Lazzari & Lazzari - [2023] FedCFamC1F 286

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lazzari & Lazzari [2023] FedCFamC1F 286

File number(s): PAC 3217 of 2019

Judgment of: HANNAM J

Date of judgment: 18 April 2023

Catchwords: FAMILY LAW – FINAL PARENTING – Where the mother contends that the father poses a significant risk of harm to the children arising from his drug use and associated sexual activity – Where the ICL agrees with the contentions of the mother – Where the father’s conduct was deceptive and dishonest – Where the father falsified his drug test results – Where it is contended that the father’s capacity to meet the children’s needs is compromised – Where the father asserts that there is no risk – Whether emotional abuse amounts to family violence – Where orders are made for the children to live with the mother – Where orders are made for no contact with the father – Orders made as sought by the mother – Where leave is granted to the father to apply to vary the parenting arrangements if certain conditions are met

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(3)

Cases cited:
Isles & Nelissen [2022] FedFamC1A 97

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark(2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Division: Division 1 First Instance

Number of paragraphs: 293

Date of last submission/s: 20 December 2022

Date of hearing: 5 – 7 September 2022; 28 October 2022

Place: Parramatta

Counsel for the Applicant: Mr Zmood

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Barkus Doolan Winning

Counsel for the Independent Children's Lawyer: Mr Maddox

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

PAC 3217 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LAZZARI

Applicant

AND:
MS LAZZARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

18 April 2023

THE COURT NOTES:
A.On 22 August 2022 orders were made with the consent of the parties that the mother Ms Lazzari have sole parental responsibility for each of the children X born 2015 and Y born 2017 and Z born 2017 ("the children") and that the children live with the mother.

THE COURT ORDERS THAT:
1.The children are to have no contact with the father except as provided for in these orders.
2.The father is permitted to send cards and/or letters and/or gifts to the mother's residence on the children's birthdays and Christmas. The mother is to read the cards and/or letters and open the presents in the first instance to ensure that they are appropriate prior to providing them to the children, and the mother alone is to determine whether they are appropriate.
3.Leave is granted to the father to make an application to vary the orders in respect to the children's time with the father, subject to the father meeting the following pre-conditions:
(a)The father is restrained from making an application to the Court for the children to spend time with him for a period of no less than 24 months from the date of these orders.
(b)The father must have completed at least eight supervised, chain of custody hair follicle tests on at least one occasion every 3 months in the 24 month period prior to any application being made by the father, to test for the full spectrum of illicit and prescribed drugs and alcohol, and the results of such testing must be negative for all drugs and alcohol.
(c)The father is to authorise and direct the laboratory to forward the results of such testing directly to the mother, and these Orders shall authorise the laboratory to forward such test results as soon as reasonably practicable at the request of the mother in order to obtain and verify the results of the father, and the mother is permitted to discuss the test results with the laboratory if and when required.
(d)The father is to provide to the mother a report from his treating psychologist and/or psychiatrist (“the therapist”) evidencing his engagement with the therapist and such report must confirm that the father has engaged with the therapist for at least 12 months or as otherwise recommended by the therapist and that the therapist has been provided with the Reasons for Judgment and final orders dated 18 April 2023, the hospital records, rehabilitation records and medical records of the father, and a statement from the father to the effect that he has previously falsified hair follicle drug test and urinalysis test results for the period from September 2019 to April 2022.

4.Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), the father is restrained by injunction from attending upon, approaching and/or removing the children from any of the following locations:
(a)The children's school/s;
(b)The mother's or the maternal grandparent's home; and
(c)The children's extra-curricular and/or sporting activities including the games and/or training; or
(d)Any other location where the children are located.

5.The father is restrained from contacting the mother, including by email, telephone and/or text message.
6.The mother is to send an email to the father on one occasion per calendar month providing an update regarding the children.
7.The father is restrained from posting photographs of the children on social media without the written consent of the mother.
8.Each party is to request that members of their family not post photographs of the children on social media without the consent of the mother.
9.Pursuant to Section 11(1)(b)(i) and Section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth), the children are each entitled to have an Australian travel document including but not limited to an Australian passport and to give effect to this Order, the mother is permitted to unilaterally complete, sign and lodge any application for the issue or renewal of the children's passports or any other document required to allow the children to travel outside of the Commonwealth of Australia.
10.For the purposes of Order 10, it is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for the children upon application of the mother alone.
11.Pursuant to Section 65Y of the Act, the mother is permitted to travel outside of the Commonwealth of Australia with the children without the knowledge and/or consent of the father.
12.Leave is granted to the father to provide his treating psychologist and/or psychiatrist with a copy of these Reasons for judgment.

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 the pseudonym Lazzari & Lazzari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

The parties ("the mother" and "the father" or “the parents” collectively) are engaged in a dispute relating to the future parenting of their three young children (“the children”) following the breakdown of their six year marriage.
The parents have agreed that the children are to live with the mother and that the mother should have sole parental responsibility for them. Orders to this effect were made with their consent at the commencement of the final hearing. For Reasons given ex-tempore, interim orders for the children to spend time with and communicate with the father were also suspended on the first day of the final hearing.
The first matter that I need to decide is whether it is proper and in the children’s best interests to make any orders for the children to spend time with the father and if it is, whether I should make the orders that he proposes.
It is the mother’s case that the father poses an unacceptable risk of harm to the children arising from serious impairments in his parenting capacity associated with his long history of illicit drug use and associated sexual behaviour and deceptive and dishonest conduct.
The mother in summary seeks orders that would see the current arrangement for the children continue. She proposes that the children spend no time and have no communication with the father other than through the father sending letters, cards and gifts for birthdays and at Christmas and that restraints be made upon the father approaching the children. The mother’s proposed orders leave open to the father the possibility that he may apply to the Court at any time after two years from the date of final orders to vary the orders to support the children’s relationship with him, provided that he complies with orders during that two year period for monitoring his drug use and receiving psychological treatment.
The father contends that he does not pose an unacceptable risk of harm to the children on any basis if orders are made for them to spend time with him. He specifically proposes that the children spend time with him initially supervised by paternal family members one weekday for a few hours after school and between 9am and 5pm on a weekend day, alternating between Saturday and Sunday. He proposes that after three months supervision be dispensed with and that the children’s time with him increase a little through the addition of a second weekday afternoon and then also include block periods of eight hours on nominated special days such as Father’s Day, Easter, Christmas and New Years and that such time be conditional upon him complying with monitoring for his drug use through hair follicle testing.
The Independent Children’s Lawyer (“the ICL”) proposes orders in similar terms to the mother that the father spend no time with or communicate with the children but that he be permitted to send cards, letters and gifts to them. The ICL also proposes that the father be granted leave to make a further parenting application “regarding the children” provided that he has complied with testing to monitor his drug use. Essentially, the ICL agrees with the mother’s central contention that the father currently poses an unacceptable risk of harm to the children for reasons identified by the mother and that the children should have an opportunity to have a relationship with the father through giving him an opportunity to make a further application to the Court after the issues are of concern in relation to the risk he poses have been addressed.
The question for me to determine is whether it is proper for orders to be made as sought by the mother, the father or the ICL having regard to the children’s best interests as the paramount consideration.
BACKGROUND
The father aged 42 and the mother aged 39 began living together in 2012. At that time the father had a child who was aged almost three (“the father’s other son”) from a previous relationship who was living with that child’s mother (“the father’s former partner”).
Although the mother was not always aware of the extent of the father’s drug use, it came to light in the proceedings that he has been a user of illicit drugs since the age of 17. On one occasion very early in their relationship the parents used an illicit substance together but the mother has not otherwise used any substances.
The parties married in 2013. A few months later the mother read a message on the father’s phone from an unknown number that suggested to her that he may have been having an extramarital affair. The parties sought relationship counselling as a result of this issue.
It is common ground that throughout the parties’ marriage the father engaged in sexual activities with people other than the mother. It is also not in dispute that the father’s sexual activity with other adults was associated with his misuse of a range of substances.
The father’s substance use has also included the misuse of prescription drugs and at times, alcohol. Although the father admits to substance misuse throughout the relationship and up until a few months prior to the final hearing, the extent of his drug use and the significance of this matter for the parenting of the children is one of the central issues in dispute between the parties to which I will return.
The mother also contends that the father behaved in an emotionally abusive manner towards her throughout the relationship and to some extent after separation and that this conduct amounts to family violence. While the father agrees with the mother in relation to some of his conduct I understand that he contends that none of his actions could be considered to constitute family violence. For this reason, it is a matter to which I will return.
The parties’ oldest child, a son (“the older child”) was born in 2015. The parties’ twin daughters (“the younger children”) were born two years later.
Although it was not known by the mother at the time, during the period that the children were infants (in 2016-2017) the father continued to misuse illicit substances. His substance misuse at that time occurred particularly in the context of engaging in sexual activity generally with people whose only relationship with him was through online sites and platforms that he frequented. On occasions the father engaged in extramarital sexual activity at the parents’ home while caring for the children when the mother was out.
In late 2018 the mother discovered illicit and prescription drugs in the father’s work bag that he had left on the bedroom floor and confronted him about the matter. The father’s response and his drug taking behaviour generally will be dealt with in greater depth later in these Reasons.
In early 2019 the mother underwent surgery and during her time in hospital the paternal grandparents and father cared for the children. Following her surgery there was a four month recovery period.
There is no dispute that from around early 2019 the parents were experiencing relationship difficulties. It is the mother’s case that the father was returning home from work between 9.30pm and 2am and was regularly absent from the family home for many hours. In mid-2019 she discovered that the father had an additional mobile phone on which he had established personal profiles on a number of dating sites and other websites on which individuals make connection with others to engage in sexual activity.
As a result of becoming aware of the contents of the father’s second mobile phone in mid-2019 the mother left the family home with the children. From this date for the ensuing two months, the children had telephone contact with the father on only two occasions facilitated by the mother and did not otherwise spend any time with him.
On 9 July 2019 the father commenced these proceedings seeking property settlement and parenting orders.
The father also obtained a report from his psychologist (“the father’s psychologist”) dated 5 August 2019 (“the psychologist’s first report”) in which the psychologist reported on seeing the father on four occasions for one hour on each occasion. In that report the psychologist opined that the father was then experiencing a depressive episode reactive to his marital breakdown and symptoms of anxiety in relation to not seeing his children. He had reported his engagement in recreational substance misuse, extramarital affairs and exploring new sexual interests which the psychologist then opined was related to the father’s low-esteem and significant insecurity stemming from his childhood. The psychologist noted that the father had not reported any signs of substance dependence and recommended that he attend ongoing therapy either weekly or fortnightly to address his identified psychological issues.
On 8 August 2019 orders were made with the consent of the parties (“the August 2019 orders”) which included the following:
·that the father vacate the former family home;
·that the father be restrained from consuming non-prescription or prescription drugs within 24 hours of the children spending time with him;
·that the father submit himself to hair testing every three months and weekly urinalysis to monitor his substance misuse; and
·that the father consult with a treating psychologist or psychiatrist for at least 12 months.
Orders with respect to the children’s time with the father were also made providing that this occur on two occasions each week. On the first eight occasions his time was to be supervised by a community supervision service and thereafter was to increase to three hours each Tuesday and four hours each Sunday and be supervised by paternal family members.
Between the August 2019 orders and 20 December 2019 the father purportedly complied with the orders for testing to monitor his drug use and provided documents to the mother that he represented were the results of those tests. These purported hair testing and urinalysis results were negative for all substances. The reports from the supervision service that supervised the children’s time with the father in August and September 2019 were positive in relation to the children’s interaction with the father at these contact events.
After eight weeks of professional supervision the children’s time with the father increased and was then supervised by paternal family members, in accordance with the August 2019 orders.
On 4 November 2019 the parties attended an intake event for the Child Responsive Program. A Memorandum to Court was released by the Family Consultant (as Court Child Experts were then known) on the same day in which recommendations were made given the stage of the proceedings and the children’s ages that the children spend time with the father during the daytime only.
In the same month, November 2019, the parties resolved their property dispute and reached agreement for final orders. The parties also reached agreement in relation to a further change in the interim arrangements for the children.
Orders made on 20 December 2019 (“the December 2019 orders”) provided for an increase in the children’s time with the father so that it occurred each Wednesday afternoon for three and a half hours after school and for an eight hour period on a weekend day alternating between a Saturday and Sunday. Pursuant to these orders, a paternal family member was required to be present for the majority of the children’s time with the father and the orders for this time were conditional on the father undertaking a hair follicle test every three months.
The father was also required under the August 2019 orders to continue the engagement with his psychologist or another clinical psychologist for a period of 12 months. Records of the psychologist indicate that the father attended upon her until 27 February 2020. He cancelled this appointment and two further appointments so the psychologist did not make any further appointments at that time. It is the mother’s case that the father’s evidence in relation to his engagement with his psychologist is deceptive and the issue of the father’s deceptive and dishonest conduct is another significant issue in the proceedings to which I will return.

