents included:-
·In late 2012 the mother and father were at a party and the father became jealous as the mother was talking to other males and he went home. When the mother arrived home an hour later she did not have a key and began banging on the door and screaming at the father to let her in. The father went to the door and told the mother to go away as she was displaying aggressive behaviour and he did not want to fight with her. The mother became more aggressive and punched a hole through a glass panel next to the front door. The father reached over to the mother’s hand to push it back through the hole and cut his hand at this time. The mother also cut her hand and was taken to hospital. The police attended the home the next morning and spoke to the parties. Police records produced under subpoena show that this incident occurred in January 2014. The mother’s recorded reporting to the police verify the father’s version of events as deposed in his affidavit. No children were present at the home. The police are reported as stating that they held no fears for the safety of either party as no prior history existed between the parties at the time of the incident and there was no evidence of an assault on either party. I accept and find that the mother perpetrated an act of family violence on this date.
·In or around late 2012 the parties were arguing at a friend’s home. There was a miscommunication as to whether the father was going to drive the mother home and as he was getting into his car to leave the mother shoved him causing him to stumble back. The father deposes he instantly felt pain in his side and was struggling to breathe. The father deposes he went to the doctors in Suburb U a few days later and an x-ray showed that he had a fractured rib. I accept this evidence and find that on this occasion the mother perpetrated an act of family violence upon the father.
·In approximately 2013 the parties were having an argument whereupon the father became angry and took out his anger by punching a wall. The father deposes the children were not present at this time. I accept this evidence and so find that the father at this time perpetrated an act of family violence.
·Police records produced under subpoena record the police attending the home on 26 March 2017 and speaking to the mother. The mother is reported as advising the police that the mother and father had had a verbal argument as she “is sick of being the breadwinner in the house.” The mother is recorded as advising police that this was a verbal argument only, there were no threats or violence and when the father left and slammed the front door a part of the front window cracked. The mother advised the police that she was not scared, she had no fears and was not intimidated by the father, she is simply sick of him “free loading” off her. It is recorded that the mother requested an apprehended violence order but the police did not believe that there were enough grounds to apply for one at that time. The mother is recorded as being concerned that “he will stop caring for his children on the weekend as she has to work”.[15] I am not satisfied based on the evidence that I can safely make a finding that the father occasioned family violence on this date.
[14] Affidavit of Mr Bell filed 25 February 2022, paragraph 10.
[15] Applicant Tender Bundle, Page 3 (“Exhibit J1”).
I accept the father’s evidence and find that the parties engaged in verbal arguments and the destruction of property during the course of their relationship. I further accept the father’s evidence and so find that each of the mother and father perpetrated these acts against the other. I am satisfied that, on balance, it is probable that the toxic nature of the relationship arose from the difficulties each of the mother and father were experiencing at that time.
The father readily conceded in cross examination that he has had problems with his anger in the past. The maternal grandmother minimised the role the mother played in the above incidents:
Q:       You knew she had broken a window?
A:       I knew there was an incident and a window broken.
Q:Having read that Police report – you agree that the Police were not convinced that the mother was in danger?”
Q:       I agree no action was taken by the Police.
Ms T was clear and concise in her evidence. She was not cross examined or asked any questions as to any family violence in the relationship between herself and the father. I accept and find that the relationship between the father and his partner Ms T is not characterised by family violence.
Allegations made by Z
During the interviews of the children for the purposes of the CIC on 5 November 2020 Z is reported as telling the Court Child Expert that the father:
·sometimes “ would not feed us”;
·sometimes would smack or hit him and sometimes hit him on the back with “something you mix with.” Z is reported as stating that the father would do this when the children told him that they wanted to go home to their mother; and
·was “lazy and didn’t really get up; and he didn’t have a backyard for us to play in.”[16]
[16] Child Inclusive Conference Memorandum dated 20 November 2020, paragraph 58-61 (“CIC”).
The Court Child Expert accepted Z’s assertions.
The father vehemently and robustly denied these allegations during the course of cross examination. The father’s evidence was that he would not get angry if the children wanted to go home to their mother; he would get upset.
It is only the first two statements that require consideration as to risk. I cannot safely make a positive finding as to either allegation based solely on what Z has said to the Court Child Expert. There is no context to the allegation made by Z as to sometimes not being fed by the father. I can only place little weight on this statement in those circumstances. Having observed the father in the witness box I cannot comfortably make a finding that he has hit the children with any form of utensil.
Mental Health Issues
At the age of 19 years the father was diagnosed with bipolar, schizophrenia, depression and anxiety. In 2017 he was escorted to Suburb U Hospital by Police where he stayed overnight after threatening self- harm. He has been consistently medicated for bipolar and schizophrenia since he was 19 years of age and is currently taking two 300 mg tablets of Seroquel each night and 300 mg of Effexor daily. The father deposes that he is actively engaged with his psychiatrist Dr V, who he has been seeing approximately once per month since October 2021. In evidence is correspondence from Dr V to Dr AB dated from 2021 and at various times during 2022 detailing the father’s management plans. Ms T’s uncontested evidence was that the father attends upon his psychiatrist once a month and she observed him to take medication daily.
The father is candid in his evidence that he struggled with his mental health after the mother passed away and the symptoms of his depression increased significantly.
The Court Child Expert’s oral evidence was that she could not remain confident that the father would continue in his treatment for mental health issues as the father did not provide clear detail about his treatment and it was not clear that there was any follow up or treatment. I am satisfied on the evidence that this is not the case. I am satisfied and find that the father is undertaking his treatment as required. There is no evidence that he has had any incident relating to his mental health since 2017.
Drug and Alcohol Use
The maternal grandmother deposes that:-
·The mother told her that she and the father separated as a result of the father’s ongoing mental health problems and addiction to prescription medication and codeine. She asserts she has a recording sent by the father to the mother on 13 July 2020 showing a video recording of a bag of white pills in a line of white powder on a glass cooktop with the message from the father to the mother saying “thinking of you” and the mother’s response being: “Lucky for you… Some of us had to buy food shopping.” Having regard to the father’s concessions as detailed below I am satisfied that this incident occurred.
