Keneally & Neaves - [2024] FedCFamC2F 438

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keneally & Neaves [2024] FedCFamC2F 438

File number(s): NCC 3279 of 2021

Judgment of: JUDGE BETTS

Date of judgment: 15 March 2024

Catchwords: FAMILY LAW – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.

Legislation: Family Law Act1975 (Cth), Pt VII

Cases cited: Keane & Keane [2021] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 244

Date of last submission/s: 21 February 2024

Date of hearing: 19, 20 and 21 February 2024

Place: Newcastle

Counsel for the Applicant: Mr Brady

Solicitors for the Applicant: Toronto Legal

Counsel for the First Respondent: Mr Guyder

Solicitors for the First Respondent: Harpers Legal

Counsel for the Second Respondents: Mr Allen

Solicitors for the Second Respondents: Grace Family Law Solicitors

Counsel for the Independent Children’s Lawyer: Ms Beckett

Solicitors for the Independent Children’s Lawyer: Jennifer Blundell and Associates

ORDERS

NCC 3279 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KENEALLY

Applicant

AND:
MS NEAVES

First Respondent

MR ROBERTS & MS ROBERTS

Second Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

15 MARCH 2024

THE COURT ORDERS THAT:
1.All prior parenting Orders be discharged.
2.The First Respondent Mother and the Second Respondent Maternal Grandparents (or either of them) have shared equal parental responsibility for the child X born in 2018 (“the child”).
3.The child live with the Mother.
4.The child spend no time and have no communication with the Father.
5.Pursuant to section 68B of the Family Law Act1975, the Father is restrained from:
(a)Contacting or communicating with the child, including by social media or through a third party;
(b)Spending time with the child;
(c)Approaching the child or the Mother;
(d)Approaching or attending at any school/s that the child attends, or at any place the child or the Mother may reside;
(e)Removing the child from the care of any person or organisation (including any extra-curricular care provider) with whom the Mother or Maternal Grandparents have placed the child.

6.The Mother and the Maternal Grandparents are at liberty to provide a copy of these Orders to any school attended by the child and to any other person or organisation referred in the preceding Order.
7.Pursuant to section 68B of the Family Law Act 1975, the Mother is restrained from:
(a)At any time when the child is in her care, possessing, consuming or being in any way affected by, any illicit substance or any prescription medication that has not been otherwise properly prescribed to her;
(b)Knowingly exposing the child to “family violence” at any time when the child is in her care. For the purposes of this Order “family violence” is defined in section 4AB of the Family Law Act 1975, a copy of which section is attached to these Orders.

8.It is a condition on the child living with the Mother that:
(a)If requested by the Maternal Grandparents, the Mother is to provide the Maternal Grandparents with a letter from her treating General Practitioner confirming that she is compliant with any relevant mental health plan, with the Mother being required to provide her General Practitioner with a copy of these Orders and notify the Maternal Grandparents in the event she changes her General Practitioner;
(b)If requested by the Maternal Grandparents, the Mother is to deliver the child to the Maternal Grandparents or otherwise allow the Maternal Grandparents to collect the child from her at any time in the event that the Maternal Grandparents express concerns to her about the child’s safety and wellbeing.
(c)The Mother is to notify the Maternal Grandparent’s within twelve (12) hours of the following:
(i)NSW Police or the Department of Communities and Justice attending the Mother’s residence;
(ii)NSW Police or the Department of Communities and Justice interviewing the Mother or the child;
(iii)NSW Police or the Department of Communities and Justice removing the child from the Mother’s care; or
(iv)The Mother being charged with, or convicted of, any criminal offences. IT IS NOTED THAT this does not include traffic offences for which the Mother is given a ticket, unless such ticket relates to driving with a prescribed blood alcohol concentration, driving under the influence of alcohol or a drug, driving dangerously while the child is in the motor vehicle or driving with the child unrestrained in a motor vehicle.

9.These Orders authorise the child’s General Practitioner to provide to the Maternal Grandparents, at their expense, any and all medical information they may request in respect of the child as thought the Maternal Grandparents were themselves parents of the child. The Mother is to ensure that the child’s treating General Practitioner is provided with a copy of these Orders and the Mother is to notify the Maternal Grandparents in event she changes the child’s General Practitioner.
10.These Orders authorise any school/s attended by the child to:
(a)Provide the Maternal Grandparents with copies of the child’s school reports, attendance records and any other documents ordinarily provided to parents as though the Maternal Grandparents were themselves parents of the child;
(b)Nominate Maternal Grandparents as emergency contacts for the child, and as the first points of contact in the event of any concern the schools have in respect of the child’s attendance, the child’s presentation, the child’s behaviour or any other concern the school may have about the quality of care being provided to the child. IT IS NOTED THAT this order is not intended to derogate in any way from the school’s mandatory reporting and notification requirements at law, but rather to provide additional support for the child in the event the school has any concerns about his care.

11.Within fourteen (14) days from the date of these Orders, each party will do all acts and things and sign all documents as may be necessary to apply to the Registry of Births, Deaths and Marriages to record the Applicant, MR KENEALLY, as the Father of the child, X (born in 2018) on his Birth Certificate.
12.Pursuant to section 11(1)(b) of the Australian Passports Act2005, the Mother is authorised to apply for and retain a passport for the child without the Father’s written consent or approval and without him having to sign any documents.
13.Pursuant to section 65Y of the Family Law Act, the Mother and the Maternal Grandparents are at liberty to travel outside of the Commonwealth of Australia with the child whether or not the Father has consented to any such travel.
14.A copy of these reasons for judgment be taken out and provided to the parties as soon as possible.
15.The Independent Children’s Lawyer is to provide a copy of the reasons for judgment and these Orders to the Department of Communities and Justice and a copy of these Orders to the Commissioner of Police, New South Wales.
16.The Independent Children’s Lawyer’s application for costs is dismissed NOTING THAT:
(a)The Father is in receipt of a grant of Legal Aid and would otherwise suffer hardship if the Court were to make an Order for costs against him in respect of the costs of the Independent Children’s Lawyer;
(b)The Mother would suffer hardship in the event that the Court were to make an Order for costs against her in respect of the costs of the Independent Children’s Lawyer;
(c)The Maternal Grandparents have been privately funding this litigation including the Mother’s costs, and, given the other findings the Court has made in relation to this matter and particularly given the great sacrifice the Maternal Grandparents have and continue to make to ensure this child is safe, the Court considers that circumstances could not “justify” the Court making an Order against them in respect of the costs of the Independent Children’s Lawyer.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW
These proceedings concern the future parenting of a young boy, X, born in 2018. I will refer to him as “X” in these reasons.
X is a little over six years old, and he has started kindergarten this year. He is generally in good health, although he has had some issues relating to his speech and communication, and he presently attends a speech pathologist. Essentially, he has been diagnosed as having a developmental delay. His primary school, where he attends kindergarten, has encouraged the mother to make an NDIS application on his behalf. He also experiences some behavioural difficulties from time to time.
The case is rather a difficult and sad one in some respects. The parties to these proceedings are not merely X’s mother and father, but also X’s maternal grandparents. The reason that the maternal grandparents are involved in this litigation is because, quite simply, they have been a rock of support for this little boy throughout his life at times when both parents have been unable to properly or safely care for him.
The ultimate question in this case is where X should be living long term and what the arrangements should be for the other parties to spend time with him.
The Applicant in the proceedings is X’s father, Mr Keneally, who lives at Suburb B near City C with the paternal grandmother. The First Respondent is X’s mother, Ms Neaves. She lives in Suburb D in the City E area, about 20 minutes’ drive away from the father. The Second Respondents are X’s maternal grandparents, Mr Roberts aged 71, and his wife Ms Roberts aged 72. They are self-funded retirees in good health, and they live in the City C region, about thirty 35 minutes’ drive away from the mother.
The parents were in a rather horrific, toxic, dysfunctional, drug-fuelled and violent relationship. The relationship commenced in around 2014 and ended on or about early 2019, although the parents maintained some ongoing contact after separation. This was essentially because the father kept attending at the former home occupied by the parents, and the mother, who had been a victim of high-level family violence at his hands during the relationship, was fearful of him and did not object to him coming over. On occasions, the mother took the view that she should be promoting the father having some sort of a relationship with X, who was in her care. She was in a difficult and vulnerable position.
Ultimately, an Apprehended Violence Order (“AVO”) was put in place to protect the mother from the father in about late 2019, which the father went on to breach about three occasions, the last being in early 2021.
X has been living with the mother throughout his life, through thick and thin and all of the difficulties that she has encountered, and there have been many.
The maternal grandparents, and I should add the maternal aunt Ms F, have been having regular time with X throughout his life, both when the parties were in a relationship when X was very young, but also in subsequent years. X generally spends about one night per fortnight with the maternal grandparents, usually on a weekend.
X has not spent any time with his father at all since late 2020. It is common ground that X has no real memories of his father, other than any memories he may potentially have of his father being under the influence of drugs. That is to say, whatever memories X has of the father were at a time when the father was addicted to illicit drugs.
The father runs a case that he should be spending time with X, initially commencing by way of supervised time, but graduating up from supervision into a form of substantial and significant time. The mother runs a case that the father should spend no time with X whatsoever, and that an injunction should be put in place to protect X from him, given his past violent behaviour, drug use and other concerns.
The maternal grandparents find themselves caught up in this litigation, because they are willing to look after X on a full-time basis, but only if the court considers that the mother would pose an unacceptable risk of harm to X if he were to stay living with her. They contend that the mother poses no such risk.
The father disagrees. He contends that the mother does pose an unacceptable risk of harm to X or, at the very least, that she might pose such a risk. Though initially seeking an order that X live with him if the court made such a finding against the mother, the father in fact ultimately acquiesced in an order that X would be better to live with the maternal grandparents if the court came to that decision.
THE HEARING & MATERIAL RELIED UPON
This matter came before me for hearing for three days from 19 to 21 February 2024. Mr Brady of counsel appeared for the father, Mr Guyder of counsel appeared for the mother, Mr Allen of counsel appeared for the maternal grandparents, and Ms Beckett of counsel appeared on behalf of Ms Blundell, the Independent Children’s Lawyer (“ICL”).
For the purposes of the hearing, the father relied upon his Case Outline Document filed 16 February 2024, an Initiating Application filed 30 September 2021, and the father’s trial affidavit of 31 January 2024. The mother relied upon her Case Outline Document filed 19 February 2024, her Amended Response filed 5 February 2024, and the mother’s trial affidavit filed 5 February 2024. The maternal grandparents relied upon their Case Outline Document filed 19 February 2024, the affidavit of the maternal grandmother filed 6 February 2024 and the affidavit of the maternal grandfather filed 6 February 2024. The ICL relied upon her Case Outline Document filed 16 February 2024.
I record here that much of the above trial material was filed late, but that there was no opposition taken to the late filing by the parties and, in the circumstances, the court granted leave to the parties to rely upon that material.
There were numerous exhibits that were tendered in the course of the hearing and I will refer to these as necessary.
I have the benefit of a Family Report in this case, and I will refer to the evidence of the Court Child Expert later in these reasons. The Court Child Expert had also prepared a Child Impact Report. Both the Family Report and the Child Impact Report were marked as exhibits.
CHRONOLOGY OF EVENTS
I intend now to outline the chronology of relevant events in this case. Some of the evidence is rather graphic and confronting, but facts don’t change, and it is the Court’s role to make such findings as it reasonably can in order to arrive at a decision. I should also make clear that some of the dates of relevant events are a little unclear, vague or even contradictory in the material. This is unsurprising. Both parents were using illicit drugs during the period of the relationship, as well as subsequently. And in such circumstances, it is to be expected that parties would have different recollections about different events, including such things as dates.
I have done the best I can in arriving at findings by reference to the affidavit material, the Child Impact Report, the Family Report, as well as the various exhibits that have been tendered. While there may be some confusion around dates here and there, the essential thrust of my findings is unaffected.
The father
I begin by observing that the father was born in 1980. During his relationship with the mother, the father was working as a tradesperson and as a performing artist working nights. He has two other children who lived with the parties for different periods during the relationship, being his daughter, G born in 2007, who is now sixteen years of age, and his son H born in 2011, who is shortly turning thirteen. They are each the children of earlier relationships of the father. I should note that since the parents separated, these children are now spending approximately half the time with the father by agreement between he and their respective mothers.
The father is presently self-employed. He has his own business.
The mother
The mother was born in 1983. She essentially works as a homemaker looking after X, although she also works as an artist as well and has sold some of her work. She receives a sole parent pension, as well as some form of income protection payment through her superannuation fund. Her income protection relates, as best I can tell, to her previous work in the administrative field during the relationship, and her entitlement inevitably seems to arise from the significant mental health challenges she experienced in 2016, to which I will turn a little bit later.
The early days of the parents’ relationship
The parents, as I have indicated, commenced a relationship in around 2015, when the father moved in with the mother. Both parties were working, and it seems that, at least from the outside looking in, their relationship began in a positive and healthy way.
However, there was an undercurrent of toxicity arising out of the fact that the mother had longstanding mental health issues and both parties were using illicit drugs. In the father’s case in particular, he was using illicit drugs and he introduced the mother to that most dangerous and insidious drug.
During the relationship both parties in fact used illicit drugs and substances, and no doubt, the parties also used other party drugs from time to time. The father, for his part, was using drugs most days, and was a heavy user of illicit drugs.
It soon became apparent during the relationship that the father was a bully towards the mother, and that he would act in intimidating and aggressive manners towards her. I accept the mother’s evidence that in the course of arguments he would call her a “bitch”, a “slut”, a “cunt”, “stupid” or “retarded”. The father would also behave aggressively to the mother when he had been drinking, and he had a habit of becoming intoxicated from time to time.