According to the father’s trial affidavit he recommenced using illicit substances in late 2019 or early 2020. The mother was unaware that the father was misusing substances after late 2019 because at approximately three monthly intervals he provided the results of hair testing that he purported to have undertaken in accordance with the December 2019 orders. Purported results from January, April, July and October 2020 all indicated that he was negative for any drugs.
In early 2020 police were called by the father for the purposes of assisting him in having a person he had met online and who had stayed the previous night at his apartment removed from those premises.
In December 2020 the father made application for the children’s time with him to increase to two nights per fortnight for a period of about six months and thereafter increase to three nights per fortnight.
On 18 January 2021 orders were made with the consent of the parties for the appointment of an expert and an ICL and the requirement that the children’s time with the father be supervised was removed. It was the understanding of the mother, the ICL and the Court at the time that the results of the purported drug tests provided by the father over the previous 12 months accurately reflected that he had ceased his drug use during this period.
Although the requirement that the children’s time with the father be supervised was dispensed with in the making of the 18 January 2021 orders, the father remained bound by the earlier orders that he continue to undergo hair testing for the purposes of monitoring his illicit and prescription drug use each three months. Pursuant to this requirement the father provided the mother through his solicitors the results of two further purported tests said to have been undertaken in January and April 2021.
Records of the father’s psychologist indicate that after early 2020 the father did not see this psychologist again until early 2021 and in March 2021 he obtained a second report from her (“the psychologist’s second report”).
In this second report the father’s psychologist opined that the father’s history of drug use and sexual behaviour could be of concern regarding his capacity to care for his children if that were to continue but the father had adamantly denied using substances since the breakup of his marriage and his psychologist believed that he had participated in drug testing to prove that this was the case. It is also recorded in the psychologist’s second report that the father reported that his experimentation with sexual behaviours had always been in conjunction with illegal drug use and that without the illegal drug use he had not engaged in the associated sexual behaviours. On this basis the father’s psychologist opined that if such behaviours remain in the past then she had no concerns about the father’s capacity to care for his children.
It is also recorded in the psychologist’s second report that when asked about the break in sessions between February 2020 and February 2021 the father reported having discontinued as he was “not sure about the value of the sessions” and also acknowledged that he should have discussed this matter with his psychologist. The psychologist further records that the father reported to her that his entire psychologist’s file was subpoenaed in the course of the Family Court proceedings which had caused him significant distress. This matter together with the lack of confidentiality meant that the sessions were no longer a safe place for him and highly likely to have compromised therapy being useful for him.
Other documents produced on subpoena to which access was granted on 1 March 2021 included records of a sexual health centre that the father had attended (“the sexual health centre”). Two days after such access was granted the father contacted the sexual health centre requesting a change in a particular record from late 2019. A few weeks later the father made arrangements with the sexual health centre that his name be changed for the purposes of the centre’s records so that he could test (for sexually transmitted infections) anonymously in the future. The records indicate that he provided further identity details and started a new medical record at the centre under a new name and requested that the records under his correct name and the new name not be linked. As a result of changing his name for the purposes of testing and not advising the mother or ICL of the changed name at any time, accurate records from that centre were unable to be obtained.
From early 2021 the father’s former partner began experiencing difficulties co-parenting with the father in relation to his other son. The father’s former partner began receiving reports from her child (the father’s other son) about the father’s behaviour when that child was spending time with him. In early 2021 the father’s former partner collected her son from the father’s home early at the child’s request and she deposes to this child becoming anxious from about this time when he was due to spend time with the father. The father takes issue with the evidence of his former partner about the incidents in early 2021 and in relation to concerning things that this child reported in the course of counselling in 2022 about the father’s conduct, which will be revisited later in these Reasons.
The family attended upon the Court Appointed Expert for the purposes of her assessment on 11 May 2021.
In mid-2021 there was a further incident involving police and a person the father had met online. On this date the father’s car, house and car keys were stolen from his home after a person the father had met on an online platform had spent the night at the father’s home.
The expert’s report which was released at the end of June 2021 is a matter to which I will return. It suffices to say for the purposes of this background that when assessed in May 2021 the father presented as a person who was no longer abusing substances or engaging in his previous pattern of adult sexual activity. Based on the information provided and gathered during the assessment, the expert considered that it was in the children’s best interests to live with the mother, that consideration could be given to the parents having equal shared parental responsibility for the children and that a regime which provided for the children’s time with the father be implemented which could include overnights for the older child.
The expert recommended that if overnight time for all children were to occur, that this only proceed if there were strategies for the children’s safety in place. In this regard the expert identified that no visitors should be permitted to the father’s household during overnight time, that drug testing including hair follicle and urinalysis continue for six months from the start of overnight time and if negative drug test results were returned during this period that random urinalysis should continue for a further six months. The expert also considered it necessary for the father to re-engage with a mental health practitioner and that the focus of therapy include establishing and maintaining a drug free status for parenting and relapse prevention.
It is clear from the tenor of the report that the expert believed the father was drug free and that his sexual conduct issues were safely managed when he was assessed and opined that so long as these circumstances continued the children could safely spend time with him.
Following the release of the expert report, the father provided further test results from purported hair tests with negative results for drugs in August and November 2021 in relation to tests said to have been undertaken in July and October 2021 respectively.
The mother deposes to some difficulties she experienced in her interactions with the father about arrangements for the children’s time with him which the mother considered abusive. The father denies behaving in any abusive manner towards the mother and this a matter to which I will return.
Although the parties attended a further mediation in October 2021 they were unable to reach an agreement in relation to further interim orders for the children’s time with the father.
As the father’s pending interim parenting application was at this stage still undetermined, it was listed for a hearing before a Senior Judicial Registrar on 23 December 2021. On this date orders were made (“the December 2021 orders”) that were generally in line with the recommendation of the expert including that the children commence spending one night with the father per month from 3 January 2022 which was to increase to one overnight per fortnight from July 2022.
The December 2021 orders also required that the father engage with his psychologist. The father deposes to making efforts to re-engage with his psychologist in January 2022 but that his psychologist indicated that she was booked out until mid-2022 though he could be placed on a waiting list.
On 23 February 2022 directions were made to ready the proceedings for final hearing including that each of the parties file a consolidated trial affidavit by 4 May 2022. The proceedings were also fixed for a case management hearing to check the parties’ compliance with trial directions on 11 May 2022.
The father continued to purport that he had undertaken hair follicle tests in accordance with the December 2021 orders and produced certificates to the mother indicating a negative result to such a test said to have been undertaken on 11 February 2022. The mother was however concerned about some of the father’s conduct at around this time and as he had on numerous occasions failed to avail himself of orders for the children’s time with him due to claimed health difficulties. This raised concern for the mother about the father’s compliance with court orders and his general reliability with respect to the children.
There were also at this time orders requiring that the father undergo urinalysis and provide the mother with the results of that testing. On 29 April 2022 the father’s solicitor provided to the mother’ solicitor results of urinalysis undertaken on 22 April 2022 which indicated the presence of an adulterant. On 2 May 2022 the mother’s solicitor sent a letter to the father’s solicitor on the mother’s instructions advising of her concerns regarding the veracity of this test.