·That there have been a number of occasions where the father has appeared to be under the influence of drugs or alcohol constantly repeating questions of the children, slurring his words and laughing hysterically when talking with the children pursuant to the current interim parenting orders. This was not challenged in cross examination. I accept that on balance there have been times when the father has been under the influence of some substance that has affected his ability to communicate effectively with the children subsequent to the interim orders being made.
The father himself deposes that during his relationship with the mother they both used illicit and prescription drugs; predominately codeine. They were both addicted to codeine at the commencement of their relationship which at that time was able to be purchased over the counter in pharmacies without a prescription. The father was taking approximately 20 tables of codeine per day of 8mg - 10mg. The mother was taking 20 codeine tablets per day of 15mg and it appears that the father then also began taking the higher strength tablets. The father deposes that during the height of his addiction he was taking 80 codeine tablets per day. The father asserts that when he and the mother abused codeine they were still able to function normally and parent the children; the codeine simply made them both calmer.[17]
[17] Father’s affidavit, paragraph 44 and 45 (“Father’s affidavit”).
The father further deposes that during his relationship with the mother they both used illicit drugs including cocaine and methylenedioxymethamphetamine (MDMA) recreationally a “couple of times a year.”[18] The father deposes that the children were always being cared for by grandparents when they used these substances and thus they were not exposed to this form of their parents’ drug use.
[18] Father’s affidavit, paragraph 46.
In or around December 2015 upon losing his employment as an apprentice tradesman the father went from rarely drinking to drinking approximately two bottles of wine a day.
The father asserts that in approximately 2018 “I ceased using Codeine because I was unable to get it without a prescription.”[19]
[19] Father’s affidavit, paragraph 47.
The father deposes that from 2019 he started using cocaine approximately twice per week. He was drinking between two-four cans of bourbon two or three times per week.[20]
[20] Father’s affidavit, paragraph 48.
When the mother passed away in 2020 the father began using approximately one-two grams of cocaine per day and was drinking approximately 12 bourbon and coke cans each day to the point where he passed/blacked out. It was the Court Child Expert’s opinion that this behaviour is concerning as it is not a realistic reaction to the mother’s passing when he was not in a relationship with the mother at the time.
The father asserts that from December 2020 he stopped drinking and using cocaine “as much” as he needed to be there for his children.
The father alleges he ceased his cocaine use all together as and from March 2021 and that he now only drinks approximately 4 beers each week. He deposes that his partner Ms T has assisted and supported him throughout this process.[21]
[21] Father’s affidavit, paragraph 48.
The father was adamant during the course of cross examination that he does not have a drug problem.
Despite the father’s assertion that he ceased using codeine in approximately 2018, material produced under subpoena records that from 1 June 2021 to 31 August 2021 the following quantities of tablets/capsules were supplied to the father:-
·868 Pregabilin 300 mg capsules (4 prescribers)
·686 Pregabilin 150 mg capsules (5 prescribers)
·140 oxycodone hydrochloride 5 mg tablets (3 prescribers)
·165 diazepam 5 mg tablets; (3 prescribers)
·180 Quetiapine 300 mg tablets; (2 prescribers)
·56 Citalopram 20 mg tablets; (2 prescribers)
·20 Paracetamol plus Codeine – Paracetamol 500 mg plus Codeine Phosphate Hemihyrdrate 30 mg tablets; (1 prescriber)
·20 tramadol hydrochloride 50 mg capsules; (1 prescriber) and
·10 oxycodone hydrochloride 5 mg tablets (1 prescriber).

The father was not legally represented at the interim hearing on 24 November 2020. He deposes that he was very emotional as he was not going to be spending any in person time with the children and did not realise that there were orders made for him to attend hair follicle testing until advised by his current solicitors. His solicitors then applied for legal aid funding for the testing which was granted in December 2021. He deposes that he was advised by AC Pathology in January 2022 that his hair was too short and they did not accept body hair. He has always cut his hair to less than 1cm of growth. He deposed in February 2022 that “I have ceased cutting my hair and I am actively trying to grow it out.” His solicitors advised the solicitors for the maternal grandparents on 11 February 2022 that he was willing to undergo random urinalysis testing once per month. There is no evidence as to whether a response was received to such correspondence.
The father underwent hair drug analysis testing on 29 July 2022. The analysis from AC Laboratories dated 2 August 2022 reports the father testing positive for opiates. He tested negative for all other drugs including cocaine. The opiates tested for include morphine and codeine. It appears that the opiate in the father’s system was 403 PG/MG of codeine which was not consistent with the medications the father stated he was taking.[22]
[22] Affidavit of Mr Bell filed 19 August 2022, Annexure B.
The father swore a further affidavit in response to these drug test results. The father deposes that subsequent to moving to the Region S he has commenced seeing Dr AD who is the director of rehabilitation services in the Region AE district regarding his pain management. Dr AD has reviewed his medication and is working with him to address his chronic pain issues including attempting to wean him off the strong opioid medications he is currently prescribed and finding other ways for the father to manage his chronic pain. A progress note from Dr AD to Dr AB of 17 June 2022 states the father is currently prescribed medications which are equivalent to 30 MG of oral morphine.[23]
[23] Ibid, paragraph 4.
The father deposes that at the time of taking the hair drug analysis he was prescribed Panadeine Forte for a shoulder injury suffered following a seizure in May 2022. He deposes that he forgot to advise AC Laboratories that he had been prescribed Panadeine Forte which contains codeine in the three month period prior to him undertaking the drug test.
Ms T deposes that when she first met the father she was aware that he would drink alcohol to excess and would occasionally use cocaine. She deposes and I accept that as she does not agree with the use of illicit substances he would refrain from using cocaine in front of her but would regularly drink alcohol in her presence. Ms T deposes and I accept that she observed that by the end of June 2022 the father completely stopped using cocaine. I am satisfied and accept that the father no longer uses cocaine.