The maternal grandparents soon began to observe negative changes in the mother. What had started out as a positive relationship from their perspective, began to take a darker and more sinister turn. In particular, they noted that the mother started isolating from them and would often miss family events, usually at the last minute.
Another feature of the parents’ relationship was that the father, as best I can tell from the evidence before me, was a very “sexual person”. He would send the mother numerous sexual images and messages on an uninvited basis, some of which demonstrated a dominating or at least domineering sexual attitude. The mother annexes numerous of the father’s messages to her affidavit, and I will quote from some of those a little later. I pick as one particular example, however, the messages recorded at page 34 of the mother’s affidavit and which form part of exhibit 12. They consist of the following messages from the father to the mother, which give a flavour of the domineering or dominating nature of the father, and perhaps more broadly into the coercive and controlling manner in which he behaved. There are some typographical or other obvious errors in the texts that appear. I will read them as I believe they are meant to read:
The right thing for me now, after consent is given, entails me tearing whatever clothing you have on off, slapping your face, slapping your tits, fucking your face hard so you spew. Then I will be bending you over whatever the fuck is closest and violently fucking the living fuck out of you. Then fix the leaking tap. And yeah, that is literally all I can think about. I will fuck you so hard through your pain to the other side where you will float in bliss. This really isn't helping. Fuck. Or you could get stoned.
And the messages go on.
In mid-2016, the mother’s mental health, which had always been precarious since she was a child, seems to have completely deteriorated. The tragic background of the mother’s life is that, through no fault of her own, she had been sexually abused by someone when she was herself a child, and this had obviously and not unexpectedly had a significant impact on her life. She had, for example, been diagnosed with post-traumatic stress disorder, anxiety and depression from her teenage years. She also suffered from a mental condition amongst other conditions.
In mid-2016, when the mother’s mental health deteriorated, she began experiencing high level anxiety attacks and dramatic mood swings. She would lock herself in her bathroom for hours and generally withdraw from household life. This was problematic for the father’s older children, G and H, because the father had, as a general statement, allowed the mother to do the bulk of the day-to-day parenting of them around his own work commitments, and clearly the mother was not up to that task. I accept the father’s evidence that he often had to return home from work early because of the mother's behaviour or because she was having a mental health episode, or on occasions, because she had been taking drugs and was simply unable to look after the children.
The mother was in fact unable to continue working at this time and ended up losing her job. But this is only one half of the story.
The other half of the story is that the father was behaving in a coercive, controlling manner towards the mother. He was regularly being verbally abusive towards her. He would regularly check her mobile phone to see if she had been contacting other males and then question her about any messages he did find, especially if he didn’t know the name of any particular person that he saw on the mother's phone. He was questioning who she spent time with, where she was going and the like. On occasions, he would yell and scream in the mother’s face. He could do so for hours, in the course of which she would lock herself in a room. On occasions, he would also be physically violent and aggressive towards her. This was the reality of the life these parties were living behind closed doors. It was anything but a safe and healthy environment for G and H, X not yet being born at that stage.
As a result of the mother’s mental health effectively collapsing, she ended up going to hospital where she was assessed in relation to a claim for a disability support pension and her various significant mental health issues were referred to in the associated medical material.
I should clarify one thing and say that the mother’s mental health was deteriorating - I said it was mid-2016. That was my mistake. In fact, it was mid-2017 that she deteriorated to this extent. According to exhibit 14, which is annexed to the mother’s affidavit at page 15 of the annexures, a report from her then-GP, Dr J of mid-2017 records as follows.
To whom it may concern.
This is to certify that the above, has suffered from major psychiatric disorders since the age of approximately 16 years. This has included treatment from psychiatrists and psychologists with an acute psychiatric admission. Her DSM-5 classification includes PTSD, [severe] anxiety [and other mental health conditions]. There is no cure for any of these complaints. Treatments are designed to lessen the severity of her symptoms. These therapies are not always successful. Her symptoms are so severe that she has trouble leaving her place of abode, and even on visits to myself, she has to be accompanied by her father. She lacks trust in others for obvious reasons, has difficulty concentrating on the most minor of issues, has very low self-esteem or confidence. Given the nature and duration and severity of these illnesses, I believe that she will never be able to re-enter the workforce, and treatments at best can only lessen the severity of her symptoms.
The relationship between the parents was clearly a toxic and dysfunctional one, and one in which the father was a perpetrator of family violence and the mother’s mental health was simply crumbling.
The mother later fell pregnant with X. Unfortunately, the nature of the relationship between the parents did not in any way improve. On one particular occasion, in 2017, they had an argument on the veranda and, in the course of that argument, the father pushed the mother over and she landed on her back. This was family violence and particularly dangerous family violence for a woman who was pregnant.
Relationship following X’s birth
X was born, as I have earlier indicated, in 2018.
It would be fair to say that the mother was immediately struggling to cope with parenting X, as well as having to look after the father’s other children who were regularly attending at their home. The father’s verbal abuse towards the mother continued. I accept her evidence that on one particular occasion, she remembers that he called her a “retarded fat cunt”. The father’s own admission is that he was using high amounts of illicit drugs at the time and that, to quote from paragraph 55 of the Family Report, he was “crazy” and “couldn't control my emotions”; and the father admitted to the Court Child Expert that this made him “erratic and unpredictable, and this is who I was for [X].”
Soon enough, the father managed to lose his own job. The mother suggests that this related to him failing a drug test. That may well be so, but I don’t need to make any specific finding about it.
I accept the mother’s evidence that on one occasion, the father sent her a video of himself in women’s underwear with X present. The father admitted to the Court Child Expert that he had done this, that at the time he sent the video he was high on illicit drugs, unable to care for X, and that the video was some way of asking the mother to assist him. All of which I find rather odd, if not rather disturbing.
On any view, the relationship between the parties was spiralling. The maternal grandmother, Ms Roberts, had some serious concerns about family violence by 2018. I accept the evidence that she gives in paragraph 12 of her affidavit. Firstly, that in or around the end of 2018, she was visiting the mother at her place, and she noticed that the mother had three big bruises on her arm. She asked the mother “How did you get those bruises on your arm?” The mother told her “[Mr Keneally] doesn’t know his own strength.” She asked the mother, “What do you mean?” The mother then responded, “We had an argument and I tried to get away from him, and he grabbed hold of me.” The maternal grandmother says, understandably, that she was concerned about this event.
It is noteworthy that the mother’s own statement to her that “[Mr Keneally] doesn’t know his own strength” is classic victim behaviour for family violence victims, in the sense that the mother was, while admitting the father had been violent to her, actually excusing him by suggesting that it was some sort of accidental excessive use of force.
I also accept the maternal grandmother’s evidence in paragraph 12 of her affidavit that in either late 2018 or early 2019, she was again visiting the mother, and that the father came around to the home, and she could tell he was extremely angry. He said to the mother “I've been trying to call you all day, and you haven't answered.” The maternal grandmother then stepped in and said, “I’ve been here all day and I haven’t heard the phone ring, and it’s right here on the kitchen bench.” The father then asked the mother if she wanted to go to Sydney with him to a concert. The mother said, “Yes, but will you get angry if I don't get ready on time?” At this point, the mother was visibly shaking and appeared to the maternal grandmother to be very anxious and scared. The father would not leave the mother alone to get ready, and eventually the maternal grandmother said to him words to the effect of “If you don't leave her alone to get ready, you will see a side of me that you've never seen before. Just go and sit in the lounge room.” The maternal grandmother then stayed to ensure that things remained calm.
I accept the mother’s evidence set out in paragraph 22(i) of her affidavit that on one occasion, although she could not remember the exact date,
[Mr Keneally] found my pocket knife and showed me that he had it in a threatening manner, before placing it on the bench. When I questioned why he had the knife, he said words to the effect, “What? It isn’t like I'm going to stab you or anything.
I accept her evidence that she was frightened by this behaviour.
I also accept the mother’s evidence that the arguments between she and the father were continuing, such that on occasion she became scared for her own safety and even that of X, and would hide in the bathroom potentially for hours.
By this time, the parents had come to the attention of others, and somebody made a report to the Department of Communities and Justice (“DCJ”) about possible neglect of X’s health, seemingly based upon the mother’s own mental health issues. The DCJ were to later play a much more significant role, to which I will turn a little later.
One particular concern which the mother raises in her material, and which was the subject of some cross-examination at the hearing, is that the father, on more than one occasion, sexually assaulted her when she was asleep. She deposes in paragraph 22(f) of her affidavit that the father would have sex with her while she slept, and that he would often tell her about it in the morning or show her a video recording of the sex. She said that he had also sent her a text message on one occasion, apologising for his actions, and that she was horrified and concerned as she was not aware of nor did she consent to the sex.
She subsequently made reports of his behaviour to the Police, but ultimately, as is quite clear from the material, no charges were ever brought against the father. The mother also deposes that on one occasion, the father was having sex with her while she was asleep, and she woke up in pain to find him ramming what she describes as a dildo into her vagina.
I should be clear in saying that for his part, the father denies any such sexual behaviour whatsoever. His case is that there was no sexual activity between the parties that had ever been anything but consensual on his part.
I was taken, throughout the hearing, to various text messages from the father, as well as various recordings which the mother says relate to non-consensual sex between the parties and, in particular the father, taking advantage of the mother being asleep or unconscious to engage in some form of sexual activity with her. I intend to refer to such matters a little later, because they need to be quoted from at some length in order to get a fuller context. But it suffices to say, at this point in time, that I accept the mother’s evidence that there were occasions when the father did sexually assault her at times when she was asleep, half-asleep or even completely unconscious. I reject the father’s denials in this respect. His own words, to which I will turn shortly, tell against him. In saying these things, I should also be clear however, that the father was himself using very high amounts of drugs. And as to his own personal state of mind at the time of these various events, who can say? But from the mother’s perspective, his behaviour was family violence and at a high level.
Final separation
In early 2019, the parties finally separated, and the father moved out of the home.
I accept the evidence of the maternal grandparents that the father broke the news to them at a family barbecue when he attended without the mother, telling them that the parents had had an argument and broken up. He said that it was his fault and that, “I went through her phone again and started the argument. I don’t know why, I’m addicted to [illicit drugs]. I have a problem and I need help.” In fact the maternal grandfather took the father to hospital after this event, so that he could get some assistance for his admitted drug addiction, although the father was not admitted at that time as an inpatient.
The mother’s mental health remained parlous during this period. According to exhibit 14, and being a particular reference to a report by her then treating psychologist Ms K to her then GP, Dr L, it was noted that the mother: had a history of childhood trauma and diagnoses of PTSD and mental health conditions; that she experienced periods of intense distress with emotional and behavioural dysregulation and dissociative episodes; that she had a history of substance abuse. However, it was also noted that she had various strengths and, in particular, the strong support she received from her parents.
Events post-separation
In mid-2019, Police were contacted as a result of the parents being seen to be arguing. However, when Police spoke to the parents, the mother was not at that time wishing to pursue an AVO.
As I have indicated, the father was attending at the mother's home, and there was a clear power imbalance between them. The mother also had enough ‘street smarts’ to realise that if she was to complain about the father’s behaviour to Police and an AVO be taken out against him, that she might find herself in trouble with the child welfare authorities (DCJ), and she was anxious to avoid that. She was also anxious to avoid making the father upset. She wanted to keep herself and X safe. She was doing the best she could to survive in what was a very difficult situation for her.
In mid-2019, the father messaged the maternal grandmother saying that the mother had self-harm thoughts and that he had called an Ambulance. The maternal grandparents raced around to the mother’s home. Notably, the mother had installed deadbolts on the front door by that stage, so even the grandparents could not get into the home. The maternal grandparents could hear the father yelling at the mother, and they could hear X screaming. The father was outside the back door yelling at the mother to let him in; she was inside with X. X was in the mother's arms at the time.
Ultimately, the mother let the maternal grandfather in, who in turn let the maternal grandmother and the father in. When the Ambulance officers later arrived, they ended up talking to the parents before leaving again. They did not consider that the mother had self-harm thoughts or that they needed to do anything further. They did, however, suggest that the mother and X stay with the maternal grandparents for the night. Notably, the mother did not want to leave the house in case the father broke in, but she did place X in the grandparents’ care, and they looked after him for the night. The maternal grandmother later moved in with the mother and remained in her home for a few weeks.
Throughout this period, the mother had been seeing her clinical psychologist Ms K, whose report I briefly touched upon earlier. It seems that the mother’s last session with Ms K was around mid-2019. There is no evidence that the mother has been back to see Ms K since that time, although the mother said in the witness box that ‘her file remains open’ and that she can see Ms K at any time she wishes to.
Notwithstanding that the parties were separated, the father was continuing to attend at the home. On one occasion, in late 2019, the maternal grandfather and the mother were talking, and the father was found to be hiding under the mother’s back deck. I accept the mother’s evidence that he did so on a number of occasions. He was continuing to behave in a coercive and controlling way and effectively spying on her.
By late 2019, reports were being made to the DCJ about the obvious chaos that was going on in X’s life, and in particular, that the mother was obviously experiencing mental health issues and there were obviously ongoing arguments and problems between the parents, to which X was obviously being exposed. The DCJ began working with the family, entering into a ‘family action plan’. Notably, the plan included that the father was not to drive X in a car on his own due to his drug use. The Department were clearly supporting the mother to try to keep the father away from her, as well as managing her mental health and helping her to stop self-medicating with drugs. The maternal grandparents were also working with the Department as well.
It is quite clear at that time that the mother was trying to appease the father, was concerned about not coming to the attention of authorities if she could help it, and worried about losing X. It is also obvious that the maternal grandparents were providing the mother with significant practical support, and that they too were very worried about what might become of their beloved grandson.
In the period around late 2019, the father was texting the mother incessantly. In late 2019, for example, he sent her five texts between 12.26 am and 12.32 am. Given the father’s history, it is likely that he was under the influence of drugs or alcohol at the time he sent these texts.
In late 2019, the parties had a big argument at the home. The mother attempted to leave the scene with X, but the father threw X onto a couch in an angry and frustrated manner. Fortunately, X was not injured. Seemingly on the same date, although there is some inconsistency in the material about this in terms of dates, the father pushed the mother against the garage door at a time when she had X in her arms. Both parents were yelling at each other. The neighbours ended up calling the Police. Once again, when the mother spoke to Police, she did not seek an AVO because she was appeasing the father.
The mother was fearful of how the father might react, and she did not want to come to the attention of the child welfare authorities. In relation to the ‘garage door incident’ - if I can call it that – in late 2019 the DCJ screened it in for ‘dangerous behaviours’ involving X: see exhibit 20. They clearly regarded it as a serious matter.
There were also serious concerns about X, who after this event stayed with the maternal grandparents for a short period. He was very unsettled during the night, clinging, not eating, experiencing night terrors. The DCJ considered that he was a child who had been significantly psychologically harmed as a result of witnessing family violence between his parents. The DCJ were also concerned about parental mental health issues and about the drug abuse by both of X’s parents.