At this time when the mother was questioning the veracity of the most recent urinalysis test she filed her trial affidavit in the proceedings in accordance with trial directions. The father did not file his affidavit as directed.
The father’s solicitor did not respond to the letter from the mother’s solicitor of 2 May 2022 but on 9 May 2022 advised that the father would not be spending time with the children as provided for under the 23 December 2021 orders. The father provided no explanation for this decision and gave no indication of how long he proposed that the children spend no time with him.
In response to the letter from the father’s solicitors on 9 May the mother’s solicitors requested by letter of the same date that the father clarify his position in the proceedings noting that a case management hearing was listed for 11 May 2022 and that the father had not filed his affidavit evidence in accordance with trial directions.
On 10 May 2022 the mother filed subpoenas to the various pathology laboratories which the father claimed to have attended for the purposes of drug testing since September 2019. These subpoenas were all returnable on 26 May 2022.
On the evening of 10 May 2022, the day before the case management hearing, the father filed an Application in a Proceeding in which he sought a certificate pursuant to s 128 of the Evidence Act 1995 (“the Evidence Act”)[1] in relation to evidence for inclusion of his trial affidavit concerning his compliance with orders for testing to monitor his drug use.
[1] The Court may issue a certificate pursuant to s 128 of the Evidence Act 1995 and any evidence given by a person in respect of which a certificated issued under this section has been given cannot be used against the person.
At the compliance hearing on 11 May 2022 the proceedings were listed for a one day final hearing on 22 August 2022 to be heard undefended against the father due to his non-compliance with trial directions. The father’s application in which he sought a certificate pursuant to s 128 of the Evidence Act was not before me that day as it had been filed only the previous evening. However, the dates of 5, 6 and 7 September 2022 were also reserved in the event that the order listing the proceedings for undefended hearing was discharged. The father’s application for a certificate under s 128 of the Evidence Act was also adjourned to the hearing date on 22 August 2022.
The father submitted himself to a hair test on 13 May 2022. The results of this test which were positive for substances were released from the laboratory on 26 May 2022 but not provided to the mother within 48 hours as required by those orders.
The father had his first appointment with his psychologist in over 12 months in May 2022. It appears to have been arranged at this time that he was to continue sessions with his psychologist and also spend some time in a detoxification clinic (“the clinic”) under the care of a psychiatrist (“the father’s psychiatrist”).
The father was admitted to the clinic under the care of his psychiatrist for a period of two weeks for detoxification and relapse prevention to achieve abstinence from his substance use disorder.
On 27 May 2022 leave was granted to the parties to inspect the documents produced on subpoena by the various pathology laboratories that the father had purported to have attended since September 2019. It became apparent that the various drug test results the father had provided to the mother since orders had been made for drug testing had been falsified and that he had in fact only undertaken a single hair follicle test at the commencement of this period in September 2019.
Following his discharge from the clinic in mid-2022 the father then had further monthly appointments with both his psychologist and his psychiatrist.
From 17 June 2022 the father attempted to re-negotiate with the mother through his solicitor and with the mother directly in relation to the children spending time with him.
On 17 June 2022 the mother also received a Discharge Summary from the father’s time at the clinic which provided her with further information previously unknown about the extent of the father’s substance use disorder, range of substances that he used and mental health difficulties. The following day the father’s solicitors ceased acting for him in these proceedings.
The father also spent some further time as a voluntary in-patient at another private health facility (“the private hospital”) in mid-2022 for a period of three weeks. The father deposes that this admission related to trauma and had been recommended by his psychiatrist on the basis that his experience of trauma was significant in relation to his substance use. Records of the private hospital and treatment providers at the time are matters to which I will return when considering his history of substance misuse.
As the father had become unrepresented and an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) had been made prohibiting him from personally cross-examining the mother, he was assigned legal representation through the Legal Aid scheme for the final hearing. By this stage the mother had filed a further affidavit in the proceedings on 4 August 2022 deposing to matters concerning the father’s deception and falsification of documents and matters relating to his admission to the clinic and private hospital (for which leave was subsequently granted to enable her to rely upon this affidavit in these proceedings). The father’s trial affidavit sworn 10 August 2022 was filed on 16 August 2022.
On 22 August 2022 the proceedings came before me for final hearing which had been listed to be determined undefended as against the father due to his non-compliance with trial directions. On application of the father, for Reasons given ex tempore the order that the proceedings be heard on an undefended basis was discharged and the final hearing was adjourned to 5-7 September 2022, the dates that had previously been reserved. On 22 August the father’s application for a certificate pursuant to s 128 of the Evidence Act was also withdrawn and dismissed. With the consent of the parties orders were made on a final basis that the mother have sole parental responsibility for the children and the children live with her. On application of the mother, for Reasons given ex tempore an order was also made on an interim basis suspending all interim orders with respect to the children’s time with the father.
THE MATTERS IN DISPUTE
The father’s drug use and sexual activity
It is the mother’s case and the opinion of the expert that the main domains of risk posed by the father to the children arise from his drug use and associated sexual activity. Although the father does not dispute that he has engaged in some illicit drug use for many years and has had consensual sexual activity with partners other than the mother, most often in the context of drug use, he says that such conduct is in the past and that there will be no risk to the children on this basis in the future if orders are made as he proposes. It is the mother’s case that the father has engaged in both drug taking and sexual activity that poses a risk to the children to a far greater extent than the father concedes and have a central impact up the risk he continues to pose to the children and other matters relevant to their best interests. For this reason I am required to make findings in relation to these matters.
Illicit drug use and sexual activity during the marriage
It is the mother’s case that she had suspicions about the father’s illicit drug use from at least an occasion in 2014 when she was concerned about his presentation and he admitted that he and a friend had used an illicit substance together. The mother also deposes to an occasion in about 2016 when the father returned home from attending a school reunion when she observed him to be shaking and he confessed to having used the same illicit substance with his old school friends.
Although the mother deposes to becoming aware at a much later stage to the connection between the father’s drug use and sexual activities, she was not aware of the extent of his ongoing engagement in either of these activities or the connection between the two when she first discovered messages sent to the father in late 2013 that indicated to her that he may be having an extramarital relationship. In 2016 the mother saw a further message sent to the father which indicated similar concerns about his infidelity with a female work colleague.
As indicated earlier when setting out the background to the dispute, it was not until mid-2019 after the mother was able to gain access to messages, emails and data from the father’s phone, that she became aware of a long history of the father engaging in drug use when their marriage was intact. She contends that this long history of drug use is apparent from the communications on the father’s phone about these matters in the period between early 2014 and early 2019. Examples of some of the language used by the father in these messages from which it may be inferred he was using illicit drugs include:
·“What stuff do you have to get wired?”
·“Can you bring [a substance]?”;
·“Having a few lazy [drugs]”;
·“I’m really keen got a little [illicit substance] for us”;
·“Do you have anything like [an illicit substance] (sic)?”;
·“Do you have any [illicit substance] (sic) or stuff to get wired first?”;
·“Keen for you get some [illicit substance] and let’s try stuff”.
It was also apparent from the father’s phone that during a similar period between late 2013 and late 2018 he also sent and received messages which indicate he was engaging in sexual acts in the context of drug use with people he had met on various websites and platforms. Examples of communication of this type include the following messages sent by the father:
·“You ok to share [an illicit substance] or 2 as well? Always wanted my cock sucked while on it”;
·In an email titled “Straight can host in hotel” the father wrote words to the effect of “I am here for work. I am looking to pick up 2 grams of good [illicit substance]”;
·In response to an email titled “young bottom boy” the father asks “do you have any [illicit substance] (sic) or stuff to get wired first?”;
·While at a conference interstate the father sent an email titled “Sex for [drugs]” saying “I have some [illicit substance] (sic) if you want to come into town” and “can share some lines and then have some fun”.