I am satisfied and find that it is probable that the father continued to take codeine to excess subsequent to 2018 and at least until August 2021. I cannot positively make a finding that the father is currently abusing prescription codeine on the evidence.
Ms T deposes that subsequent to the father undertaking ‘dry July’ in July 2021 his alcohol use has significantly reduced and that he now drinks approximately four alcoholic drinks a week in total, but that this does not occur every week and he sometimes goes weeks without alcohol. I accept this evidence.
I accept having listened to the father’s evidence that he has an understanding of the negative effects on his parenting that drug use can have and the potential impact on the children if they were exposed to any drug taking: “They shouldn’t be around it, they don’t need to see it - anything could happen.”
THE ADDITIONAL CONSIDERATIONS
Turning now to the additional considerations as set out in s 60CC (3) as are relevant in this matter to determine what is in the children’s best interests.
It is clear that the children have a close and loving relationship with the maternal grandparents. Both the children have clearly expressed a view to remain living with the maternal grandparents. This is not in contest.
Z is recorded as making complaints to the Court Child Expert as to the father’s care as recorded above. It is recorded and I accept that he told the Court Child Expert that the video calls with the father are “okay”; he likes that they can both see and hear each other.[24] The Child Impact Report records that in November 2020 W told the Court Child Expert that he did not want to stay the whole weekend with the father. When he visits the father he “has worries” and really wants his sister X to come with him to the father’s home.[25] This was not put in issue.
[24] Family Report, paragraph 83.
[25] CIC, paragraph 65-68.
It is also clear that both the children have suffered extensive trauma, grief and loss. Both children rely upon their elder sister X for support and assistance in settling them.
The maternal grandmother could not concede that there is a meaningful relationship between the children and the father:
Q:       The father is someone that has known them all their lives?
A:       To an extent.
Q:       He has a relationship with them?
A:       To some extent.
Q:       You are struggling to say that the children have a relationship with the father?
A:       Depends on what you mean by relationship.
The father deposes that during the course of the relationship between himself and the mother they shared the responsibilities for caring for X, Z and W. He deposes that when he was not working it was him that met the children’s day-to-day needs. When he was working he could not assist as much with the day time routines but would bathe the children after dinner and help put them to bed. He would assist in caring for the children on the weekends and enjoyed cooking and would often encourage the children to cook with him. When the mother and father were living at Town K the father was not working and he therefore took on the vast majority of domestic tasks and cared for the children whilst the mother was at work. I am satisfied and find that the father played a significant role in the care of the children whilst he and the mother were in a relationship.
The father deposes that subsequent to the separation between himself and the mother in April 2016 he saw the children almost every week until October 2016. The mother and father had an informal arrangement that the children spent time with him each alternative weekend from Saturday to Sunday however more often than not the father spent every weekend with them. The father also spent time with the children during the week when the mother asked him to care for the children but such days were irregular and based on the mother’s schedule. The father deposes that he wanted to spend more time with the children during the week however the mother and father lived approximately one hour apart which affected his midweek time. The father deposes that when he saw the children midweek, he would pick them up from the mother’s home and take them to Suburb J with him to stay and would then drop them to day care the following morning.[26] I accept the father’s evidence in this regard.
[26] Father’s affidavit, paragraph 19.
The father deposes that upon the final separation between him and the mother in March 2017 the time the children spent with him varied. At times they saw him almost weekly and then there were times in which he did not see the children. The father deposes and I accept that the time the children spent with him varied dependent upon where the mother and father were living and the nature of the relationship between himself and the mother at the time. I accept and find that the father spent time with the children at least every month, if not every weekend between April 2017 and April 2018.
Between April 2018 and September 2018 the father did not spend time with the children. He says this is because he and the mother were not getting along.[27]
[27] Ibid, paragraph 24.
The children did not begin spending time again with the father in any meaningful way until January 2019 and from this time until November 2019 the children saw him almost once a fortnight, if not more often. Further, the father would often go to Z’s sports games on Saturday to watch and play and spend time with the children for a few hours.
Between January 2020 and August 2020 the children spent time with the father every second or third weekend.
Subsequent to the mother’s passing the father deposes that he asked the maternal grandmother to see the children almost daily. The maternal grandmother allowed him to spend time with the children at a park near Suburb H for approximately four hours on 29 August 2020. There is no complaint made by the maternal grandparents arising from this time spent.
The children spent time with the father by arrangement with the maternal grandparents for two hours at McDonald’s for Z’s birthday unsupervised in 2020. There is no complaint made by the maternal grandparents as to this time spent.
Subsequent to the interim orders being made on 24 November 2020 the children have spent time with the father via FaceTime twice a week on Wednesday and Sunday. There is conflicting evidence as to these calls.
The maternal grandmother alleges that the calls have been difficult for the boys as: -
·The calls from the father have been inconsistent but usually occur at least once a week.
·From April 2021 to June 2021 the father missed a lot of calls with the children.
·The calls usually only last a few minutes. The maternal grandparents reported to the Court Child Expert that it can be frustrating, in terms of unnecessary interruptions to “family time” when the father does not call or ends the video call after one minute.[28] The maternal grandmother provided as an example on one occasion the children were playing in a neighbour’s pool but had to leave as it was time for the call and it only lasted a minute as the father told the boys “he had a sore tooth and had to go.”[29]
·W is disinterested in talking with the father even with constant encouragement. Z finds it stressful trying to convince W to do so. On one occasion when W would not speak with the father, the father sat with Z in silence before abruptly ending the call.
·There have been a number of occasions where the father has appeared to be under the influence of drugs or alcohol and on one such occasion Z became very anxious afterwards, refusing dinner and going to bed with a headache.
·Z at times behaves badly after speaking with the father.