In late 2019, the father sent the mother fourteen text messages between 1.45 am and 2.29 am, and a further sixty-five text messages between 2.41 am and 6.06 pm. Not long after, he attended and sought help from M Centre in relation to his drug use. The mother, in the meantime, summonsed up the courage to go to the Police, attending there in the company of the maternal grandmother and a support worker, where finally, with their assistance, she sought an AVO.
The DCJ appeared to have supported the mother’s decision to take out an AVO. They clearly wanted the mother to do so for X’s protection. The AVO included requested conditions that the father not approach the mother, except via a lawyer, or go within one hundred metres of where the mother was living or working.
It was around this time that G and H stopped having any form of contact with X at all.
The mother had, by this stage, spoken to Police about the father's sexual mistreatment of her, to which I have referred previously, and the DCJ screened the child in as being at risk of significant sexual abuse based on the father’s sexually abusive behaviour towards the mother.
In early 2020, the Local Court made a final AVO by consent for a period of two years. The father agreed to such an order as I have indicated, but he says that part of his consent was motivated by the mother threatening to make a false rape allegation against him if he did not agree. The mother denies making any such threat, and I make no specific finding about it.
In mid-2020, the father breached the AVO by attending the mother’s home. The DCJ themselves conducted a home review of the mother’s place after this visit. And it is quite clear, (see exhibit 22) that at that time, the mother was struggling. She was hostile and aggressive to the case workers. She had a dishevelled appearance, but she did, in fairness, attempt to participate in conversation with them. It was noted that the maternal family were aware of the mother’s deterioration and were assisting her with temporary care of X.
The Department addressed various risks in the mother's care.
In relation to the issue of drugs, the mother had previously disclosed to case workers that at times, she used drugs to self-medicate when her mental health was poor. In addition to prescribed medication, she admitted she used illicit substances, prescription medication, non-prescribed substances, and if she couldn’t source those drugs, then she would use illicit street substances. She admitted that her use of drugs varied depending on the state of her mental health. That is to say, she could go months without using drugs, and then revert back to using drugs every second day. Notably, she did not believe that her drug use impacted her parenting, which demonstrates a lack of insight on her part. She explained to the departmental case workers that illicit drugs would get her off the floor when she was depressed. Importantly, though, it was also clear that the mother was placing X with the maternal grandparents whenever she intended to source illicit drugs or use them. When questioned if she had used drugs in more recent times, the mother denied it and became angry. She declined the departmental request for a urine screen, which she had consistently refused to do ever since they first opened their case.
The mother explained in the witness box that she was resistant to urine screens because of privacy concerns, given her own adverse childhood sexual abuse. I accept her evidence about that, but it is regrettable that she was unable or unwilling to undertake such testing.
The Department did not consider that substance abuse was a serious risk for X at that time, because it could not be substantiated that the mother’s use of drugs seriously impacted her ability to protect, supervise or care for X. This seems to have been because she was ensuring that X was not with her at times she was using drugs, and that she was making sure that the maternal family had him in their care.
It was also noted by the Department that X was not actually in the home at that time in mid-2020 when they attended at the mother’s home and were concerned about the mother’s physical appearance. Notably, the maternal family were aware of the mother’s decline in mental health, had increased their support, and were checking in with the mother daily.
In terms of family violence, the Department were speaking to the mother at some length about this issue as well. It is quite clear from their records, and I am referring here to exhibit 22, that the mother ‘flipped’ between:
·not wanting to cut the father out completely, as in her opinion she and X would be in more danger if she did so; and
·on the other hand, she also needed to contact the father to help with packing up and moving house.
So the mother was vacillating, as many victims of family violence do, but at least part of her motivation in not wanting to cut the father out completely was fear. In the witness box the mother explained that a person in her position says what they need to say to keep themself safe. She said she was genuinely worried that the father would be angry at her if she simply cut him out of X’s life. I accept the mother’s explanation in this respect.
In terms of the mental health risks, the Department observed that the mother did look quite unwell and somewhat dishevelled, but notably, they said that this was different to how she normally presented. She explained that she had a mental illness and that she was symptomatic, and that it had been very stressful trying to find a house, and I accept that these things are true.
Ultimately, sadly, the Department decided that the mother’s mental health did not pose a serious danger to X, because the mother had always stated she didn’t want her mental health to impact him and that when she was unwell, she ensured that X was able to have a time out and about with her parents - that is the maternal grandparents, as well as her sister Ms F. This was confirmed by DCJ with the maternal grandparents and Ms F. The case workers, together with the maternal grandparents and Ms F, had all observed that the mother’s mental health had deteriorated, and that the maternal grandparents and Ms F were providing more care and support for the mother and X in order to ensure their safety and well-being.
Overall, the Department had concerns about the environment that X was in. But notwithstanding the mother’s difficulties it is clear that they considered that she was able to keep him adequately safe with the significant support of her parents. Even though she may have lacked some insight in relation to the impact of drug use on her parenting, she at least had the common sense to place the child with her parents when she was going to use drugs.
The overall picture that I read from this material is, to borrow from an old-fashioned expression, ‘it takes a village to raise a child.’ And my sense of the mother’s care very much is that the other family members in her orbit constituted that village. It was very much a team effort.
In mid-2020, the father was again breached on the AVO for contacting the mother.
By late 2020, the DCJ had closed their file, although they made some referrals of the mother to N Centre and to an organisation called O Centre - neither of which, in fact, occurred because of the intervention of COVID.
There was a further incident which occurred in late 2020, set out in exhibit 17. On this occasion, there was a report made to the Department that the mother had left X in her car for at least twenty-five minutes outside a shopping centre; the car was parked in the car park. X was apparently asleep at the time, and the mother was observed to return to the car with groceries. The mother said, seemingly to attending Police officers, that she was fleeing a family violence situation and did not want to wake her sleeping baby. The mother said in the witness box that she had not been away for as long as 25 minutes and that it was much less than that. I do not accept the mother’s evidence about this. She was certainly away long enough that it came to Police attention. I also note that the mother did not seem to show any remorse or accept much responsibility for this event: see paragraph 51 of the Family Report.
The last time the father saw X seems to have been on or about late 2020. Yet again, he came around to the home uninvited - seemingly at around 11.30 pm, which was hardly a time to go visit his son. He would not leave, and he stayed in the home. The mother took some anti-anxiety medication and went to sleep.
Her evidence is that when she woke up later, the father was on top of her in a sexual position, and she said that he was again having sex with her while she was asleep.
Though the timing isn’t quite clear, at some later point she ended up getting into the bathroom and, from there, calling a friend who in turn contacted the Police. The father was accordingly charged with breaching the AVO, although also additionally charged with an offence, although that charge was later dismissed. It is apparent that the mother did not want to give a statement to Police about what she says was the sexual assault, although the Police did refer the mother to a sexual assault counsellor.
I turn then to the voicemails and messages that the father sent to the mother in relation to sexual matters, because as I indicate this was a matter of great controversy at the hearing.
Tendered before me as exhibit 5 were some recordings of the father left on the mother’s phone or voicemail. In those recordings, the father sounds - as I indicated in the course of the hearing in a colloquial way - as though he was ‘off his head’ on drugs. But what is clear is that the father was very worried about something, and that he was rather incessant in his messaging to the mother, if not frantic. And the same might also be said of text messaging that he sent the mother to which I will also turn.
To quote from some of the father’s messages:
I didn’t know. I didn’t know. I was off my fucking head. I didn’t know, [Ms Neaves]. I didn’t fucking know. I didn’t know. I was just going over there and getting off. Thought you were into it. Please believe me. Please believe me, [Ms Neaves]. Please believe me.
In this respect, I emphasise the father's reference to “getting off”.
Please, I didn’t fucking know. I didn’t know. I didn’t know and I found out. I felt bad. And then you woke up. And please, I fucking, the music was playing, you were moving, and it was all works and everything. I didn’t know. I didn’t know. I swear, I didn’t know. And you had gone off that.
And the next part is inaudible:
I was off my head. I didn’t. I didn’t. I didn’t know. I didn’t know I did it. I promise. I promise I didn’t know.
At this point, I should note that when this recording was played in open court, the mother got up and left the court room. She was clearly visibly upset, understandably.
I was off my fucking head, baby. I didn’t know. I couldn’t tell. I could hardly see. I didn’t know. I just didn’t know. I just didn’t fucking know. I’m so sorry hey. I’m so sorry. What are you going to do? I didn’t know. I honestly didn’t know. I couldn’t tell. I was just fucking fucked. I was caught up in it. I thought you were playing.
And another message:
All right. I’m coming down. I’m going to be home in a minute. I understand you’re upset. I thought you were fucking awake. You were moving and making sounds and I thought you were awake, and then you weren’t. I’m fucked. I will message your dad and see if they can take [X] for the day or me mum. See if she can come and get him, so that we can get this shit done. Relax. Yeah. No. No. Not. This isn’t going to. I’m fucking. Nah. This isn’t. You make me. This is not undoing all the fucking good we’ve done. Hey. This is a little bit of mess, babe. It’s not the end of the world, all right? It’s not the end of the fucking world.
While some of the dates are a little unclear in terms of the voice messaging, the central thrust is that the father was well aware, in my view, that he had engaged in sexual activities with the mother at a time that she was saying she was unconscious or not fully conscious or asleep.
There are various other text messages as well that are set out in exhibit 12, and they include the following from the father.
I held you nose wanting you to wake up. I was frantic. I’m sorry. You make it sound like I was attacking you. You couldn’t even look at me. I’m sorry I scared you. I’ve never been like that. I’m speechless at what a shit cunt I've been. I’m unbelievable. You had to get […] to come over, so I wouldn’t rock up, so you could feel safer. You need to feel safe. You need to feel loved. This isn’t right, what I’ve done. WTF, like why? I can’t seem to snap out of being an arsehole. It’s like I just hate everything. That is fucked. No wonder you do better without me. I scare the fuck out of you. I didn’t take on board how serious this is. I will stop. I can’t do this. Not any more, not ever. Fuck, baby, I really let you down and everyone. I’m pretty much out of control. This is fucked.
And with specific reference to sexual assaults, he says this:
I couldn’t tell. I thought you were in it too. Please believe it was an accident. Please write back. I’m so sorry. It was an accident. I couldn’t tell. […]…
And this is a reference to the mother’s sister Ms F:
…has told the world I’m a rapist because I this shit. I didn’t know [Ms Neaves]. Please believe me. I just can’t believe it. This is the last night together. You were right about one thing. I am a pathetic loser. Once I realised, I was mortified, and I stopped. I can’t explain how horrified and sick I feel. It wasn’t my intention. I couldn’t tell. I was too cooked. Later on, I didn’t realise I woke you up. I know what happened wasn’t cool. It is totally fucked.
The mother sent the father a message which I don't have the full text of, but what I do have reads:
And when I sleep, anyone could just have their way with me, and I will wake up to it, maybe, maybe not. But just know that something has been there, and it hurts physically, and it hurts that you don’t know what I’ve been through, and know how much I just want to be safe, and I don’t feel I’m safe anywhere any more, not even in my own home. It’s horrible. I’m ..... always fight or flight.
To which the father responds:
It is horrible, babe. I’m horrible or evil or something. There’s no reason to do it.
And the mother messages the father:
If you don’t recognise fucking me in my sleep is not rape when asked not to, and I’m the thing, I’m seriously thinking that you haven’t learnt shit, and maybe I made a mistake protecting you all this time. My nose is on my face, because you’re not the victim, cunt.
And in this respect, in relation to the mother’s nose, the father had messaged her to say that he never put his hands on her face, that he tried to hold her nose to wake her up. That’s the backdrop to that message.
In response to the mother’s messages to which I’ve just referred, which effectively accused him of rape, the father said this:
You were right about one thing: I am a pathetic loser. Once I realized, I was mortified and I stopped. I can’t explain how horrified and sick I feel. It wasn’t my intention. I couldn’t tell. I was too cooked. I love you. I always will love you. I’m sorry I let you down again. I will leave you alone. I’m sorry. I really tried hard to give you my best. I’m really sorry. Any favour, anywhere, anytime, I owe you. I don’t hurt people in any way and I don’t demand sex. Anything else, I will do, and I was too fucked up to tell. I’m sorry. I honestly thought you were doing it.
And the mother messages the father:
Your mum didn’t leave you at the house for two weeks. I don’t exactly fuck like a starfish […]. I’m pretty sure it’s easy to tell when I’m into it, N when you woke me up, you tried to act like nothing happened.
Again, a message clearly relating to sexual contact. To which the father responds:
I wasn’t trying to act like anything. I didn’t know you were awake. I was off my head. I realised what had gone on, and I stopped.
I didn’t realise I woke you up.
Thanks for talking to me.
I’m sorry. I know what happened wasn’t cool. It is totally fucked.
Sorry, I wasn’t being more sensitive around it.
And at page 36 of the mother's affidavit, again, with some typographical errors,
I’m not a trapist.
I am sure that's meant to read rapist.
i dom’t practise raping. I don’t go lokking to rape. im not doimg rapee regularly im not bany.
I am not sure what that (bany) means.
I did what I did. 2 times you were receptive […]. So mamy other times and drifted off I didn’t know. The other time i went to pit…
Which I am sure means ‘put’
…the vibrator in i stopped and i heard a vouce say it would be rigbt. We had previously had sex, like half hour b4 hand, like a long sesh. i put it in and u woke up in sjock, and i realised what was going on. im so sorry naby.
That may well be a reference to the mother talking about the dildo event to which I have referred earlier.
I quote all of these matters at some length because I am comfortably satisfied that the father has engaged in sexually abusive behaviour towards the mother, and that his own statements in the text messages and the content of what the parties were discussing, makes it quite apparent that this is so.
As I have indicated, the father was incessantly contacting the mother and being apologetic towards her. In the witness box, he attempted to suggest that he didn’t know what it was that he was apologising for, that he was effectively in a “drug psychosis”, and that there was no sexual impropriety on his part - merely that he had “held the mother's nose” as referred to in a couple of the messages. In this respect I reject the father’s evidence in its entirety. He was lying, and he was unwilling to admit what he had done, perhaps understandably, given potential criminal consequences that can arise. Both of these parents well know that the father sexually assaulted the mother. That is the background of this case. The maternal grandparents also know it as well.
Subsequent to the father’s last visit to the mother, she was referred to a sexual assault counsellor. As I have indicated, she did not want to proceed with any criminal charges.
It seems that the last time that the parties spent any real time together at all was in 2021, when the father went to the mother’s house. He was later charged with a breach of AVO in that respect. And to be fair to the father, that was the last time that he breached the AVO. He says he then stopped all communication with the mother, and I accept that he’s being honest about that. There is no suggestion that he has contacted the mother since that time.
The parents living entirely separate lives
In the meantime, the mother had stopped using drugs and had been undertaking some sexual assault counselling. It is apparent that she had sought help from the ‘P Centre’ program to change the locks at home, and she was hoping to have security cameras installed.
I should add here that the mother did in fact get security cameras installed, and that the maternal grandparents ended up paying for some extra cameras, as well as an alarm system with monitoring support.
Around early 2021, the father seems to have made significant progress in his life, in terms of drugs. The evidence he gives is that he stopped all drugs at that time. He describes himself as having been “in active recovery” or “fully abstinent” since then, and I accept that to be true. There is no evidence to the contrary. To be fair to the father, it was quite a remarkable turnaround from where he had been before.
In the meantime, the mother seems to have re-partnered with a rather unpleasant gentleman by the name of Mr Q. This seems to have occurred in early 2021. Mr Q seems to have stolen the mother’s car. And the father annexes to his affidavit (as annexure “B”) a trail of Facebook messages coming from Mr Q’s Facebook account. These are exhibit 9.