According to the mother’s affidavit she first had some concrete evidence of the father’s illicit and prescription drug use when she located a range of drugs in his work bag on the floor of the parties’ bedroom in late 2018. The substances included what the mother assumed was an illicit substance and prescription medications. The mother deposes to being extremely concerned that the children may have been able to access the bag and potentially consume the drugs and confronted the father about the matter. The father provided explanations to the mother about the prescription drugs and also admitted to having an illicit substance which he says he knew was “wrong” and that he was too embarrassed to tell her about it. The mother said that the father subsequently promised not to take any drugs again and told her he had sought medical treatment in relation to pressure he claimed to be experiencing at the time and in respect of weight loss.
In mid-2019 the mother discovered the second phone used by the father containing his personal profiles on various websites which were utilised by the father to meet with other likeminded people to engage in sexual and drug taking activities. Upon becoming aware of the history of the father’s drug use and related sexual activity the mother left the family home taking the children with her on 16 June 2019 and the parties’ marriage was at an end.
In his trial affidavit the father deposes to using drugs “recreationally” since his mid-twenties. He deposes use of one illicit substance four to six times a year from 2008 to 2016 and that between 2013 and 2016 he used another illicit substance “on several occasions during sexual activity”. He also says he occasionally used other substances during sexual activity.
According to the father’s affidavit, from 2016 he more frequently engaged in extramarital sexual activity which led to an increase in his consumption of drugs during this activity. He deposes to “most often” using an illicit substance while “out” at bars occasionally during the week and during the weekend and to using other illicit substances while engaging in sexual activity with others. He deposes to engaging in drug taking at a frequency of no more than one occasion each week from 2016 until mid-2019.
The father deposes to a particular occasion in 2017 (when the children were two years old and four months old respectively) when he posted an advertisement on one of the online platforms in which he invited other people to attend the family home to engage in sexual activity, though he claims not to have followed through with this plan on that occasion.
According to the father’s affidavit, about a month later, a woman attended the family home to engage in sexual activity with him at a time when the children were asleep. Although he does not depose to this, the father was caring for the children on this occasion while the mother was at a seminar. He deposes to having met this person “Ms B” at a work event and on the occasion he engaged in sexual activity at the home that he and Ms B did not consume drugs.
According to the father’s affidavit he invited Ms B to his home for the purpose of sexual activity on two further occasions in 2018 at a time when his marriage with the mother was intact. He also deposes to posting advertisements on the same platform on other occasions inviting people to engage in sexual activity at home.
According to the father’s affidavit all of the extramarital sexual activity during the marriage was consensual and he never engaged in any form of sexual behaviour in the presence of the children. The father denies that he has been diagnosed with any condition in relation to his sexual conduct or that he has been diagnosed with any “manipulation/deception issues”.
In summary, it was revealed under cross-examination that the father significantly minimised matters relating to his substance misuse in his affidavit.
When cross-examined from records of the private hospital admission in mid-2022 indicating that he “started using drugs at age 17” the father agreed that he had used an illicit substance from this age.
The father was also shown records of his general practitioner in mid-2022 when it is recorded that he was “binge using [various substances] once a week/on weekends when having sex for the past four to five years”. He agreed that this is an accurate record of his history of drug use. The same document also records the father reporting “social use of [an illicit substance] for the past 15 years” which he also confirmed was correct.
The father’s evidence in relation to sexual activity associated with drug use also changed somewhat as a result of cross-examination. In his affidavit the father provides general evidence about his sexual activity with people other than the mother during their relationship. He deposes to using an illicit substance “on several occasions during sexual activity” between 2013 and 2016 and to also occasionally using other substances. He deposes that from 2016 that he more frequently engaged in extramarital sexual activity which lead to an increase in his consumption of drugs during this activity. In particular, he says that he used certain illicit substances while engaging with sexual activity with others.
Although the father conceded in his affidavit that he posted advertisements for others to attend the family home to engage in sexual activity he claims not to have ever followed through with any of those advertisements. According to his affidavit the only occasions on which he had sexual activity at the family home were on one occasion in 2017, and two occasions in 2018 and claims that he was in a relationship with the person involved with this activity. He specifically deposes that the children were present at the home and asleep on the 2017 occasion only. According to the mother’s evidence the father was caring for the children on each of these occasions (as well as his other son on one occasion in 2018).
The father was then cross-examined about an email interchange between himself and a person identified as “Ms C” in 2017 to the following effect:
Father: Wife is taking our son to [place deleted] on Saturday to visit her sister so you can come over to my house. I will be caring for my daughters [names deleted] at home.
[Ms C]: I can be their nanny.
He was also asked about a further email interchange a few days later in 2017 when Ms C comments “it was a bit too easy to get away with it. Let me know next time you need further nanny services” to which the father responded “I was nervous at home and I’m sorry that my performance was not as good as last time”. The father agreed that in these email interchanges he had arranged for Ms C to come over while the mother was out with the older child. He claimed that “Ms C” is the same person named in his affidavit as “Ms B”, with whom he says he was in a relationship as opposed to someone he had connected with on one of the online platforms set up for the purposes of meeting others to engage in sexual activity.
In oral evidence the father gave an extremely confusing account of the circumstances which he had met Ms B, claiming variously that he had met her at a work function, that she had attended at a conference, that she worked for a service provider and that she was an organiser of events at his workplace. He claimed that his relationship with Ms B developed over lunch on six occasions but could not indicate when they commenced a sexual relationship. When last asked how long he was in a relationship with this person, the father then denied that he was ever in a relationship with her and summarised that they were “good friends that had a sexual relationship after six meetings”.
When later cross-examined about placing advertisements on platforms inviting people to engage in sexual activity in the home, the father said that he did this “quite a lot” and that it “would be more than 10 times”[2]. He said that he probably placed those advertisements both before and after late 2017 including during a time when his marriage was intact and the children were very young infants. The father continued to maintain that people did not come to his home as a result of the advertisements and agreed that in this respect that his advertisements were not very successful.
[2] Page 206 transcript 6 September 2022.
Drug use following separation
The father’s affidavit in relation to his claimed abstinence from illicit drug use is unclear. In one paragraph [13] he deposes to abstaining from recreational drug use “from 24 May to December 2019” while in another paragraph [82] he deposes to abstaining from illicit drug use “from 22 May 2019 to March 2020”. When interviewed by the expert it is recorded that he said he has remained drug free “since August 2019”.
During the period of alleged abstinence the father engaged with his psychologist and of his own volition undertook a urinalysis test on 19 July 2019 with a result that drugs were not detected which he provided to the mother through her solicitors. According to his affidavit he also undertook a hair test on 6 August 2019 which produced a negative result but does not depose to providing this result to the mother and she makes no reference to receiving it in her affidavits.
The father also undertook a further urinalysis test on 12 August 2019 apparently of his own volition which also produced a negative result. Although by this stage orders (the August 2019 orders) had been made, which provided for weekly urinalysis testing, the first request under the court ordered regime did not occur until 13 August 2019.
The second request for urinalysis under the court ordered regime occurred on 12 September 2019. Under cross-examination the father was asked about the differences between the results of this test that had been attached to an affidavit previously filed in the proceedings and the results produced on subpoena by the pathology service which had carried out that test. The father agreed that he had altered the results of the test result certificate and the altered document was provided to the mother and attached to his earlier affidavit. He claimed to be unaware that the words “adulterant check” in the document produced on subpoena indicated that the sample may have been tampered with but could offer no explanation for why he had changed the test results.
The father was then asked about a number of other purported urinalysis results that he had forwarded to the mother in 2019 at a time when he claims to have been abstaining from illicit substance use. When it was brought to the father’s attention that there were no corresponding records at the pathology service produced during this period for the test results he had provided to the mother he agreed that he had fraudulently prepared a certificate in respect of a urinalysis test he claimed to have undertaken on 10 October 2019. When it was then put to the father that he fraudulently created this urinalysis test because he was in fact taking drugs at the time, the father agreed that was correct. When it was drawn to the father’s attention that this is inconsistent with his affidavit evidence (that he was drug free until at least December 2019) the father claimed to have been confused and then reiterated that he took drugs “from December 2019 onwards”.
In testing his claim to have been drug free in 2019 following separation the father was cross‑examined about information that he had given to his psychologist about his drug use at this time. In particular he was asked about a therapy session on 23 July 2019 in which the record indicates that he reported using “[various illicit substances]” when “out” and in that context the words “used nothing for four weeks” appear in the record. The father appeared to take issue with this record and maintained that he had told his psychologist that his last drug use was in May 2019.
In relation to his drug use between March 2020 and May 2022, the father deposes to using two illicit substances “during most weeks” and to engaging in illicit drug use during the course of sexual activity on weekends. He denies using drugs during the week when the children were in his care or prior to the children being in his care. He claims not to have used any other illicit drug during this period and not to have consumed alcohol excessively. The father’s affidavit is completely silent in relation to falsifying the drug test results and providing those false results to the mother during this period and all evidence concerning his actions in this regard only emerged under cross-examination.
In oral evidence the father agreed that from the earliest stages in the proceedings a significant issue was his history of drug use and that the orders first made in August 2019 to which he consented required that he take hair follicle tests, engage with a psychologist and that the children’s time with him be supervised. He agreed that he understood these requirements were ordered for the purpose of the protection of the children in his care. He also accepted that the mother asserted in the proceedings that his use of drugs, sexual conduct with other adults, manipulation and deception were the matters of concern for her in the proceedings and that continuing with conduct such as drug use would impact the orders that he sought in the proceedings.
Under cross-examination, the father agreed that he only ultimately admitted to using drugs (after the December 2019 orders) in his trial affidavit as a result of the mother asking for original documents relating to his drug testing through her legal representative. The father was then cross-examined about the veracity of the drug testing results he provided to the mother throughout the proceedings and his actions in falsifying those records. In respect of this evidence the father was given a certificate under s 128 of the Evidence Act.
There was a particular focus in cross-examination upon the three monthly hair follicle tests that the father purported to have undertaken as required pursuant to the December 2019 orders as he finally conceded in his affidavit that he was using illicit drugs at the time. The father confirmed in oral evidence that he had not undertaken any of those tests and that each of the results he had provided to the mother were falsified records created by him. The father confirmed that on each occasion he knew that the mother would rely on those tests to ensure that he was not taking drugs at the time.
The father’s oral evidence about his drug use and testing between January 2020 and February 2022 was somewhat curious because he at times agreed that he had falsified test results when he claims to have not been using substances at the time. His explanation for this conduct was that he “thought it was better than the system at hand” and that he “just didn’t want to take the test because [he] had got away with it in the previous ones”. At times in his oral evidence the father also quibbled about the exact substance that he was using at a particular time even though the net effect of his evidence is that he was using various illicit substances during most of this period and falsified the results of the hair follicle tests to indicate that he was drug free.
Matters concerning dishonesty and deception
Another key issue both in respect of the father’s drug use and risks he may pose to the children is the extent of his dishonesty and engagement in deceptive conduct.
In this regard, the father was asked about the mother’s concern raised through her lawyers in a letter of 25 February 2020 that she had observed a trait in the father which she had previously observed when he was using an illicit substance. The father agreed that he instructed his lawyer to write to the mother confirming that he had complied with all testing results and that he had not taken drugs since May 2019 and that in this way was continually actively misleading the mother through his lawyers in relation to his drug use when she raised legitimate concerns with him about the matter.
In a similar vein, the father was asked under cross-examination about orders made in January 2021 on his application to dispense with the requirement for paternal family members to be present when the children spend time with him. Under cross-examination the father agreed that he was aware that the Judge who made those orders in January 2021 was relying on the fraudulent drug test results he had created and annexed to an affidavit at the time and that the Court was completely mislead by this evidence he filed in support of his application.
Although the father challenged the accuracy of the psychologist’s records that it was he who had cancelled the appointments in first few months of 2020 (even though the December 2019 orders required that he continue with this therapy) he did not appear to dispute that he next made contact with his psychologist about a year later, in early 2021. The father also did not dispute that he untruthfully reported to the psychologist (in early 2021) that he had not engaged in illicit drug use or experimentation with sexual behaviours for some time prior to that date and agreed that he had lied to and manipulated his psychologist about his abstinence from drug use in seeking the reports from her for use in these proceedings.
At a later point in cross-examination the father was also asked about his dishonesty and deception when interviewed by the expert in May 2021. He agreed that at this stage he had returned to drug use while reporting to the expert that an intention to prioritise his time with the children had motivated him to remain drug free since August 2019. The father agreed that in saying this he was manipulating the expert at the time.
The father’s response to questions about sexual experimentation and sexual conduct especially after his admitted return to drug use from December 2019 was more guarded and unclear. In general, in both his affidavit and oral evidence the father appears to concede that his engagement in compulsive sexual activity was highly associated with his drug use. However, at one stage under cross-examination the father agreed with the opinions expressed by his psychologist that any sexual experimentation he had engaged in was limited to the period of time in the early days after separation. He also agreed with his psychologist’s assessment that this sexual experimentation was largely due to his difficulties with self-esteem. The father was cross-examined at some length in relation to the two incidents in early 2020 and mid-2021 that each involved the father seeking the assistance of police as a result of the conduct of people he had met online at his home.
In relation to the incident in early 2020, the father agreed that he had met the individual concerned on a phone application which he used to meet other people for sex and for meeting people in general. The father also agreed that he met this individual in person on a number of occasions prior to that date in early 2020 and that he collected this individual at around midnight on that night from their apartment and brought this individual back to his home and they together consumed alcohol. In oral evidence he agreed and that he and this person had an argument and this individual refused to leave and as a result the father contacted the police for assistance. He also agreed that police attended the home and the individual was escorted downstairs and allowed to leave the premises. When the police returned to the father’s home, the father attempted to provide the name of the individual to police by looking on his online account but was unable to do so as the individual had already blocked him. As a result, the details of this individual remain unknown to the father.
The father did not dispute meeting a person in mid-2021 on an online site and communicating with her in this manner, providing her with his contact details and collecting her from another part of Sydney and taking her back to his home. He agreed that he parked his car in his allocated car space in the building in which he lived and that he and the person he had met online went to his bedroom. He agreed that after he fell asleep he awoke at around 7:30 in the morning but this woman had left, that he went back to sleep before reawakening at 11:30am. According to his own evidence at 4pm that day the father discovered his keys to his car and home were missing and that his car had also been taken and then reported the matter to police. The father also agreed that he did not know this person prior to the evening on which he brought her to his home. Specifically in relation to any potential risk to the children, the father agreed under cross-examination that he did not inform the mother at any time that this incident occurred and that the children were spending time with him that week pursuant to the orders then in place.