·On the few occasions the maternal grandmother has had to intervene and communicate with the father, he has then been aggressive and used foul language. The maternal grandmother alleges and the father concedes that during one call he called her a “fucking cunt.” The father’s evidence was that the maternal grandmother was abusing him and “I got angry and said something I shouldn’t have. That was over a year ago. I am trying to improve myself.” It does not appear to be in dispute that the father apologised to the children about it the next phone call.
·During a call on 23 January 2022 the maternal grandmother heard and the father concedes that he spoke to Z about him and his partner losing their baby.
·The father swears whilst talking with the children.
·The maternal grandmother stated during the course of cross examination that she does not feel there is much meaning to the calls – “The boys aren’t getting a relationship from them.”
[28] Family Report, paragraph 45.
[29] Ibid.
The maternal grandmother’s oral evidence is that she is present for most of these calls and is listening in. She could not accept that this would make the boys feels uncomfortable in any way. The maternal grandmother accepts that Z told the Family Report writer that these calls are good as he can physically see the father. The maternal grandmother was unable to think of a way to make the phone calls less “disruptive”. She stated that it is very hard with four children in the house who all attend different activities to arrange a time when the activity does not have to be stopped which causes the children to be annoyed. It was the maternal grandmother’s evidence that they talk to W before each call and give him the option of whether he would like to talk with the father.
The father deposes that:
·He has called the boys twice a week as per the court orders.
·At the beginning the calls were a positive experience; he and the children spoke for the full 30 minutes and the boys were very happy and talkative.
·Within a few weeks however whenever he asked them a question they would look towards someone else not in the camera frame and respond with: “I don’t know” or “nothing.”[30]
·He actively tries to keep the conversation continuing with the boys by asking them questions but the children often reply with one or two word answers.[31]
·There have been times that he has attempted to call the boys and the calls have gone unanswered. In evidence are screen shots of his attempts to call.[32]
·As the calls have progressed the boys are engaging in conversation less and less to the point where they are now approximately five or 10 minutes in length.
·The father has also observed during these calls the television on in the background. W is usually watching television and does not want to talk. Since November 2021 he has noticed that the children are often eating dinner at 5:30 pm when he calls and are therefore usually unengaged in the conversation.[33]
·There have been further occasions where the father asserts that the calls have been cut short as the boys have had to attend to something else or have been out. A letter to the maternal grandparents’ legal representatives of 11 February 2022 noting the difficulties the father says he has experienced and asking if there was a more convenient time to call the children went unanswered.[34]
[30] Father’s affidavit, paragraph 38.
[31] Ibid, paragraph 38 and 39.
[32] Ibid, paragraph 40.
[33] Father’s affidavit, paragraph 41.
[34] Ibid, paragraph 42.
The father told the Court Child Expert that has always mucked around with the boys and called them “boof head” and “goose” but that the maternal grandmother saw this as calling them derogatory names. He denies that he uses obscene language around or to the children.
Ms T deposes that she has observed the father and maternal grandmother have disagreements during his calls with the children; such disagreements generally being the maternal grandmother accusing the father of using inappropriate language. She deposes that the father calls the children “boof head” which is a nickname the father was called by the paternal grandfather growing up and is a nickname he has carried on with the children.
The Court Child Expert agreed in oral evidence that the presence of the maternal grandparents during these calls could affect the way the children present during the calls. She further agreed that it was possible that the children may feel that the stability and love of their current home is dependent on a rejection of their father and that it would not be surprising in those circumstances that the children would want to protect their relationship with the grandparents. It could be that W is of an age where he is more able to express how he truly feels, which is that he does not want to speak to his father at particular times whereas Z is more developed and anxious as to everyone’s feelings. The Court Child Expert agreed that W’s reluctance could simply be that he does not like using the video call.
I accept and find that the father has tried to call at the allotted times. I do not accept on balance that the father would have called and then hung up. There was no reason proffered by the maternal grandmother as to why the father would engage in this course of action. The father obviously wants to see his children. I do not accept that he would not take the opportunity to do so when he could. It appears that the maternal grandparents have not been as proactive in encouraging this time between the children and the father as they could have been as they feel that it is an unnecessary intrusion into their “family time.” The maternal grandparents not availing themselves of the opportunity to have such calls occur at a more convenient time as offered by the father is unfortunate and not in the children’s best interests.
I am satisfied that the nature of the interactions between the children and the father would have been stifled by the maternal grandmother’s presence during such calls. I accept that the father lost his temper and used foul language to the maternal grandmother on one occasion for which he has expressed regret. I am not satisfied that the father has used foul language to the children: this allegation appears to arise from different parenting styles of the maternal grandmother as opposed to the father.
I am satisfied and find that the children had an established relationship with the father until the passing of their mother. I am satisfied that the children’s relationship with the father has been fractured subsequent to the death of the mother. They have not seen the father in person now since October 2020. The father concedes that the nature of the relationship is such that the recommencement of time between the children and the father will need to occur on a graduated basis.
Criticism was made of the paternal family for not contacting the maternal family. I accept the father’s evidence that he asked his mother to drop off Christmas presents to the maternal grandparents home. I accept he subsequently received a message from the maternal grandmother telling him to not “send anyone to her home again.” I accept the father’s evidence that: “I didn’t want to make things worse so I told them to wait until the court has finished.” There was no evidence as to why the maternal grandparents did not want the paternal grandmother attending their home to drop off Christmas presents for the children.
The father pays $24 per week in child support to the maternal grandparents collected by the Child Support Agency.
The Court Child Expert was clear in her evidence that the children need stability and surety in their arrangements.[35]To his credit the father has realised that the children’s best interests are met by them continuing the care arrangements they have had since their mother’s passing, which allows them to continue living with their siblings and the maternal grandparents. This is supported by the Court Child Expert.
[35] Family Report, paragraph 102.
Both of the competing proposals will see a change in the children’s circumstances as they are currently not spending any face to face time with the father.