The backdrop to these messages is that Mr Q had apparently stolen the mother’s car, but it is troubling that the mother sent Mr Q a number of messages in which she clearly refers to having illicit drugs. This is what she relevantly says. It begins as illegible, but it continues on:
Wanted someone else so bad. You stole my car and then fucked with my head for hours. It’s really hard. I feel like I’m going insane. I know mmm.
She says to him:
Please talk to me. Are you on your way? Yes, like I have that [drugs] again and a hundred dollars if you…
The next message is:
Please. I have more of that good [drugs] from the other day here and cash for you, but you need to bring the car right now. I had to pull strings to get it here. People running around for me and everything, plus I got go as well. You promised. I need you right now. This is a bit too much for me. Please, [Mr Q], why would you want this for me? [Drugs] and cash here for you. Just stop what or who you’re doing, and bring it back, please. I don’t want this stress any more. If, please, [Mr Q], I promised [X] you weren't taking our car anywhere without me. I promised him. Please.
Mr Q is a criminal and a drug user. I gather that he has since found his way into prison. But the mother was clearly in some form of relationship or at least friendship with him, and it is also clear that he stole her car.
But the much bigger concern for me is the mother's reference to “[drugs]” and to “good [drugs].” And her reference to “I got […] as well” could well be a reference to illicit drugs. She also talks about having cash. In short, the messages read as though the mother may have owed Mr Q some money for drugs.
I specifically asked the mother that in the witness box, and she vehemently denied it. I make no finding on that topic, but the relevant point is that the mother’s messages, that she had cash and illicit drugs, were clearly an inducement to Mr Q to get him to bring the car back. Such an inducement would not have been offered if the mother did not think it might have got the desired result. Her reference to having more of that good drug “from the other day” is also rather damning. And indeed, although the mother had apparently stopped taking illicit drugs at the end of 2020, she clearly had some sort of relapse with Mr Q.
In any event, it is a serious concern that the mother was messaging Mr Q in this respect. Mr Q appears to have been a violent man, and the mother appears to have been using drugs with him in some way.
Unsurprisingly, the DCJ were notified about this event, probably by the father, and they screened the matter in as being a risk of harm for X, because of Mr Q. To be clear, the mother also was the victim of other threats from Mr Q’s girlfriend, who threatened to burn the mother’s house down. And it seems to me that Mr Q, in general, was a very undesirable and dangerous character for the mother to have gotten herself caught up with. Like the father, he was a violent man.
After obtaining an AVO to protect herself from Mr Q, the mother subsequently re-partnered with one Mr R.
There is some question mark about Mr R and whether he was violent, because in late 2021, the father instituted the proceedings seeking that the child live with him. And it is apparent that in the leadup to doing so, that he made a complaint to the Department about the mother and Mr R. He alleged that both of them were using illicit drugs; that drug users were attending the home. It is impossible to know whether the father was simply being strategic or whether there was a basis for what he was saying. But the fact that the complaint came from him, rather than from some independent third party such as a neighbour, gives it much less weight in my view. The father clearly had a motive to try to paint the mother in the worst light possible.
The DCJ undertook a further risk assessment, and they found that the mother was more than adequately meeting X’s needs, that the maternal family remained supportive, that X’s daycare had not noted any concerns. The mother did admit that she continued to use illicit substances. She continued to be resistant to urine testing for the reasons that have been referred to previously. Importantly, she said there had been a massive improvement in her well-being, now that the father was out of her life, and she considered that when they were in a relationship he had been “gaslighting her”.
The mother was attempting to rebuild her life as best she could with the significant support and practical assistance of the maternal grandparents. Ultimately, the Department considered that there remained a high risk of neglect and a high risk of abuse of X, but they did not actively intervene in the matter, and as I have indicated, their file seems to have simply been closed.
In the course of these proceedings, consent orders were made on 16 November 2021, which required the parents to undertake hair strand tests within forty-eight (48) hours of a request by the ICL, and upon receiving a grant of legal aid. It would be fair to say that the father has complied with drug testing requests, which have been clean. Save for one hair strand test on in early 2022, which was clean, the mother has not otherwise complied with requests for hair strand testing. Nor has she undertaken urine testing for that matter.
In late 2021, another concerning incident occurred with the mother, when she was pulled over by Police in the early hours of the morning. She was observed at about 12.05 am to be driving a motor vehicle parked in a particular location. The vehicle was observed to be stationary for a short time, before driving off through a roundabout and into another location.
She was stopped for a random breath test, which produced a negative result. She produced her licence to Police.
Police were concerned that they had some ‘intelligence’ in relation to possible drug activity on the mother’s part. The mother appeared nervous. She gave differing versions of events as to what she was doing. She was somewhat erratic and argumentative, and not wanting to be searched. She was behaving, frankly, like somebody who had been caught in possession of illicit drugs, which in fact she had. She went to drive off a number of times, but Police would not let her do so. Ultimately, Police undertook a search, and they discovered that there was a large handbag on the front passenger seat, with a further smaller bag containing drug paraphernalia items.
Police also located two clear resealable plastic bags containing a white substance consistent with the appearance of illicit drugs. They cautioned the mother and she was charged with the possession of drugs.
There was some uncertainty in relation to this particular matter, as to whether it was illicit substances or illicit drugs. The mother is adamant that it was illicit drugs, although if that was the case, one wonders why there were drug items in the bag.
The mother had apparently told the Family Report writer that it was illicit drugs that she had been in possession of, although she denied saying that. And in the witness box the Family Report writer was unable to confirm whether the mother had said it was illicit substances or illicit drugs.
The mother told me that illicit drugs and illicit substances look the same, and I have no other evidence on this point, nor can I take judicial notice in any other way that might assist me. It suffices to say that the drugs looked like illicit drugs. There were drug taking items in the bag, but the drugs could have been illicit substances.
On balance, it is more likely the drugs were illicit drugs, but it probably makes not a lot of difference. The mother said that she was going to use the drugs that were in her possession, so she was at least honest about that.
The mother tried to tell me that the items in her car related to some jewellery she had been selling. I do not believe her for a moment about that. The fact is that the mother was caught up in drugs.
It should be noted, however, that X was not in the mother’s care on that date. He was with the maternal grandparents. Now this is no excuse, but it is a relevant matter.
In the course of these proceedings, the father undertook a ‘Taking Responsibility’ course, which ran for around eighteen sessions. He also did a subsequent course described as ‘Maintaining Responsibility’. He also completed a ‘Parenting After Separation’ course, as well as providing clean drug screens.
As I have indicated, the mother did not comply with drug screening requests, and she does frankly admit that she would have turned up a positive for illicit substances had she undertaken such tests.
In late 2022, the mother found herself in some difficulty with her medical practice, when her GP effectively ‘dropped her’ as a patient. This followed their discovery that a letter had apparently been fraudulently generated on their letterhead, and submitted to S Organisation to make a money claim for natural disaster relief. The claim was made in the mother’s name.
The mother immediately and vigorously objected, telling them that they were wrong and saying she had been ‘hacked’ by somebody - it seems Mr Q. She absolutely and adamantly denied that she had sent the letter to S Organisation, and her position is that it was effectively a ‘setup’. Having said that, she also told the GP that she had undertaken “numerous drug screens” – and that was simply untrue.
I have reservations about what happened on this particular occasion, but I am not able to make any specific finding. It is nonetheless a troubling event.
By early 2023, the mother had separated from Mr R. Curiously, someone made a complaint to the DCJ that Mr R had also been violent to the mother in that he had apparently threatened to harm her with a weapon. Despite there being some detail as to the nature of the alleged threat, the mother said that it was all untrue, and it never happened. In any event she does accept that Mr R, who had been staying at her home, ended up using drugs, and she effectively kicked him out and thus ended that relationship.
The mother was single at the time the matter came on for the hearing.
THE LAW
These are parenting proceedings and the court is obviously obliged to make orders that are in the best interests of X: section 60CA.
I don’t propose to read out section 60CC of the Act, but I will simply note here, that the mandatory best interest considerations are prescribed in section 60CC(2) of the Act, as explained in section 60CC(2A), and I will simply direct that a copy of those subsections be included in these reasons when they are reduced to written form, as they will be on a later date once I have a transcript from today:
Section 60CC How a court determines what is in a child’s best interests
…
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)       the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
Section 68B empowers the court to make injunctions that are necessary, or “appropriate” rather, for the personal protection of a child or a parent.
Section 61B defines parental responsibility, which I will have included in these reasons:
Section 61B Meaning of parental responsibility
In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61DA of the Act provides that there is a presumption that an order for equal shared parental responsibility would be in a child’s best interest. This is a rebuttable presumption which arises upon the making of parenting orders by a court. And of course, if the court makes an order for equal shared parental responsibility, then the court is obliged to follow the statutory pathway set out in section 65DAA of the Act.
Parental responsibility is a somewhat arid issue in this case in the sense that the father no longer seeks an order in his favour. Quite wisely, he abandoned any application for equal shared parental responsibility. His position is that if the mother does not pose an unacceptable risk, she should have parental responsibility, and if she does pose an unacceptable risk then the maternal grandmother should have parental responsibility.
BEST INTERESTS FINDINGS
I turn then to the specific best interest findings that I am obliged to make, and ultimately, which are determinative of the outcome in this case. I begin with section 60CC(2), the primary considerations.
It is quite apparent that X’s primary attachment is to the mother, that she has been his primary carer for his whole life, and that X benefits from having a meaningful relationship with her. The mother is strongly supported by the maternal grandparents and by her sister. It is, as I have indicated, something of a team effort. The child clearly benefits from that meaningful relationship. I have no doubt he loves his mother dearly, as she does him, and I have no doubt that the mother is doing the best she can to be an active and involved parent in X’s life.
There is no doubt that the mother’s meaningful relationship with X will continue regardless of whatever orders the court makes. I reiterate that the maternal grandparents do not themselves seek to have primary care of X. They very much take the position that they are a ‘backstop’ if needed.
In relation to the father, the question is much more complicated. The fact of the matter is that X does not have a meaningful relationship with him at this time. X has only known his father when he has been a drug addict and when he and the mother, that is the father and the mother, were in a violent relationship to which X was exposed and distressed by it.
The question in the father’s case is whether it is in X’s best interests, not so much to maintain a meaningful relationship, because there isn’t one at present, but to create a meaningful relationship.
The Family Report writer said that if a relationship is to be created with the father, then now is the time. It should not be further delayed.
There are obvious benefits in the father having a relationship with X, in the sense that he would give X a sense of identity. He represents the other half of X’s biological heritage, and he is also a gateway to X’s half-siblings, G and H, as well as to other members of the extended paternal family. For instance the paternal grandmother, amongst others.
If X does not have any opportunity for a relationship with the father, that will be a loss for him. It is a significant matter for a child not to have a relationship with a parent.
While risk factors are raised concerning both the father and the mother, it is probably convenient to begin by looking at the risk factors concerning the father first. And in this respect I am turning to section 60CC(2)(b) and section 60CC(2A).
The first issue of risk in relation to the father is the issue of his past drug abuse. It is quite clear that he was using drugs himself from his teenage years. His past drug use is very serious. He introduced the mother to illicit drugs, which is a particularly damaging and dangerous drug.
Having said these things, the father has done, as I have indicated, a remarkable thing in turning around his drug use. I accept that he has been able to rid himself of illicit drugs. There may potentially be some risk of relapse in the future. This is inevitable for someone who has had access to such drugs, but I do not consider such risks to be unacceptable or not able to be managed.
The much greater risk, in terms of the father, is the family violence that he perpetrated against the mother. I have already set out at length that his family violence was at a very high level towards her, coupled with his breaching of AVOs.
Now, it is true that the father has done some things to address his demons, as it were. I accept that he has undertaken the ‘Taking Responsibility’ and the ‘Maintaining Responsibility’ courses. He has also done meditation courses, as well as engaging in self-help and mental well-being programs. He has also quit illicit drugs, which are an aggravating factor in this respect.
Having said these things, I do not consider that the father has, by any means, accepted full responsibility for his past violent actions. In my view, he is still unable and unwilling to take full responsibility for what he has in fact done.

