MacPherson & Hamish (No 2) - [2022] FedCFamC1F 964

Federal Circuit and Family Court of Australia
(DIVISION 1) first instance
MacPherson & Hamish (No 2) [2022] FedCFamC1F 964

File number(s): TVC768 of 2021

Judgment of: CAREW J

Date of judgment: 8 December 2022

Catchwords:
FAMILY LAW – PARENTING – unacceptable risk of harm to children – where father has long history of deceptive conduct and addiction to opioids – where father has history of family violence including threats to kill the mother – where threats made in front of children – where the Court orders sole parental responsibility to the mother with no time and no communication with the father – where long term supervision is not appropriate.

FAMILY LAW – COSTS – where commencement of trial was delayed to allow father to prepare affidavit addressing matters that should have been included in trial affidavit – where trial did not finish in allocated five days as a result – application for costs thrown away – costs ordered in the fixed sum of $10,000 payable within 90 days

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC93-637

Briginshaw v Briginshaw (1936) 60 CLR 336

Eastley & Eastley [2022] FedCF1A 101

Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294

Isles and Nelissen [2022] FedCFamC1A97

Johnson & Page (2007) FLC 93-344

Lenova & Lenova (Costs) [2011] FamCAFC 141

Makita (Australia) Pty Ltd v Sprowles

M v M (1998) 166 CLR 69

Nada & Nettle (Costs) (2014) FLC 93-612

N and S and the Separate Representative (1996) FLC 92-655

Penfold v Penfold (1980) 144 CLR 311

ZP v PS (1994) 181 CLR 639

Number of paragraphs: 196

Date of hearing: 17-21 October 2022, 3 November 2022

Place: Heard in Townsville, delivered in Brisbane

Counsel for the Applicant: Mr M Fellows

Solicitor for the Applicant: Lee Turnbull & Co

Counsel for the Respondent: Ms C Dart

Solicitor for the Respondent: Stevenson & McNamara Lawyers

Counsel for the Independent Children's Lawyer: Mrs R C Bassano

Solicitor for the Independent Children's Lawyer: Murray & Lyons Solicitors

ORDER

TVC768 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MACPHERSON

Applicant

AND:
MR HAMISH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

8 December 2022

THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children, X born 2016 and Y born 2018.
2.The children live with the mother.
3.The father not spend any time or communicate with the children.
4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained from:
(a)Approaching or contacting the mother or children by any means including electronic communication;
(b)Causing or threatening to cause bodily harm to the mother;
(c)Harassing or stalking the mother; and
(d)Coming within 100 metres of:
(i)The mother’s home; and
(ii)The children’s school(s), before/after school care or any extracurricular program at which the children may attend.

5.The mother be permitted to obtain an Australian travel document for the children and travel internationally with the children for the purposes of s 11(1)(b) of the Australian Passports Act 2005 (Cth).
6.Upon the father providing the mother’s lawyers with a post office box number and address, the mother provide the father with a twice yearly summary of the children’s health and education progress. For this purpose, the mother is permitted to redact any information that might disclose the location of the children’s residence or school.
7.The father pay the mother’s costs thrown away by the delay in commencing the trial fixed in the sum of $10,000 and payable within 90 days.