There is a 2 ½ - 3 hour drive between the father’s and maternal grandparents home. The father proposes that the first stages of graduated time between him and the children be in the Sydney region so that the children are not required to undertake extensive travel. The father is unable to drive and relies on the assistance of Ms T to transport him.
The children spending alternate weekend time with the father will involve significant travel for them on those occasions. The father proposes to collect and return the children to and from the maternal grandparent’s home in circumstances where the maternal grandparents may not be able to undertake this as they have the other children in their care.[36]
[36] Father’s affidavit, paragraph 55.
The maternal grandparents seek that the children’s time with the father be supervised by a private supervisory agency on a continuing basis and that the father be responsible for the costs of such supervision. There is no evidence as to the costs of such a service. There is no evidence as to the income and fixed expenses of each of the parties. The maternal grandfather works on a full time basis. The maternal grandmother works on a part time basis. The father currently works on a part time basis.

It was submitted during the course of the hearing that supervision could occur at a contact centre and that the Suburb D Children’s Contact Centre would be the most convenient for the children and maternal grandparents. There is no evidence that the Contact Centre will provide supervision until each of the children reach adulthood.
In light of the lack of evidence in this regard, discussions between myself and Counsel during the course of the hearing resulted in the father submitting that he would consent to private supervision occurring until a contact centre became available, but the cost involved would limit this to occurring only once a month.
The father deposes that he understands the children have experienced significant trauma in their lives and may be hesitant to spend time with him having regard to the time that has elapsed since the children last saw him in person. The father to his credit seeks a graduating regime of time commencing with supervised time to allow the children to feel comfortable in establishing a relationship with him and then slowly progressing to overnight time and alternative weekends.[37] The father has undertaken a parenting course and has enrolled in the “Seeing Red” course. I am satisfied that the father does have insight into the children’s needs but understandably struggles with his own desire to maintain a relationship with his children.
[37] Father’s affidavit, paragraph 54.
It is possible that if the orders sought by the maternal grandparents are made by the court the father will in the future seek to move to unsupervised time.
The court concurs with the evidence and submissions of the father that the maternal grandparents are to be commended for the manner in which they have taken on the responsibility of caring for all four of the subject children in these proceedings in the most trying and difficult of circumstances.
I accept that the overriding concern for the maternal grandmother is to keep the children safe, as it is for the court. I find however that this has been adopted in a somewhat overzealous manner by the maternal grandparents. I find that they have not proactively encouraged the children’s relationship with the father. I am concerned that the maternal grandparents will not comply with orders this court makes in the best interests of the children: it was the maternal grandmother’s evidence that they are proposing time every two months in line with the Court Child Expert’s recommendations. When asked to clarify that they are seeking supervised time six occasions per year, the maternal grandmother’s response was:
A:       If the children are happy to do that.
Q:       And that will continue until they are 18 won’t it?
A:       For as long as, as long as the children are happy for that to happen, yes.
Whilst the maternal grandmother stated that she would be open to increasing the amount time the father spends with the children if the children requested it and that she would comply with court orders, I am not confident that the maternal grandmother would be supportive of the children increasing the time they spent with the father having regard to her negative opinion of him.
PARENTAL RESPONSIBILITY
The rebuttable presumption as contained within s61DA (1) of the Act does not apply in this matter as the section refers to parents, not grandparents. Thus pursuant to section 61C the father at law has parental responsibility for the children subject to orders of this court. The court however retains the power to make such orders as to parental responsibility as are in the children’s best interests.
The maternal grandparents seek that they have equal parental responsibility as between them for the children and that the father have no parental responsibility. It is uncontested that the children will continue living with the maternal grandparents. It is necessary on a practical basis that they have parental responsibility for making decisions concerning the children long term care, welfare and development. Such an order is thus in their best interests. The question that remains for the court to decide is whether the father will share this parental responsibility.
The only evidence as to the relationship between the maternal grandmother and the father contained within the maternal grandmother’s affidavit is the sentence: “There is no communication between Mr Kelsey and I and Mr Bell that does not include verbal abuse and aggression from Mr Bell.”[38]
[38] Maternal grandmother’s affidavit, paragraph 57.
The maternal grandparents reported to the Court Child Expert that whenever the father has interacted with the maternal grandmother he has been aggressive towards her and that whilst she does not feel concern about her safety, she would do so if she has to communicate with the father in person. She said she currently experiences a great deal of anxiety when she has to communicate with the father and when the father is talking to the children although she does not usually communicate with the father during these times.[39] The maternal grandmother told the Court Child Expert that the father has been aggressive towards her in every interaction she has had with him since the children came into her care – an example being in February 2021 when the father was asking Z “why did you not answer the phone” she felt she had to interject and the father started swearing and said: “Don’t start this shit.”[40] As a result of the father’s alleged aggression the maternal grandparents have been concerned about the possibility of the father damaging their property whilst they are on holiday with the children and have installed security cameras on the property.[41] I find this to be an unreasonable and disproportionate response to the father’s alleged behaviour.
[39] Family Report, paragraph 33.
[40] Ibid, paragraph 34.
[41] Family Report, paragraph 35.
In her oral evidence the maternal grandmother affirmed her allegation that the father has been abusive in every conversation she has had with him. Her evidence was that the father has further sent her abusive text messages. She asserted that she avoids contact with the father as much as possible. The maternal grandmother conceded in her oral evidence that there is no written evidence as to the abusive conversations she alleges save for the one occasion. She further conceded that there is no evidence as to any abusive text messages between herself and the father. There is no evidence to support a finding that this has occurred save for the one occasion the father himself concedes he swore at the maternal grandmother which is dealt with above in these reasons.