His trial affidavit was very unimpressive in this respect, and I specifically refer to paragraphs 23, 24, 31, 92 and 110 thereof. The father minimises his family violence in his affidavit material. Apart from some limited admissions that he makes - principally about yelling at the mother - as a general statement his position is one of broad denials.
He told the Family Report writer that he used to yell at the mother and that he would occasionally knock her down, but without meaning to. He justified his behaviour in the context of ongoing drug addiction. He accepted that the mother and X would have been scared of his behaviour, but denied that they would have been fearful because of any other behaviour apart from the yelling.
The father did a lot more than yell at the mother.
He was physically violent. He was sexually violent. And the yelling, I should add, was at such a level that the mother would be locking herself in the bedroom with X.
The father, in the opinion of the Family Report writer, continued to see himself as something of a victim in this situation. He was broadly denying his family violence, which she thought potentially indicated a lack of responsibility, and a minimisation of harm. I respectfully agree. She was concerned that he blamed drugs for everything he had done, as well as externalising his family violence by reference to the mother’s mental health: see particularly paragraph 93 of the Family Report, where the Court Child Expert observed that his lack of acceptance of responsibility and minimisation created a future risk of family violence for X. I agree.
The Family Report writer explored what the father had learned from the various courses he had done, but his answers were broadly superficial. And in any event, having regard to the limited admissions he makes and to the nature of the evidence set out in his affidavit, as well as what he said in the witness box, I do not consider that he comes close to taking full responsibility.
‘Taking Responsibility’ is the most serious and intensive course that exists for perpetrators of family violence. And the Family Report writer said that if the father has not obtained a full understanding of his own behaviours by this stage, then the next step would be for him to undertake one-on-one counselling with a psychologist. He needs to stop simply blaming the drugs for all of his behaviours.
Overall, the father’s past history of family violence is disturbing, and it runs deeper than just illicit drugs. Illicit drugs is, with respect, a convenient way for the father to minimise and excuse his own behaviours. I don’t cavil with the proposition that illicit drugs can make people behave in irrational and dangerous ways, but equally, the father cannot simply blame illicit drugs for everything that he has done. There are some genuinely disturbing aspects of the father's behaviour, as set out in the reasons that I have given. The concern that I have is that, if the father still fails to take responsibility for the full extent of his family violence, then he demonstrates an inability or an unwillingness to fully ‘own’ what he has done, and to be able to make amends in the future, and to do better, and to protect X from such risks.
Such risks are multi-faceted. It’s not just physical harm that might befall X, or witnessing some future violent event. It can be more subtle things, such as a coercive, domineering or perhaps misogynistic approach to women and to relationships, which X might then pick up on. These things are difficult to balance and to weigh up.
To highlight the point about illicit drugs that I made a moment ago, while the father seems to blame his family violence on his drugs use, it was noteworthy that, when he was asked questions by the ICL’s counsel, he accepted that he behaved in a manic or out-of-control way when under the influence of illicit drugs, and that there may be events that he forgot. He of course excludes the sexual assaults, which I suspect he will maintain he is innocent of to the grave.
The point is, though, that the father was willing to accept that he may have done more things than he admitted to, but without being willing in any genuine way to accept responsibility. He said it was very hard to confront what he had done. I do not consider that he is fully willing to do so. He has made some progress, to be sure, and his quitting of drugs is a definite significant step, but it is not a complete answer.
I am left with the disquieting sense that if the father was to spend time with X, that it would need to be supervised professionally for the foreseeable future and that the father’s past history of family violence and his inability or unwillingness to accept full responsibility for what he has done, is such that he would pose a long-term risk of emotional harm to X, at least at this stage.
In short, the father’s drug use is not a barrier to the father having a relationship with X. The father’s family violence is a barrier and a significantly limiting factor, at least at this time.
Turning to the mother, there are risks in the mother’s care that are undeniable.
In terms of her mental health, she clearly has had long-standing mental health issues and so much is uncontroversial. She says that they are being adequately and appropriately managed, and that that she has undertaken various mental health plans over the years. And I accept that from her perspective, she considers that she is properly managing her condition. However, it is something which needs constant vigilance on her part.
The fact is that she takes antidepressant and anxiety medications . She takes an anti-psychotic. She needs to continue to manage her mental health appropriately and properly, and in a proactive way.
Her drug use is a concern and it is an interrelated issue. The fact of the matter is that, unlike the father, the mother has not produced the sorts of clear test results that would have given the court comfort to take the issue off the table. The drug issue remains ‘live’. The best the mother can point to is a hair strand test from two years ago, which was clean, but on her own admission she has continued to use illicit substances in the meantime on about a monthly basis. And although she places the child with the maternal grandparents while using drugs, this is obviously a less ideal situation than not using drugs at all.
I should say, as an aside, that in the lead-up to the hearing, the mother decided to go and undertake a Drugs & Alcohol ‘peace of mind hair strand test’, but the results for that test were not even available at the hearing.
The Family Report writer said that the concern she had about illicit substances was that the mother’s use could escalate. And to be fair, the mother has been using illicit substances since she was just sixteen years old. It is a long-term issue for her.
I also have concerns about the mother being pulled over by Police in late 2021. This is the last evidence of the mother having any involvement in, if I might call them, ‘heavy’ drugs as such, but it is a serious matter and not something which the court can simply put to one side.
Drug use is problematic for a number of reasons:
·Obviously, there is the mental state of the parent in the lead-up to using drugs, when they might be craving or otherwise ‘out of sorts’ in an emotional sense and unavailable to their child;
·There is the impact of being under the drugs themselves, which in turn make a parent unavailable;
·Then there is the after-effect of drugs, when a parent might be drowsy, hung over or otherwise again simply unavailable.
I am troubled that the mother seems to have a somewhat simplistic view of drug use; that simply placing the child with the maternal grandparents is a complete answer. Placing the child with them is certainly helpful, and she deserves credit for that, but far better would be for her to address her drug addiction, certainly in relation to illicit substances, which is clearly a longstanding issue.
On the bright side, the mother does not drink alcohol.
The other issue relating to the mother’s care was her choice of violent partners. And it is true, sadly, that she is a person who has had a history of violent relationships. I have already referred to the father’s violence, and I won’t repeat myself about him. But it is also clear that Mr Q, as I’ve indicated, was violent. And it may be that Mr R was violent as well, although the evidence about this, as I indicate, is somewhat unclear.
The Family Report writer was concerned about the mother choosing violent partners and about getting into violent relationships. So am I. Notably, the mother was unwilling to listen to suggestions about obtaining therapy, so that she could better educate herself about the types of men or relationships to avoid, and she even went as far as to seem affronted and insulted by any such suggestions: see paragraphs 21 and 42 of the Family Report.
Notably however, the mother’s own family were supportive of such recommendations.
The problem for the mother is that having a violent partner puts X squarely in harm’s way. It is that simple. Asked about whether she would undertake some therapy in order to better educate herself, the mother said “I'm not able to consider relationships at this time.” Asked about the need to protect X, she said “I will wait until I’m thinking about dating someone.” Common sense tells me that if the mother wanted to do such a course, the best time is now, when she is not in a relationship, when she has a ‘clear head’ in that sense and is not in the throes of passion, excitement or ecstasy or love, that usually accompany the beginning of relationships. And that’s hardly the best time to go off to do a course when a person’s already in that state of mind. In other words, the mother is just deflecting. She should think long and hard about this, because there are good courses that are available, and it may well benefit her, as well as X.
When I weigh up all of the risks in the mother’s care, they are significant.
The strongest things going for the mother are that the Department of Communities and Justice have never removed the child from her care; that he has always lived with her; that she has a measure of awareness and insight in relation to her mental health condition; and that she has had the good sense to at least place the child with the maternal grandparents when she is going to use drugs. X is also visible in the community to some extent, especially when he attends kindergarten, although the Family Report writer said that his visibility at school was not a complete answer to any risks that may arise from a parent using drugs.
In my view, far and away the strongest protective factor for the mother is the involvement of the maternal grandparents and as well, I should say, the mother’s sister.
The maternal grandparents impressed me immensely. When I had the maternal grandfather in the witness box, I challenged him squarely as to how he would feel about X being taken into the care of the Department of Communities and Justice if the mother ‘fell through the cracks’ as it were. His answer was clear and unequivocal that he would die before he let that happen. I believe him. He was a very impressive witness.
Both of the grandparents, while they might wish perhaps to downplay to some extent the mother’s drug use in their affidavit material, have their ‘eyes very wide open’ when it comes to their daughter. They have been there to support her. They will continue to be there to support her into the future. They and the mother’s sister Ms F have been the necessary rock and the necessary support in the mother’s life and in X’s life.
The mother’s evidence in this case is that she feels vastly better in herself now that the father is not in her life anymore. She has found life easier to manage, but it has still been a challenge for her.
I have agonised over whether the mother poses an unacceptable risk of harm as primary carer. And I am also mindful of the fact that a change of primary carer in favour of the maternal grandparents is something they don’t particularly want. And that would also cause a degree of disruption for X. After all, while he has connections with the maternal grandparents, the fact is that the mother has been his primary carer. The Family Report writer was clear in saying that that primary attachment should not be disrupted unless the court has no other choice by reason of safety issues.
The orders proposed by the maternal grandparents themselves are very liberal and would leave the maternal grandparents with enormous discretion to place the child with the mother for lengthy periods of time. There is much force in the submission made by Mr Guyder that if the court considered that the form of orders proposed by the maternal grandparents was sufficiently protective, then maybe the court should not be considering moving the child out of the mother’s care in the first place.
After much consideration and agonising over the evidence before me, I have come to the view that, with appropriate restraints, appropriate safeguards, this child should remain living with the mother, and I intend to so order. With the restraints I propose to include in the orders, I do not consider that the child would be at unacceptable risk, but I make clear that these orders and these reasons will be provided to the Department of Communities and Justice, and that it will be necessary for the mother and for her parents to continue to exercise vigilance, because the greatest risk for the mother is of things ‘falling off the rails quickly’. I do not consider X to be at unacceptable risk, but there is a level of risk, and it is the injunctions I propose to make, and the conditions I propose to order, that render such a risk acceptable. I am not going to be moving this boy out of his mother’s care, at least not at this time.
What then should I do about the father? This becomes the critical question in the case.
X is too young to have a view, and I need not address that issue any further.
I have already addressed the nature of his relationships with the maternal and the paternal family, and the fact that he doesn’t really have a meaningful relationship with the father at the moment.
The father has played no real role in X’s decision-making for some years now, but I don’t blame him for that. He has tried to play a role. He has brought these proceedings. At this point, he has not had the opportunity to play a role. It is not a matter of unwillingness, so much as a lack of opportunity for him to do so.
The father pays child support that could be best described as mediocre, some $36 a fortnight, which would barely ‘touch the sides’ in terms of this child’s cost of living. However, that is the amount that the Child Support Agency has assessed in accordance with the legislative scheme, and I have no credible evidence to suggest that it is an inappropriate or wrong amount. I simply note that it would not come close to touching the sides in terms of the child’s costs.
The question of a change in circumstances and the impact on X is a significant question. He only remembers his father if he does at all, as a violent, drug-using man. The Family Report writer said that bringing them back into contact could be emotionally de-stabilising for X and I agree with that: see particularly paragraph 74 of the Family Report. The Family Report writer had genuine concerns about that issue.
In this context, it is appropriate, then, to turn to the impact that the making of an order for time in the father’s favour would have upon the mother. This was a matter which was the subject of significant evidence, as well as submissions.
By way of background, the mother’s capacity to parent X is ‘stretched’. I don’t say that to be unkind or disrespectful of her. The fact is, that her capacity to care for him appropriately requires significant support from the maternal grandparents. She has no ‘spare’ capacity up her sleeve, as it were, to be able to handle any more stress and difficulty in her life than is absolutely necessary. As I have said earlier, ‘it takes a village’ to raise this little boy in terms of the mother’s household.
I am greatly troubled as to what the impact would be on the mother if she had to facilitate a relationship between X and the father. It took her a lot of courage and a lot of strength to be able to go to the Police to apply for an AVO on her behalf. It probably also took some prompting from the Department of Communities and Justice.
The mother remains highly frightened of having communication or contact with the father. She is highly anxious and stressed about having to communicate with him and having him involved in X’s life. I have already touched upon the security alarms and the cameras that the mother has at the home and I add to that, that she also has the support of her neighbours.
The maternal grandparents and the maternal aunt are themselves all anxious about the prospect of the father returning to X’s life and the impact this may have on the mother. The maternal grandparents know the mother probably better than anyone else. Their concerns about what the impact will be on her mental health are very real, very genuine and entirely reasonable and evidence-based.
In the Child Impact report, the Court Child Expert emphasised that, given the mother’s genuine and long-term history of trauma, the mother’s psychological wellbeing and the impact of the father spending time with X on the mother’s parenting capacity needed to be considered. The Family Report noted that the mother was unable to contemplate a relationship between the father and X, and that even supervision of that time would provide little support or comfort for her anxiety and worry; and there was a concern that the mother’s mental health may de-stabilise if the child spent regular time with the father.
I quote from paragraph 95 of the Family Report:
In this matter, the characteristics of the mother are important in the assessment of family violence. Subpoenaed material and interview with the mother revealed she appeared fearful of both New South Wales Police and Child Protection Services, and at times struggled to engage with New South Wales Police and Child Protection Services with respect to reporting the father at her home, due to a belief that DCJ would remove her child from her care if she continued engaging with the father. Furthermore, it is acknowledged that the mother was a vulnerable person prior to the relationship with the father commencing, due to her historical mental health history from repeated trauma. And at times she has elected not to proceed with Police or court intervention due to the potential toll upon her mental health. In this matter, the Court Child Expert regards the mother’s reported mental health deterioration during and post the relationship as an indicator of the stress and trauma she was experiencing as a victim of family violence. Given this pre-existing vulnerability and trauma diagnosis, there is concern that if the mother is required to engage with the father on a regular basis, a perpetrator of family violence, this will de-stabilise her mental health and consequently, decrease her parenting capacity.
In the witness box the Family Report writer confirmed that it would be traumatic for the mother for the court to make orders for the father to spend time with X if the mother genuinely believes the father sexually assaulted her. I have found that he did so – but as a postscript, even if I could not so find, I would certainly have found that the mother honestly and reasonably believed that he did.
An order for time would have a negative impact on the mother’s parenting capacity, whether she was primary carer or whether she was a subsidiary carer assisting the maternal grandparents to look after X. It would have a negative impact on X for the mother’s mental health to be de-stabilised in this way. The father himself acknowledged to the Family Report writer (see paragraph 70) that the mother may find it difficult to engage in communication with him, given their past history, including issues relating to past family violence.