The father’s oral evidence about actions he had taken with respect to his records at the sexual health centre were particularly concerning.
The father agreed when cross-examined that he was aware in early 2021 that the mother filed a number of subpoenas to various agencies including the sexual health centre and that access was granted to inspect the documents produced under such subpoena around 1 March 2021. In this way the father conceded that he was aware the mother and the Court would have access to his records in relation to his attendance at the centre. The records include his response to questions about his number of sexual partners, sexual practices and drug use asked at each appointment. The father then agreed that a few days after access was granted to the documents produced on subpoena, he contacted the sexual health centre and requested that an amendment be made to some notes in relation to the number of partners he had reported in late 2019 as he claimed that this record was incorrect.
The father also agreed that later that month, he contacted the sexual health centre in relation to changing his name so that he could test for sexually transmitted diseases anonymously in the future. He denied that he did this in an effort to keep those records from being produced on subpoena in these proceedings and said that he asked for this change to respect his privacy. The father denied using multiple names for this purpose but agreed that he had not provided the second identity he had used at the sexual health centre to anyone in the proceedings including the ICL, adding that he had not been asked for it. The father ultimately agreed that because he had not provided the alternative name that he used for the purposes of testing to anyone in the proceedings, it was not possible to issue a subpoena in relation to records under that name.
Matters relating to the father’s other son
Another matter related the father’s drug use and sexual activities and the question of the risk that these issues pose to the children concerned the arrangements that had been made with respect to the father’s other son spending time with him.
According to the father’s affidavit, he and his former partner separated in 2010 when the father’s other son was approximately nine months old. He deposes that from late 2010 to early 2020 his other son spent time with him each fortnight on Friday and Saturday nights in accordance with a parenting plan.
Although the father’s former partner disputes the length of time that the father’s other son spent time with the father on alternate weekends, she and the father agree that from early 2020 until late 2021 the father’s other son also began spending more extensive block periods with the father during school holidays. When asked under cross-examination about the circumstances in which he reached agreement with his former partner for an increase in this child’s time with him in around late 2020 after some obfuscation the father agreed that he had not at this stage told his former partner about his illicit drug use.
In her affidavit the father’s former partner deposed to the difficulties she had experienced in facilitating her son spending time with the father from around early 2021 and that this subsequently lead to a breakdown in the relationship between the father and his other son such that in late 2021, this child ceased spending time with the father until attempts were made to rekindle that relationship a short time prior to the final hearing.
There is also no dispute between the parties that the father’s other son began engaging in counselling from early 2022 with a psychologist. In her affidavit the father’s former partner deposes that after she collected her son from his counselling session in early 2022 this child tearfully divulged the following three incidents to her during the car ride home:
•One night when I was at Daddy’s, I was going through the photos on his phone before I called you, and I saw pictures of Daddy’s willy on there.
•One time when I was at Daddy’s, he was connecting his phone to the TV and a naughty photo of a woman bending over and displaying her vagina and bum came up on the TV.
•Sometimes when I have been lying in bed trying to get to sleep, I have heard Dad letting someone into the apartment. I heard Dad say “shhhh we have to be quiet”. I do not know who the people were because they were always gone in the morning when I woke up.
In respect of the last mentioned matter, the father’s former partner deposes that his disclosure may provide an explanation for this child calling her once he had been put to bed by the father as he was fearful of who the father had brought into the house while this child was in the father’s care.
When cross-examined about allegations concerning his conduct with respect to his other son the father firmly denied ever inviting a person that he had met online to his home when this child was in his care. The father did agree however that his other son had seen photos of the father’s “willy” on his phone. The father claimed to have no recollection of an occasion when connecting the phone to the TV that “a naughty photo of a woman bending over and displaying her vagina and bum came up on the TV” (as described by this child) in the presencsuce of his other son. The father did concede that it is possible that this child had seen this and that once this child reported such matters to him that he “removed all those photos” and agreed that he “should have known better”. At the time of giving evidence the father’s other son was aged 13.
The father does not dispute that he had not seen his other son since late 2021 until recently. Under cross-examination the father agreed that he was aware that his other son had been engaged with a psychologist and claimed that these sessions related to potential issues with that child’s interaction with another partner of his former partner. The father did ultimately agree that this child had chosen not to spend time with him as a result of his conduct but he had only become aware of this after reading his former partner’s affidavit filed in the proceedings on the behalf of the mother.
Although the father agreed to some matters that his other son had complained about with respect to his conduct, he continued to deny the accuracy of the child’s complaints that people unknown to him had been attending at the father’s home when this child was spending overnight time with him. The father maintained that the only people who had attended his home when this child was in his care were people known to the child and the child had no reason to be fearful about them as had been reported.
Later the father was further cross-examined about the time the children spent with him on alternate Saturdays or Sundays in 2021 and agreed that he had arranged for the children’s Saturday time to occur on the same weekend when his other son was spending time with him. The father was then asked about his affidavit evidence in which he deposes as follows:
I did not consume the drug (sic) during the week, while the children were in my care or prior to the children being in my care. As an example, if the children were in my care on a Saturday I only used drugs in the Saturday evening, and if they were in my care on Sunday, I would only consume drugs on the Sunday evening.
The father agreed that when the children were in his care on a Saturday they were returned to the mother in the afternoon. It was put to the father that after he dropped the children to their mother on a Saturday afternoon throughout 2021 that in accordance with his evidence this must mean that he consumed drugs while his other son was in his care. The father emphatically denied consuming drugs on any weekend that his other son was spending weekend time with him. When reminded that he had just agreed under cross-examination that he aligned his other son’s alternate weekends with him with the Saturday the children were in his care and his affidavit evidence was that he consumed drugs on the Saturday evening after he returned the children to the mother, the father denied that his affidavit evidence had been correctly understood. The father confirmed that he took drugs on a Saturday evening throughout 2021 after the children had been returned to the mother but said that this only occurred when his other son was not spending weekend time with him.
The father’s drug use after April 2022
In his affidavit and under cross-examination, the father identified specifically that he had last used drugs in May 2022. Although this did not coincide with any event that the father recollected, he was firm that this was the last date on which he had used an illicit substance.
At one stage in cross-examination he was asked about his lifestyle during the time he used drugs and was asked in particular whether this record of information he had given in a therapy session[3] in mid-2022 was correct:
[His] ritual of dysfunction is to use drug of choice ([…] 3 pts of [the drug]) of nighttime or on a weekend before seeking out sexual encounters or experiences that give him a “thrill” and make him feel “wanted”. Encounters allow client to explore his sexuality. Client acts out through binge using, dating sites, affairs, ads on [named platform] and through aggression and rage/irritability. Client reports that the dysfunction impacts all areas of life, leading to unmanageability in marriage (lying, cheating, affairs, ex wife not speaking to him), kids (not speaking to him), work (forced to resign due to using), finances (spending up to $30k per year to support habit & $150k in legal fees), self-care (no gym, no sleep, no seeing kids), mental health (grandiosity, victim).
[3] In the records of the private hospital - Exhibit 4.
The father agreed that other than the reference to “[…] 3 points of [the drug]” which should read “consuming”, that extract did accurately reflect what he said in the group and accurately reflected the behaviour he engaged in prior to May 2022.
At another stage in cross-examination the father agreed that he had told staff at the clinic as recorded in the clinic’s records that he had “lied all my life for my own benefit”.
When cross-examined about the urinalysis test results provided to the mother in 2022, the father agreed that he had falsely created results in relation to tests purportedly taken on 8 February and 3 March 2022 and 21 April 2022 and in fact had not undergone those tests and that the test result in relation to 21 April 2022 (provided to the mother on 29 April 2022) caused the mother to raise questions about the integrity of the testing regime.
The last hair follicle test undertaken by the father was on 13 May 2022 which produced a positive result for illicit substances. He has not submitted to any further hair testing to demonstrate abstinence from drugs though he has undertaken urinalysis since that date.
Under cross-examination about his circumstances from May 2022 the father agreed he had changed his whole way of life from this time. He agreed that he needed to regain the mother’s trust which begins with acknowledging his short-comings from the past which he had said he had tried to do. He agreed that truthfulness and telling lies has been a big issue for him for about 15 years but maintained that this was in the past.
The father was cross-examined about documents produced on subpoena by the clinic in relation to his admission in mid-2022 and his admission to the private hospital in mid-2022 for a period of three weeks.
In addition to the questions about his history of drug use, the father was also asked about his conduct at the private hospital in particular. Records of the private hospital of mid-2022 indicate that the father had been inappropriate towards three different patients on multiple occasions. When specifically asked whether he had discussed “threesomes” with females in a (therapy) group and shown other members of the group “porn material of [himself] and other porn scenes” on his iPad, the father denied any knowledge of these matters. He could offer no explanation as to why such incidents were recorded in the private hospital notes and claimed that this was the first time that he had heard about them. He did however agree that his iPad was taken from him at the private hospital but denied that after it was removed he was still bragging to other patients about what he had showed them saying that it had not occurred in the first place.
When further cross-examined about his progress at the private hospital the father denied that he left the private hospital early and maintained that he had completed his “full three weeks”. When shown records of the private hospital produced on subpoena which indicated that he had left the program early and requested a refund, the father explained that he completed his three weeks as an in-patient at the private hospital but had left a transition program after three days. The father agreed that it was important to finish the transition program to completion but that he had not done that.
In his affidavit the father deposed that as part of his recovery at the private hospital he had “reached out to both [the mother] and [his former partner] to participate in a family and carers support program in an attempt to rebuild a strong parental relationship for [the father’s other son and the children]”. When challenged about the accuracy of this statement in relation to the mother, the father ultimately agreed that he personally had not “reached out” to the mother and his reason for not having done so was because he “got threatened not to send her any text messages, basically about anything” and to “not communicate with her about anything other than the children”.
The father was cross-examined by the ICL’s counsel about his affidavit evidence sworn on 10 August 2022 that he is “presently undergoing rehabilitation treatment”. The father’s evidence about his rehabilitation treatment as at August 2022 when the affidavit was sworn and September 2022 when he gave evidence was a little unclear. He gave oral evidence that he had been attending a men’s group each Monday focusing on relapse prevention which he appeared to confirm was ongoing in September 2022, although at one stage he said he was only attending this program when he was not working. The father also deposed in his affidavit to attending a Narcotics Anonymous meeting daily and attending upon his psychologist and psychiatrist each on a monthly basis. The father gave oral evidence that he was scheduled to continue seeing his psychiatrist monthly until the end of 2022 but only had one more session left with his psychologist and was in future to engage with a qualified counsellor that he met in the private hospital who focuses on drug rehabilitation. At the time of giving evidence, the father said that he was applying for full-time roles in his chosen profession.
As indicated in the background, it is the father’s case that the reason he sought treatment at the private hospital in particular was to address the underlying cause of his substance misuse which he maintains is trauma resulting from his childhood experience of being bullied and of harsh parenting at the hands of his father.
When asked about the trauma he had experienced as child the father gave evidence that he been physically disciplined and been yelled at and at times he felt that he was both bullied at school and bullied at home. The paternal grandfather in oral evidence adamantly denied ever hitting the father as a child or being aware that the father had experienced trauma as a child for any reason.
Discussion and Findings
I am easily satisfied to the requisite standard[4] that the father has a long-standing pattern of substance misuse including in particular the use of illicit substances and misuse of other substances. Ultimately, the father agreed under cross-examination that he had misused illicit substances since the age of 17 (that is, for 25 years) had used a particular illicit substance for the past 15 years as at mid-2022 and misused other illicit substances around once a week on weekends for the past four to five years. In his trial affidavit the father deposes to using an illicit substance while out at bars, occasionally during the week and during the weekend and to using other illicit substances approximately once a week from 2016.
[4] S 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
I am not satisfied that the father ceased his illicit drug use from 22 or 24 May 2019 to around December 2019 as he deposes in his affidavit for the following reasons.
First, the only evidence of the father’s abstinence from illicit substances from May 2019 comes from the father himself. The accuracy and honesty of the father’s evidence in general must be approached with significant caution given his own admission that he has “lied all my life for my own benefit”[5]. On his own admission the father has engaged in significant and widespread deception and dishonesty towards the mother, his previous lawyers, the Court, the expert and his own psychologist. Further, his dishonesty and deception in creating false test results was only brought to light when the mother raised questions about the integrity of these results.
[5] Note of the Clinic dated 1 July 2022 produced on subpoena - Exhibit 4 page 177.
I do not accept the submission made on the father’s behalf that he was a “candid witness” on the basis that he admitted under cross-examination to lying in a previous affidavit of 2020 about having ceased drug use, made admissions about each of the false drug test results and conceded under cross-examination that he prioritised his own use of drugs above the needs of his children. I am of the view that each of these “admissions” or concessions amount to little more than agreeing to established facts about his conduct. It was beyond dispute when the father was cross-examined that he had not undertaken the drug tests as he claimed from August 2019 to February 2022 as this matter had been revealed by documents produced on subpoena issued by the mother. His dishonesty, previous false evidence and concession about prioritising his own use of drugs over the needs of the children were not contained within the father’s own affidavit but were admitted to under cross-examination when faced with incontrovertible evidence about these matters.
Next, I have concerns about the accuracy of the father’s evidence as to his drug use. In this regard I attach weight to the father’s description of his drug use as “recreational” which, as opined by the expert when discussing illicit drug use, normalises the drug use and has the effect of minimising it. I consider it also weighty that although the father gives an account of some drug use in his trial affidavit it is minimised compared to the matters he agreed to under cross-examination. For example, he deposes to using a small amount of an illicit substance four to six times a year from 2008 to 2016, using another illicit substance “on several occasions” between 2013 and 2016 and occasionally using other substances also at this time, whereas his later concessions about his drug use[6] are much more extensive. The father’s communications via text message and email from the second phone which he kept concealed from the mother is more consistent with more extensive use of a range of substances all throughout this period.
[6] For example his description of drug use given at a private hospital therapy session extracted in paragraph [126].
Significantly, the father also omits from his affidavit any evidence concerning his untrue representations to the mother and to the Court in the affidavits previously filed about the creation of false test result certificates throughout the period that he was required to undergo testing and monitoring of his drug use for the purpose of protecting the children in his care.