The father seeks shared parental responsibility with the maternal grandparents. Whilst he concedes that he has sworn at the maternal grandmother on one occasion, he deposes that the communication between the parties has improved and they have been able to communicate via text message to change the telephone time between himself and the children when it does not suit the children. The father deposes that he would like to be involved in long-term decision-making of the children and thinks it is important for the children to know that he wants to be involved in their lives and actively trying to participate.[42] It was submitted on his behalf that it is commonplace for separated parents to feel uncomfortable when speaking with each other as to parenting issues and there is no suggestion that the father has ever threatened the maternal grandmother. Any issues arising from the parties having to communicate with each other can be addressed via the parties using a parenting application.
[42] Father’s affidavit, paragraph 57.
The limited evidence before the court to support the maternal grandparent’s position is solely from the maternal grandmother. Whilst I am satisfied that the maternal grandmother avoids talking with the father as it makes her uncomfortable, I am not satisfied that any anxiety caused is at such a level as to impede her ability to care for the children. In any event, there is no evidence from the paternal grandfather. There is no evidence as to why, if it was necessary, the paternal grandfather could not communicate with the father.
I am satisfied that it is in the best interests of the children that their father and carers share responsibility for making decisions as to their long term care, welfare and development as it is in the children’s best interests that the father be permitted to continue to play a significant role in the children’s lives. I am satisfied that any concerns or feelings of the paternal grandmother can be sufficiently addressed by orders being made as to the method and forms of communication between the parties.
I am not required to consider the provisions of section 65DAA in this matter as the order for equal shared parental responsibility is not made in favour of the children’s parents. In any event, it would be impracticable for the children to have spent equal time or substantial and significant time with each of the parties having regard to the significant distance between their homes. The parties themselves do not seek equal or substantial and significant time with each of them, nor is it appropriate having regard to the risk issues in this matter.
DISCUSSION
I must now undertake an assessment of the potential risk of harm to the children in the father’s care. This assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97.
If the Court identifies that there is an unacceptable risk, it is then necessary to assess whether that risk is able to be sufficiently ameliorated or managed with safeguards: Blinko & Blinko [2015] FamCAFC 146. It is not however for the court to find a solution which will eliminate any chance of serious harm. It is to balance the harm that will follow if the risk is not minimised or removed against a healthy relationship between a parent and a child not being permitted to prosper: Napier & Hepburn (2006) FLC 93-303.
The Children’s Time with the Father
The maternal grandparents submit that the children are at an unacceptable risk in the father’s care such that any time they spend with the father must be supervised. The maternal grandparents submitted that:-
·The risks to the children in the father’s care arose prior to the mother’s passing;
·There is insufficient evidence to support there being unsupervised time between the father and the children;
·Whilst there does not seem to be any evidence that there is any family violence currently occurring in the father’s household, the father’s current relationship is not one that is long standing and the children have not met the father’s new partner. The father did show some insight into his past life during the course of the hearing but he was quick to attribute blame to the mother also. The Court Child Expert accepted the children’s accounts of their care by the father;
·The children are particularly vulnerable. The maternal grandmother’s concerns as the uncontested resident carer should be taken seriously;
·Whilst the father may have been more stable with respect to his mental health issues in the last 12 months, the question that must be asked is “What if something goes wrong again?”
·The father’s drug use causes the maternal grandmother serious concerns, in circumstances where he asserts he ceased taking codeine in 2018 but tested positive for it in August 2022. The father attributes the positive test to his prescription for Panadeine Forte; and
·Whilst the authorities state that indefinite supervision can be problematic, the issue must still be determined on a case by case basis. The children do need a sense of identity and the presence of the father in their lives, but this needs to be undertaken in a safe manner.
The father submitted that the question for the court to determine is whether the father poses such an unacceptable risk to the children that their safety requires their time with him to be supervised at all times. The evidence with respect to family violence within the home of the mother and the father is limited and does not paint a picture of high levels of violence. Even though the mother and father separated the children spent considerable time with the father and he has demonstrated his ability to care for the children. Any risk to the children being subjected to neglect moving forward is mitigated by the short amount of time the children will spend with the father and the drug testing he proposes for a period of 12 months together with his proposal that he will direct his health care providers to provide regular correspondence to the maternal grandparents that he is compliant with any treatment regime his medical providers advise. Thus, the father submits, his position is protective and focuses on the needs of the children. The orders he seeks mitigates any potential risks to the children from spending time with him as sought. Recognition time as sought by the maternal grandparents is not likely to be conducive of a meaningful relationship between the children and the father, especially in circumstances where it is clear that the maternal grandmother has very negative views of the father.
The Court Child Expert opines that as a result of the “unknowns” with respect to the father’s drug and alcohol use and mental health, it is recommended that any time the children spend with the father be supervised until the children are of an age where they can communicate to adults if they are not feeling comfortable. She was of the opinion 14 years would be an ideal age, which would mean supervision would occur until Z is 17 years of age and W 14 years of age, as Z should not be responsible for caring for his brother. The Court Child Expert was of the opinion that this course fulfilled her recommendation that the children have a sense of identity.
I have made findings with respect to the “unknowns” and will now assess the risk arising from such findings.
I am satisfied that the children are at risk of being exposed to the perpetration of family violence in the father’s care in the future having regard to his own concessions. I accept and find from the father’s evidence that he has reflected upon the nature of the relationship between himself and the mother and the causes of the toxic nature of it. The father has expressed regret that the children were exposed to their fighting.[43] I am satisfied that the family violence present in the relationship of the mother and father was as a result of the actions of both parties. I am satisfied that at that time both parties were suffering from significant disadvantages. I am not satisfied that the father’s current relationship is one of family violence. I am therefore not satisfied that there is an unacceptable risk to the children in spending time in the father’s care arising from his perpetration of family violence. I am satisfied that there is a small risk but that this risk can be sufficiently ameliorated by there being a period of supervision of the father’s time with the children together with the children not spending block periods of time with the father as proposed by him.
[43] Father’s affidavit, paragraph 10.