I refer in this respect to Keane & Keane [2021] FamCAFC 1, being a decision of what was then the Full Court of the Family Court of Australia. I do not propose to go through it in detail, but I will, in the course of the reasons, include some relevant extracts from that decision.
In this particular case, the mother has a genuine, deep-seated anxiety about the father being involved with X. Her anxiety is genuine, it is real, and it reflects her lived experience. In my view, to force the mother to have to promote a relationship between X and the father, which relationship would by reason of the matters to which I have referred earlier, be inherently circumscribed in any event, at least for the foreseeable future, would be positively disastrous for the mother’s mental health and her capacity to parent.
As I have indicated, the mother has no ‘spare’ capacity up her sleeve. Few things could be worse for X than his mother de-stabilising, decompensating and him then being placed at risk of neglect in her care. The mother’s anxieties about the father are rational, and it should also be said that they are overlaid on a long history of mental health fragility. In some respects, by reference to the tortious principles sometimes seen in personal injury cases, the mother is something of an ‘eggshell skull’ case in that sense.
I consider that if the mother was obliged to promote any form of relationship between the father and X, including supervised time, that she would not be able to cope, that the impact on her parenting capacity would be disastrous, that the follow-on effects for X would be equally disastrous. Such an order would outweigh any benefit that might otherwise attach to the making of such an order.
Having regard to these findings and to the other matters to which I have referred, it seems an arid exercise to recite other section 60CC findings and matters.
I have already dealt with family violence at great length, as well as the related impact on the mother. I should record, for completeness, that there was an AVO in place protecting the mother from the father at the time the hearing was conducted last month, but the AVO has, in fact, literally just expired in the last week or so. So there is currently no AVO protecting the mother from the father.
CONCLUSION
Having regard to the findings which I have made, as set out today, I am of the view that it would be in the best interests of the child to make these orders.
I will order that all prior parenting orders be discharged so that the parties start with a clean slate.
There is no basis for me to make an order for parental responsibility in favour of the father.
I will order that the mother and the maternal grandparents (or either of them) have equal shared parental responsibility for X. The reason I share parental responsibility between the mother and the maternal grandparents is simply because I consider that it is an additional protective factor for X.
I do not consider that an order for equal shared parental responsibility will drive a wedge between the mother and the maternal grandparents. Rather it will give the mother the benefit of the wisdom and experience that the maternal grandparents have and it will also, in a legal sense, strengthen the position of the maternal grandparents should any future issue arise. It is a protective order, it is an order I consider will work in the best interests of X.
The third order will be that X live with the mother.
The fourth order, for these reasons, will be that X have no time and no communication with the father.
The next order will be a section 68B restraint against the father.
The next order will be that the mother and maternal grandparents are at liberty to provide a copy of these orders to a school attended by X and to any other person or organisation referred to in the preceding order.
I am going to include a section 68B restraint against the mother and I am going to attach a copy of section 4AB of the Family Law Act so that the mother can see what the definition of ‘family violence’ is and how broad it is.
Order 8 is very much a safeguard order. I am giving the maternal grandparents a ‘lever they can pull’. This is in X’s best interests, it is a condition of me leaving X in the mother’s care. They should not and will not pull that lever unless they think they have to, I am confident about that. In relation to order 8(c)(iv) in particular, this is simply an attempt by me to shape what it is the mother has to notify the grandparents of, because some traffic matters might not be criminal matters but are very serious and reflect on X - for example if the mother was drink driving with X in the car they should be told about that. So that is purely a matter of drafting, there is no magic in the words that I have used. I have had regard to what has been proposed by each of the parties to their various proposed orders.
The orders will authorise the child’s General Practitioner to provide to the maternal grandparents, at their expense, any and all medical information they may request in respect of the child as thought the maternal grandparents were themselves parents of the child. The mother is to ensure that the child’s treating General Practitioner is provided with a copy of these Orders and the mother is to notify the Maternal Grandparents in event she changes the child’s General Practitioner. Although in this respect I should of course point out that they would have equal shared responsibility so it’s a decision they should make jointly.
In relation to order 10, if the school have a concern about X in any way appearing neglected or dishevelled or having some problem, they can let the maternal grandparents know and they don’t need to be worried about breaching confidentiality.
The next order will be the order proposed by the father in relation to the Birth Certificate, this is the order set out in paragraph 34 of the father’s proposed orders. It is appropriate and necessary that the father is recorded as X’s biological father. Orders have been made in this respect earlier but have never been able to be implemented as these parties could not get their paperwork sorted out; it needs to be sorted out.
The next order will be that the mother’s at liberty to obtain a passport for X without the father’s consent.
The next order will be that the mother and the maternal grandparents may travel overseas with X without the father’s consent being required.
And the next order is that these reasons are to be taken out in writing and provided to the parties. That may take some weeks, I have been talking now for about two hours and twenty minutes, so the reasons will be quite lengthy and there are other parts that will be inserted. As I have indicated, it could be a few weeks before you get these in written form.
I will order that the ICL is to provide a copy of these reasons and orders to the DCJ and provide a copy of the orders to the Commissioner of Police NSW.
For these reasons I will make orders in these terms.