Other evidence adduced under cross-examination relevant to the respective proposals and the best interest considerations will be detailed when considering such matters later in these Reasons.
The expert is a registered psychologist with endorsement from the Australian Health Practitioner Regulation Authority Psychology Board of Australia to practice in the areas of forensic and clinical psychology. She has a postgraduate degree and other qualifications. At the time the expert gave evidence she was engaged in private practice where her main role was to conduct a forensic and clinical psychological practice including assessments for this Court. The expert has over 30 years’ experience assessing and treating children, young people and adults using evidence-based practice and has undertaken research and publications set out in her curriculum vitae. Between 2003 and 2016 the expert was appointed to the New South Wales Children’s Court clinic and later held a senior position at the clinic. The expert has also had experience in government and non-government areas as an adolescent and child family psychologist and in general community psychology practice.
The expert interviewed each of the parents for three to four hours and the assessment interview included the administration of psychological tests which took approximately 60 minutes to complete. The older child was interviewed for about half an hour and each of the parents were observed in their interactions with the children for about 30 minutes. The expert also observed the children with the father, paternal grandfather and the father’s other son. Information available to the expert from other sources included with the mother’s consent, a conversation with the principal of the older child’s school on two occasions and with the director of the younger children’s preschool. Other collateral information available to the expert included the Child Responsive Program Memorandum dated 4 November 2020 and documents produced on subpoena including medical records, the father’s employment records and two reports from the father’s psychologist dated 5 August 2019 and 8 March 2021.
The expert was cross-examined at length by counsel for each of the parties and the ICL and also answered numerous questions posed by myself. Each of the parties relies in their respective proposals upon significant portions or totality of the expert’s evidence. In all of the foregoing circumstances, I accept the opinion of the expert and attach significant weight to it.
THE LAW & DISCUSSION
The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Best Interests Considerations
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests.
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[8] approved the interpretation of the phrase by Brown J in Mazorski & Albright[9] that it is a relationship that is “important” or “of consequence”.
[8] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
[9] (2007) 37 Fam LR 518.
The authorities have not interpreted this subsection as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents. Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).
The Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
It is correctly observed on behalf of the father that the orders proposed by both the mother and the ICL do not provide for the father’s ongoing involvement in the children’s lives and in this way do not promote “meaningful relationships” between the father and the children. It is the father’s contention that such proposals are draconian and not required in the circumstances of this case and that any risk of harm that may be found by the Court to be posed by him may be ameliorated by making the orders that he proposes for quite limited daytime contact only with the children which would be initially supervised by paternal family members.
It is submitted on behalf of the father that there is a positive benefit to the children maintaining their relationships with him given his parenting role since the birth of each of the children, the absence of any child protection or family violence concerns during the course of the marriage prior to separation and the steps the father has taken to address the matters of concern about his conduct that he contends are now in the past.
In these proceedings neither the ICL nor the mother contend that the children do not receive a benefit from having a meaningful relationship with the father. Rather, the mother contends that the need to protect the children from harm outweighs any benefit that they may receive from having a meaningful relationship with the father. It is the father’s case that while the need to protect the children from harm of the nature envisaged in this consideration is highly significant it does not outweigh the benefit that the children receive from having a meaningful relationships with him.
As noted previously, the expert had opined in her report that there is no doubt that the children will benefit from having a meaningful relationship with both parents on the assumption that the relationships are safe, nurturing and that they occur in developmentally supportive households where protective parenting is child-focused.
It is essentially the case of the mother and ICL that currently the children’s relationships with their father cannot be found to be safe and nurturing and that the father’s household cannot be found to be developmentally supportive and where child-focused protective parenting is in place.
In the opinion of the expert and on the basis of my findings, the father’s capacity to provide child-focused protective parenting and a safe, nurturing and developmentally supportive environment has been compromised by his long-standing engagement in substance misuse, sexual activity with strangers and deceptive conduct. The contention of the mother and ICL, with which I agree, is that I cannot be satisfied currently that the father no longer engages in any of this conduct and that he has rehabilitated himself in this regard as he contends.
As previously explained, I am not satisfied that the father was abstinent from drug use at the time of final hearing. I also attach weight to the opinion of the expert that rehabilitation is a lengthy process and is particularly complex for the father having regard to the number of substances he has used and changes to his lifestyle that would be entailed in rehabilitation and her view that the process he has undertaken to date is likely to be insufficient to have overcome the complexities of his rehabilitation needs.
Through the proposal that the father have leave to seek a reconsideration of the children’s time with him, so long as he addresses the matters of concern, the mother and ICL do not deny the children the opportunity of receiving the benefit of a meaningful relationship with the father. Such a proposal places the onus upon the father himself to make the necessary changes in his life to address the risk that he poses to the children. In the opinion of the expert this approach is in the children’s best interests as it alleviates the stress and burden from the mother of policing the father’s conduct and places that burden where it should be, on the father, while providing him with an opportunity to demonstrate that he can turn his life around so that the children may receive the possibility of the benefit of having a meaningful relationship with him.
The second of the primary considerations is the need to protect the children from harm arising in particular identified ways, that is, being subjected to or exposed to, abuse, neglect or family violence.
The focus of written submissions made on the behalf of the mother is framed under this consideration. However, in supplementary oral submissions it was clarified that the unacceptable risk of harm to the children that the mother contends is posed by the father does not relate to harm arising from being subjected to or exposed to abuse or family violence, though she does maintain this risk in part relates to harm arising from neglect.
It was conceded by the mother’s counsel that the unacceptable risk of harm the mother contends is posed by the father to the children arises in the main from shortcomings in his parental capacity to meet the children’s needs which overlaps significantly with a risk of harm arising from neglect. The ICL’s submissions were to similar effect. These matters will be dealt with compendiously when considering parental capacity later in these Reasons.
The father denies that he poses an unacceptable risk of harm to the children on any basis if orders are made as he proposes. He contends that any risk that may be found to be present in his household is ameliorated by the initial supervision by family members and by limiting the children’s time with him to the daytime as he proposes. The contention that paternal family members can appropriately supervise the children’s time with the father is at odds with the expert’s opinion as is the contention that the children are safe in the father’s care if that time is not supervised.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
As noted by the expert it appears clear that each of the children love both parents and enjoy being with them for different reasons.
The younger children were not interviewed due to their young age when assessed (three years and under one year) and thus have not expressed any views about their future parenting arrangements.
The oldest child only provided direct information at the assessment but I accept the expert’s opinion that these comments (which did not really amount to views) should not be given priority over other matters related to the children’s best interests. This is especially so where the presence of risk and the need to protect the children from harm assume such significance in the proceedings.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
There is no dispute in the proceedings that the mother has been the children’s primary caregiver throughout their lives and is their primary attachment figure. The orders previously made by consent (that the children live with the mother) support the children living with the parent to whom they are primarily attached.
The expert contrasted the children’s relationships with the mother to their relationship with the father and described their emotionally secure relationships with the father as “emerging” at the time of her assessment in May 2021. The expert recorded observations of positive affectional relationships between the children and the father which she opined is a basis for building positive relationship security. She also opined that the children’s independent relationships with the father are dependent on the quality of the time they spend together and on the father’s responsive, child-focused parenting attitudes and provision of a consistently safe and nurturing household.
It subsequently came to light that at the time the family was assessed the father was continuing to engage in the misuse of a range of substances and sexual activity with individuals he met online and was perpetuating an ongoing deception of the mother through failing to undergo drug testing and in creating false test results. Although these matters had not fully come to light at the time, the father informed the mother in mid-2022 that he would no longer be facilitating the children’s time with him. Subsequently when these matters did become apparent the mother no longer agreed to the time between the father and the children resuming.
The quality of the time the children spent with the father during the 12 months following assessment by the expert and prior to that time ceasing is unknown, but it may be assumed that the relationships between the children and the father have become attenuated over the past 12 months where no contact has occurred.
Only the orders proposed by the father will ensure that the children will have a relationship with him at this stage which is a significant consideration in the proceedings. The proposal of the mother and ICL will not necessarily bring an end to the children’s relationships with the father but rather place the onus on the father himself for the possibility of those relationships being rekindled in the future.
It also became apparent in the proceedings that the children have had beneficial and close relationships with both maternal and paternal grandparents throughout their lives and with the children’s half-sibling, the father’s other son.
It is most unfortunate for the children that they currently do not spend any time with their paternal grandparents who clearly played a significant role in their lives prior to May 2021. It did however also become apparent at final hearing that the relationship between the mother and the paternal grandparents is cordial and the mother showed a willingness to support the children’s relationships with their paternal grandparents in the future.
It also came to light in the proceedings that the mother has a good relationship with the father’s former partner and together they have taken steps to ensure that the children and the father’s other son spend time together, even during the period when neither the father’s other son or the children were spending time with the father.
In summary it can be said that the children’s ongoing beneficial relationships with other members of their extended paternal family are not dependent upon the children having an ongoing relationship with the father himself.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
When their relationship was intact, although the mother was the primary caregiver, both parents were involved in decision making concerning the children and the father also had a caregiving role.
Since separation the father has taken steps to play a role in the children’s life of the type envisaged in this consideration and for some time managed through his deception to do so while engaging in conduct to satisfy his own desires.
The father has not spent time with the children since mid-2022 when he informed the mother through his previous lawyers that he would not be facilitating the children’s time with him after the mother raised questions about the veracity of his drug test results. The father attempted after that date to have the mother agree to re-institute some contact between himself and the children. By that stage, as a result of the father’s deception and further information concerning his ongoing drug taking and associated actions coming to light potentially placing the children at risk, the mother changed her position with respect her proposed parenting arrangement and was not prepared to enter into negotiations with the father about reinstatement of the children’s time with him.
The father now pursues his opportunity to participate in the children’s lives through this application to spend time and communicate with them. He must be taken to have accepted that it is in the children’s best interests for the mother to be solely responsible for long-term decision making through his consent to an order that she have sole parental responsibility for the children.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
In his Case Outline (which the father seeks to have adopted as a final submission) it is submitted on his behalf that in reaching agreement with the mother with respect to a property settlement the father “in effect catered for the current and future needs of the mother and the children”. I accept that this reflects the father’s attitude towards his obligations to financially support his children.
The reality is that the mother has been largely responsible for the financial support of the children since separation. Although the father did provide some financial support through Child Support payments he fell into arrears and at the final hearing admitted that he owed about $5,500 in arrears of Child Support. This reflects poorly upon the father in circumstances where he accepted the truth of a record in the private hospital notes that he spent up to $30,000 per year to support his drug habit.
Likely effect of change in the children’s circumstances including the likely effect on the children of any separation from either of their parents