The father is complying with his mental health plan and attending on a regular basis upon his treating medical practitioners. I am satisfied having regard to the evidence of the father and Ms T there is a low risk to the children in the father’ care arising from the father’s mental health issues. I am satisfied that any risk is sufficiently ameliorated by the father providing to the maternal grandparents regular information as to his compliance with the treatment plans devised by his medical practitioners until 2029 when W will be 13 years of age and Z 16 years in addition to the children’s time with the father being supervised for a period of time.
In circumstances where I cannot be satisfied that the father has hit the children, I am satisfied that the risk of physical harm to the children in the father’s care is low. It can be sufficiently ameliorated by an order restraining the father from physically disciplining the children.
I cannot accept on the evidence that there is any risk that the father will not feed the children.
I am satisfied on the evidence of the father and Ms T that alcohol misuse by the father is a small risk for the children. The father offers to undertake 12 months of urinalysis to mitigate such risk. In circumstances where the Court Child Expert was concerned as to whether 12 months of urinalysis testing is sufficient, I am satisfied that an appropriate mitigation of such risk is for testing to occur for the next two years. In light of the financial burden this will impose on the father, I am satisfied that such testing occurring no more than once every two months provides adequate protections for the children.
The Court Child Expert opines that if it is the case that the father has been drug affected during video calls it raises the risk that he could be drug affected in person; and that being in a drug affected state, whether being with the children in person, or communicating with them by video, is not providing the children with the stability and consistency that they need.[44] The Court Child Expert was further concerned in her oral evidence that there is no evidence that the father has received any medical intervention to assist him with detoxing, nor does he appear to have a maintenance plan in place. He has not been to a drug and alcohol counsellor. I accept the Court Child Expert’s opinion that the father’s risk of relapse is higher in those circumstances than those that have obtained the appropriate scaffolding support.
[44] Family Report, paragraph 100.
Thus whilst I have been unable to make a positive finding that the father is currently abusing prescription medication, I am satisfied that this possibility does pose a risk to the children’s safety. I am not satisfied in the absence of a positive finding that this risk is unacceptable.
The question then is what is required to sufficiently ameliorate this risk.
Both the maternal grandparents and the Court Child Expert seek that the children’s time with the father be supervised for an extensive period – the maternal grandparents until presumably they turn of age and the Court Child Expert for the next seven years. Further, such time is to be restricted to only once every two months – “recognition time” only with no face to face time occurring on any special days. A significant limitation to the Family Report is that the Court Child Expert did not have the benefit of seeing the children with the father.
Weighing up the competing considerations, I am not satisfied that the children spending recognition only time as proposed by the maternal grandparents is required for the children’s safety. Such a restrictive regime will not allow the children to develop a meaningful relationship with the father. Whilst there are some risks to the children due to the father’s past and potentially current drug use I am satisfied that such risks can be satisfactorily ameliorated by the making of injunctive orders, orders for drug testing and the children’s time with the father being supervised for a period of two years. I am not satisfied that the level of risk is such that it requires that the children’s time with the father be supervised for the next 7 years. Risk issues will be further ameliorated by the children’s time with the father increasing on a very graduated basis with overnight time not to occur until both the children are in high school with no block periods of time. By this time the children will have a developing self-protective capacity and there will have been a long period of time in which the father has proven his compliance with his treatment regimes.

In light of the known significant delays in the Contact Centres being able to facilitate supervision of time, I accept that it is in the children’s best interests that until a centre becomes available a private supervisory service be engaged. This will occur once a month at the father’s request having regard to the financial burden it will impose and the father’s current financial circumstances.
It is in the children’s best interests that in addition to regular time weekend time occurring with the father on an increasing graduated basis that they be afforded the opportunity to spend time with the father on or around special occasions. So that they can be with their siblings and maternal grandparents on these days, the children will spend time with the father during the Christmas and Easter period rather than on Christmas and Easter day.
The Children’s Surname
The Full Court has emphasised that an application to change a child’s surname is to be considered on the facts of each individual matter. The best interests of the child remain the paramount consideration however some relevant considerations as articulated by the Full Court in Chapman and Palmer (1978) FLC 90-510 might be:-
·The short and long term effects of any change of the child’s name;
·Any embarrassment likely to be experienced by the child if its name is different from that of the person with whom the child normally lives;
·Any confusion of identity which may arise from the child if his or her name is changed or is not changed;
·The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore at the time of the application; and
·The effect of frequency or random changes of name.
The maternal grandparents reported to the Court Child Expert that they are seeking to have all of the children’s surnames changed to Kelsey “as it seems important to the children.” All of the children will be at school in 2022 and it would mean that they would all be known as Kelsey at school. All of the children see themselves as Kelsey and “we call ourselves team Kelsey, it’s a way of letting all the children know they are wanted.”[45] In cross examination it was the maternal grandmother’s evidence that if the surname Bell was to remain for the children, she would prefer that the name Kelsey be added to their names without a hyphenation as a hyphenated surname would still mean that the children had different surnames to their siblings.
[45] Family Report, paragraph 48.
The father’s position originally was that he did not support the children changing their surnames to Kelsey. Whilst he understands the children’s wishes as articulated through the maternal grandmother, he is concerned that in removing the surname “Bell” they are further separating themselves from their only living parent.[46] Again to his credit the father clearly articulated his understanding and empathy for the children wanting to change their surname to Kelsey having regard to their current circumstances. He further stated:
As it has been mentioned, if they want to be [Kelsey], why can’t there be a way that we have mine in there as well? [Bell-Kelsey], [Kelsey-Bell], hyphen or no hyphen, however you want to do it.
[46] Ibid, paragraph 58.
The father is to be commended for this insight into the children’s needs. It is to be remembered that if the children had remained living with their mother they would have had different surnames. Removing their father’s name may make them feel that they are not wanted by the father. In the circumstances however it is in their best interests that they be able to feel fully part of their maternal grandparents’ household. This should not be at the expense of eradicating this form of identification with the father. In light of the father’s child focused concession, I am satisfied it is in the best interests of the children that the surname “Kelsey” be added to the end of their names. This will allow them to have both their mother’s and father’s surnames.