I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 15 March 2024

File number(s):	NCC 3279 of 2021
Judgment of:	JUDGE BETTS
Date of judgment:	15 March 2024
Catchwords:	FAMILY LAW – Parenting – one child, aged 6 – where the parents were in a drug-fuelled and violent relationship – where the father has not spent any time with the child since late 2020 – where the maternal grandparents have provided a great deal of care and support to the child – where the father seeks supervised time graduating to substantial and significant time – where the mother seeks that the father has no time and no communication with the child and that the child lives with her – where the maternal grandparents seek that the child live with the mother unless the Court considers she would pose an unacceptable risk of harm, in which case they would then seek the child live with them – where the Court considers that the child should live with the mother and share parental responsibility with the maternal grandparents – where the Court considers that the father should spend no time and no communication with the child – best interests of the child.
Legislation:	Family Law Act1975 (Cth), Pt VII
Cases cited:	Keane & Keane [2021] FamCAFC 1
Division:	Division 2 Family Law
Number of paragraphs:	244
Date of last submission/s:	21 February 2024
Date of hearing:	19, 20 and 21 February 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Brady
Solicitors for the Applicant:	Toronto Legal
Counsel for the First Respondent:	Mr Guyder
Solicitors for the First Respondent:	Harpers Legal
Counsel for the Second Respondents:	Mr Allen
Solicitors for the Second Respondents:	Grace Family Law Solicitors
Counsel for the Independent Children’s Lawyer:	Ms Beckett
Solicitors for the Independent Children’s Lawyer:	Jennifer Blundell and Associates

NCC 3279 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KENEALLY Applicant
AND:	MS NEAVES First Respondent MR ROBERTS & MS ROBERTS Second Respondents
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	15 MARCH 2024