From the father’s perspective this is a particularly significant matter in determination of orders that are in the children’s best interests. He relies in this regard on the expert’s evidence about the potential adverse effects upon children whose relationship with a parent is suddenly severed where the children’s emotionally secure relationships with that parent were “emerging” and they clearly enjoyed spending time with that parent.
It is to be remembered however that the evidence given by the expert about the serious adverse impacts upon a child when a parent suddenly disappears from a child’s life[10] were explained to be at the “extreme end of potential difficulties” for children generally. Moreover, there is no evidence that the children who are the subject of these proceedings have been seriously adversely affected as described by the expert. I have no reason not to accept the mother’s evidence that the children appear to have adjusted reasonably well to the absence of their father in their lives given my assessment of the accuracy and veracity of her evidence generally. I am also of the view that given the mother’s capacity as a caregiver that in the event difficulties for the children do emerge as a result of the absence of the father in their lives, the mother is well placed to arrange any therapeutic or psychological assistance that they may require.
[10] See paragraph [217] of these Reasons.
Further, if the father is able to take responsibility for his shortcomings as a parent and addresses the matters of risk he poses he will be given an opportunity (if orders are made as sought by the mother and ICL) to approach the Court to revisit the arrangement for the children to spend time with him.
The orders proposed by the ICL and mother will not bring about any change in the children’s circumstances for the past 12 months since the father chose to cease facilitating their time with him. The father provided no indication to the mother in mid-2022 as to when he may have sought to resume the children’s time and at the same time the mother became aware of the level of the father’s deception as to highly relevant matters concerning risks to the children’s well‑being and safety in his care. The interim orders providing for the children’s time which had not been in operation since mid-2022 were discharged by court order in August 2022.
I accept the expert’s evidence that it is likely the children did experience some loss and sadness when the father decided that their time with him was to cease and would experience losses if they are to remain separated from the father, his other son and the paternal grandparents on a long-term basis. As previously explained (when considering the children’s relationships) I am reasonably confident that if orders are made as sought by the mother and ICL, the mother will take any necessary steps available to her so that the separation from the father’s other son and paternal grandparents is not absolute. So far as the father is concerned, if orders are made as proposed by the mother and ICL then ensuring that the children’s separation from him is limited to around two years is entirely in his hands.
The children would receive a benefit from their time with the father being re-instated as he proposes, but only if that time is child-focused and occurs in a protective, safe and nurturing environment. I am currently not of the view that the father has the capacity to provide care of this nature to the children and thus any change in their circumstances which would result if orders were made as he proposes would be detrimental to them.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There are no difficulties of this nature that arise from the proposal of either parties or the ICL in these proceedings.
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
Maturity, lifestyle and background of the parents
Attitude to the children and responsibilities of parenthood demonstrated by each parent
I agree with the expert’s assessment that the mother impresses as a committed, loving parent who is diligently parenting the children in a nurturing and developmentally supportive environment. I also agree as identified by the expert that the mother has demonstrated she can consistently hold the children in mind while she reliably meets all their parenting needs in a predictable child-focused environment. The mother has demonstrated she is responsible for recognising and meeting the security of the children’s short and long-term emotional care. The expert identified in the mother many other strengths including sensitive, responsible, child‑focused parenting and the ability to manage developmentally sensitive and difficult child behaviour, as well as a stable employment history and stable lifestyle.
The matters identified in the evidence about the father’s capacity which also raise issues of the risks of harm he poses to the children are the most salient matters in determination of this parenting application. As discussed earlier, it is the contention of the mother and ICL that the father’s shortcomings and incapacities as a parent give rise to the risk he poses to children. The mother and ICL contend consistent with the opinion of the expert, that the risk posed by the father is unacceptable if orders were made as he proposes that would see the children spend time with him that is unsupervised after a period of three months supervised by paternal family members. The mother and ICL contend that the only orders that are appropriate to protect the children from the unacceptable risk of harm posed by the father are the orders that they propose. For all of the reasons given and attaching particular weight to this consideration, I agree with these contentions.
Attaching weight to the opinion of the expert and my findings, the matters arising from the father’s substance misuse, lifestyle and deceptive conduct in combination which give rise to these risks are as follows:
·In the event that the father does not cease his substance misuse and has substances in his possession at his home, the children may gain access to those substances (as the mother feared may have occurred in late 2018 when she located a range of drugs in the father’s work bag on the floor of the parties’ bedroom);
·If the father engages in substance use prior to the children coming into his care, he may continue to be drug-affected or experiencing the after effects of drug use when caring for them. As a result he may be inattentive and in the opinion of the expert unresponsive to the children’s needs;
·The father may exhibit changes in his mood and behaviour associated with his substance misuse (such as aggression, rage, irritability) as described in a therapy session in mid-2022[11];
·The father’s failure to set boundaries around his own lifestyle may expose the children to risks associated with him bringing people who are effectively strangers to his home as demonstrated in the incidents in which he required police assistance with the conduct such individuals;
·The demonstrated prioritisation by the father of his own needs and desires over the needs of his children may in the opinion of the expert compromise the children’s developmental needs for a pro-social role model;
·The instability, inconsistency and unreliability in the father’s caregiving and overall functioning arising from his drug misuse was also identified by the expert as falling short of the standard necessary to support the children’s development;
·The father’s deception, dishonesty and features of his lifestyle are likely to raise the mother’s anxiety which may compromise her capacity as she may be unable to predict the children’s experience with the father and how to ensure that they are not exposed to unacceptable risks;
·As a result of the father’s lack of boundaries around his sexual activities, the children may be exposed to inappropriate media such as occurred with the father’s other son;
·The father’s ongoing use of illicit drugs by necessity involves him in criminal activities and raises the risk of harm to the children from his association with the criminal milieu.
[11] See paragraph [126] of these Reasons.
It is essentially the contention of the father that as he has undergone rehabilitation which is ongoing he now has the capacity to provide for the needs of the children. In submissions made on his behalf the father does not grapple with the identified matters of significant concern raised by the expert or advance submissions as to why I would be satisfied that he has appropriately addressed those matters in light of the expert’s opinion.
Maturity, sex, lifestyle and background (including culture and traditions) of the parents or children
Issues relating to the background and lifestyle of each of the parents that also overlap with their respective capacity to meet the children’s needs and their attitudes toward the responsibilities of parenthood have already been considered.
Nothing of particular note is advanced by the mother concerning matters relating to the children’s cultural heritage and traditions.
The cultural heritage of the father is identified in submissions made on his behalf, but there is nothing particular of note in those submissions except to say that the paternal family enjoy family events together, especially at Easter and Christmas and it will be a loss to the children for them not to be able to exercise the right to enjoy their paternal heritage. Although it is undoubtedly correct that this will be a loss for the children, as previously discussed, there is some likelihood that their relationships with the extended paternal family members will not be completely severed if orders are made as proposed by the mother and ICL given the reasonable relationship between the mother and extended paternal family.
Family violence relating to the children or a member of the children’s family
As previously discussed, while I am satisfied that the father acted at times in an emotionally abusive, harassing and disrespectful manner towards the mother I do not find that he perpetrated family violence against her.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
While it is generally considered that bringing finality to any parental dispute is of benefit to children, I do not consider that it is preferable to make an order least likely to lead to the institution of further proceedings.
The best outcome for these children would be an arrangement in which they could receive the benefit of a meaningful relationship with both parents while being protected from harm. The only way that such an arrangement will be achieved is through orders as proposed by the mother and ICL. If the father has the willingness and capacity to address the significant matters which give rise to the risks to the children in his care he may then avail himself of leave in orders proposed by the mother and ICL to return to Court to revisit the children’s time. Such action by him will by definition lead to the institution of further proceedings in relation to the children. It is central to the expert’s opinion, my findings and views overall that the children should not be deprived of the opportunity for their father to demonstrate that he has the capacity to have a relationship with them in the future which is both beneficial and safe.
CONCLUSION
As indicated, the only matter I am required to determine is whether it is in the best interests of the children for any orders to be made to foster their relationships with the father and in particular whether orders should be made as he seeks.
For all of the forgoing reasons and attaching particular weight to the need to protect the children from harm, the capacity of each parent to meet the needs of the children, matters related to the father’s lifestyle and attitude to the responsibilities of parenthood and the evidence of the expert as a whole, I am satisfied that the orders that are most consistent with the children’s best interests are those proposed by the mother. The orders sought by the ICL are in very similar terms and in my view there are no additional benefit to the children if I were to make orders in terms of the ICL’s proposal rather than the proposal of the mother.