FaceTime
Whilst the maternal grandparents and the father seek orders that the children have video calls with the father on a continuing basis rather than just on special occasions, it is uncontested that the FaceTime calls between the children and the father are not working in their current form. The Court Child Expert was of the view that any time the children spend with the father should be in person rather than by video calls as they do not appear to be a helpful means by which the children spend time with the father. In oral evidence the Court Child Expert did support calls occurring after the children’s birthdays, on Father’s Day and on Christmas Day.
I am satisfied that it is in the children’s best interests that these calls continue, albeit in a more limited fashion than is currently occurring as the children will now be spending face to face time with the father. It is important that these continue on a more regular basis than once every two months as proposed by the maternal grandparents and on the special occasions only as proposed by the Court Child Expert so the children have the opportunity to share and communicate with the father in some form on a regular basis. This will ensure a meaningful relationship which I have found will be in their best interests.
The maternal grandparents need to proactively encourage these calls. It is in the children’s best interests that such calls not be fettered in any way and orders will be made that the maternal grandparents are not to be present during such calls and distractions such as the television are removed. To eradicate the issue of the children having their evening meal at the time the calls are scheduled, the time will be changed to that proposed by the father, being 4:30 pm – 5 pm.
Passport and the Children’s Travel
During the course of final submissions the court was advised that the father would agree to the orders sought by the maternal grandparents that they be at liberty to obtain passports for the children and accordingly orders will be so made. The father should be advised as to when the maternal grandparents propose to travel with the children and orders will be made for the provision of this information and for the children to have the benefit of make-up time if required subsequent to their return from overseas travel.
Further Ancillary Orders
In light of the maternal grandmother’s issues with speaking with the father directly such communication will only occur in cases of emergency and at all other times via email or text.
So that the father can participate in the all forms of the children’s lives it is in their best interests that he be provided information as to their schooling, medical issues and be able to attend school and extracurricular activities and orders will be made in this regard.
CONCLUSION
These poor children have had the most traumatic experience. The children and all the parties are understandably grieving the loss of the mother. It is certainly in the children’s best interests that they continue to be cared for and loved by the maternal grandparents where they are able to continue their significant and important relationships with both them and their siblings.
Whilst the concerns and feelings of the maternal grandparents are understandable, I am satisfied that it is in the best interests of Z and W that they re-establish a relationship with the father and that this relationship be a meaningful one rather than token. I agree with the father that it is important for the children that they do not effectively lose both their parents.
I appreciate that the father will be disappointed that I have not made orders that the children spend as extensive time with him as sought, but I am satisfied that the orders I will make are an appropriate balancing of the concerns the maternal grandparents and I have as to his continued drug use and mental health issues.
The parties are encouraged to move forward in their co-parenting relationship in the best interests of the children. The orders made for the children to spend time with the father are in their best interests and the court expects compliance with them; such compliance includes the maternal grandparents proactively encouraging the children’s relationship with the father including the time they are to spend with him. Similarly, the court expects that the father will carefully comply with all his obligations pursuant to these orders so as to alleviate the maternal grandparent’s concerns as that is in the children’s best interests.
I make Orders accordingly.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 23 November 2022

File number(s):	PAC 4962 of 2020
Judgment of:	JUDGE MURDOCH
Date of judgment:	23 November 2022
Catchwords:	FAMILY LAW – CHILDREN – biological mother of children deceased – where it is uncontested the children will continue to live with the maternal grandparents - application by maternal grandparents for father to spend indefinite supervised recognition time with children– risk of mental health issues and potential drug and alcohol misuse by the father assessed– application by the maternal grandparents to change the surname of the children – supervised time graduating to unsupervised time between father and children with restraints ordered.
Legislation:	Australian Passports Act 2005 (Cth) ss 7 & 11 Births, Deaths and Marriages Registration Act 1995 (NSW) s 28 Family Law Act 1975 (Cth) ss 68B, 65D, 60B, 60CC, 61AD
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Chapman and Palmer [1978] FamCA 86 Dieter & Dieter [2007] FamCA 608 Isles & Nelissen [2022] FedCFamC1A 97 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 M & M [1988] HCA 68 Napier & Hepburn [2006] FamCA 1316; and Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	166
Date of hearing:	22-23 August 2022
Place:	Parramatta
Solicitor for the Applicants:	Ms Hamilton of Counsel
Solicitor for the Respondent	Mr Reeves of Counsel

PAC 4962 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KELSEY First Applicant MR KELSEY Second Applicant
AND:	MR BELL Respondent

order made by:	JUDGE MURDOCH
DATE OF ORDER:	23 November 2022

Date	Event
1970	Maternal grandfather born.
1973	Maternal grandmother born.
1990	Maternal grandparents marry.
1988	Father born.
1989	Mother born.
2009	Mother has child X with Mr Perrins.
2011	Mother and father commence relationship.
2012	Child Z born.
2015	Child W born.
2018	Mother has child Y with Mr Reed.
2020	Mother commits suicide in the family home whilst living with the children and her then partner Mr Reed.
06/08/2020	The maternal grandparents take the children to their home and the children remain in their care.
29/08/2020	Maternal grandparents facilitate time between the father and Z and W in their presence.
19/09/2020	Initiating Application filed.
14/10/2020	Father files Response.
14/10/2020	Matter adjourned for Interim Hearing.
20/11/2020	Child Inclusive Child Dispute Memorandum produced.
24/11/2020	Interim Orders made by the Court for the children to live with the maternal grandparents, Z and W to have FaceTime on two occasions per week with the father and for the maternal grandparents to share parental responsibility to the exclusion of the father save for changing the children’s names and providing for the father to undertake hair follicle testing.
09/08/2021	Family Report produced.
11/11/2021	Final Orders made for X and Y on an Undefended Basis as against the 1^st and 3^rd Respondent fathers.
22/08/2022	Matter listed for Final Hearing.