I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 18 April 2023

File number(s):	PAC 3217 of 2019
Judgment of:	HANNAM J
Date of judgment:	18 April 2023
Catchwords:	FAMILY LAW – FINAL PARENTING – Where the mother contends that the father poses a significant risk of harm to the children arising from his drug use and associated sexual activity – Where the ICL agrees with the contentions of the mother – Where the father’s conduct was deceptive and dishonest – Where the father falsified his drug test results – Where it is contended that the father’s capacity to meet the children’s needs is compromised – Where the father asserts that there is no risk – Whether emotional abuse amounts to family violence – Where orders are made for the children to live with the mother – Where orders are made for no contact with the father – Orders made as sought by the mother – Where leave is granted to the father to apply to vary the parenting arrangements if certain conditions are met
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CC(2), 60CC(3)
Cases cited:	Isles & Nelissen [2022] FedFamC1A 97 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark(2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Division:	Division 1 First Instance
Number of paragraphs:	293
Date of last submission/s:	20 December 2022
Date of hearing:	5 – 7 September 2022; 28 October 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Zmood
Solicitor for the Applicant:	Ark Law Lawyers
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Barkus Doolan Winning
Counsel for the Independent Children's Lawyer:	Mr Maddox
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Parramatta Family Law

PAC 3217 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LAZZARI Applicant
AND:	MS LAZZARI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	18 April 2023