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

This is a parenting case in which the father of two young children has a very long history of deceptive conduct (in relation to criminal offending and personal relationships) and addiction to opioids. The father also has a history of family violence, including threatening to kill the mother of the children. Since separation, the father has engaged in appalling emotional abuse of the children by making such threats in front of the children.
By the end of the trial, and despite continuing to deny most of the allegations made against him (including the threats to kill), the father proposed to submit to an order requiring him to undergo intensive therapy while continuing to spend supervised time with the children at a contact centre until he is able to produce a report from his therapists confirming the completion of therapy, and thereafter spending gradually increasing unsupervised time with the children.
While parenting orders often involve making predictions about the future, this is not a case where there can be any confidence that the unacceptable risk of harm posed by the father could be satisfactorily addressed as suggested. The continuation of supervised visits would also create an unsustainable burden on the mother, who lives in understandable fear of the father.
Sadly for the children, who appear to enjoy their supervised visits with the father, the children cannot safely have a meaningful relationship with the father at this time or in the foreseeable future.
The reasons for these conclusions are explained below.
Credit
I rarely find it necessary to make general findings of credit in parenting matters, but I consider it necessary to do so in this case. The father has a very long history of deception and untruthfulness in his dealings with the mother, his mother and step-father, his previous employer, his doctors, pharmacists and his current treating support group at the Alcohol, Tobacco and other Drugs Service (“ATODS”). While making some concessions during cross-examination, the father did little to overcome the overwhelming impression of unreliability of his evidence when regard was had to (in particular) the independent sources of information e.g. hospital records. I find myself unable to place any weight on the father’s evidence where it is not independently verified or conceded. Accordingly, wherever the mother’s and father’s evidence differ I have preferred the mother’s evidence.
Background
The mother and father commenced a relationship in 2015 and were married in 2016. Final separation occurred on 26 December 2019 although the parents remained living in the same residence until the father moved out in early 2020. The parents’ divorce was finalised on 16 July 2021.
The applicant mother, Ms MacPherson, was born in 1990 and is nearly 32 years of age. She is a healthcare professional and is employed on a full-time basis, on a two week roster rotation. Week one requires the mother to work from 6.00am to 6.00pm on Thursday, Friday, Saturday and Sunday, and week two requires the mother to work from 6.00am to 6.00pm on Thursday and Friday and from 9.00pm Saturday until 1.00pm or 2.00pm on Sunday.
The mother lives with her partner, Mr L. Their relationship commenced in 2020 and they began living together in early 2021. Mr L is 35 years of age and previously worked in security, but retired for medical reasons in early 2022. Mr L is currently undertaking a tertiary education.
The respondent father, Mr Hamish, was born in 1989 and is 33 years of age. He is currently working on a casual basis, and receives the Commonwealth Government pension payment, ‘Jobseeker’. The father lives with his mother and her husband. He has not re-partnered.
The father was employed at a medical facility from 2012 until 2018. His employment was terminated after it was discovered that he had been using his position to fraudulently obtain opioids.
The father has a string of convictions for fraudulent activity. The father kept his addiction and the extent of his criminal activity hidden from the mother and his family. The extent of the father’s criminal activity and addiction only became known to the father’s mother and step-father during the trial.
The parents have two children. X was born in 2016 and is currently 6 years of age and Y was born in 2018 and is currently 4 years of age. X attends a school in City C and is in grade one. Y attends a local day care centre for approximately half a day on Wednesdays. Y will commence kindergarten next year. The mother meets all of the children’s day to day expenses including X’s school fees.
From about March 2020, the father started spending time with the children at the former matrimonial home while the mother was at work or was otherwise away from the house. This coincided with the Covid-19 pandemic which, from time to time, imposed various restrictions on citizens’ day to day freedom of movement (although to a far lesser extent in the City C region). The father later began spending day time with the children on Thursdays and Fridays in each week at his own residence.
There were many occasions when the father refused to return the children to the mother as agreed and would either deliver the children late or keep the children in his care overnight, even driving the children to City N (a distance of nearly five hours) on one occasion for the weekend to attend his sister’s wedding.
A temporary protection order was made in early 2020 naming the mother as the aggrieved and the father as the respondent. The temporary protection order was withdrawn by police in mid-2020. The father concedes that the police withdrew the application after representations were made to them by his former solicitor, who apparently produced various text messages purportedly from the mother to the father. Whatever was shown to the police (the father has never produced the text messages in these proceedings and the mother was not cross-examined about them), convinced the police that the mother’s allegations were vexatious; a most unjustified conclusion, given my findings in this case.
On 14 June 2021, the mother commenced these proceedings.
On 13 September 2021, an interim Order was made by consent for the children to live with the mother and spend time with the father on a fortnightly basis for one overnight on Thursday, and day time on Sunday in week one, and from Friday morning until Sunday night in week two.
On 8 November 2021, a further interim Order was made by consent for the children to live with the mother and spend time with the father as per the Order of 13 September 2021, but with provision for the father to spend time with the children during the December/January school holiday period in 2021, and the Easter school holiday period in 2022, and on special occasions.
On 2 June 2022, the mother and father attended upon Dr D, a psychiatrist, by video conference, for the purpose of undergoing psychiatric assessment. Ms E, a registered general psychologist, assisted Dr D by administering various psychometric tests, although Dr D remained present throughout. A psychiatric assessment report was prepared by Dr D and is annexed to an affidavit filed 26 June 2022.
A family report was prepared by Dr F, a clinical and developmental psychologist, on 11 June 2022 following interviews with the mother on 1 and 8 June 2022, and with the father on 3 and 9 June 2022. The family report is annexed to an affidavit of Dr F filed 29 June 2022.
Following the release of the reports prepared by Dr D and Dr F, which suggested a high risk of murder/suicide by the father, the mother stopped facilitating time between the father and the children on 16 June 2022.
The children did not spend any time with the father from 16 June 2022 until an interim Order was made on 20 July 2022 for the father to spend supervised time with the children for two hours per week at a contact centre pending final order. The first supervised visit occurred on 7 August 2022.
The father entered into an opioid substitution program with ATODS in early 2019 and is required to attend monthly reviews with his case manager and three monthly medical reviews. Under the program, the father’s opioid addiction is managed by him taking a regulated dose of an opioid substitution medication per day, to address cravings and withdrawal and to reduce the risk of him obtaining opioids illegally.
The father apparently attended upon a psychologist, Ms M for 12 sessions in 2021, and then with Ms P on three occasions (first session in mid-2022), although no evidence was produced by the father from either Ms M or Ms P. In relation to Ms P, it was suggested that there was a dispute about her fees.
The trial was unable to commence until the afternoon of the second day due to the father being granted leave to file a further affidavit, specifically addressing the detailed allegations made against him by the mother, which he had previously failed to address in any detail or at all.
Proposals of each party
The mother opposes the father spending any time or having any communication with the children. The mother proposes that she have sole parental responsibility. If successful in her application, she would be able to travel and live where she wished with the children, without consultation with the father, and would be able to obtain any necessary travel documents without the father’s consent. The order sought by the mother is set out in her amended Initiating Application filed 19 September 2022.
The father’s proposal significantly changed by the end of the trial. At the commencement of the trial, the father sought the immediate re-commencement of unsupervised time with the children, for increasing periods until by January 2024 week about. That proposal was abandoned, and he now seeks a continuation of weekly supervised time until he is able to produce a report from his yet to be engaged therapists confirming he has undertaken Dialectic Behaviour Therapy (“DBT”) and otherwise completed treatment. The father consents to the mother having sole parental responsibility, but proposes that he be consulted about major long term issues. The precise terms of the order sought by the father are set out in Exhibit 18.
The independent children’s lawyer (“ICL”) recommends that the mother have sole parental responsibility (without having to consult the father) and for the father to spend no time and not communicate with the children. The order recommended by the ICL is set out in Exhibit 17.
Issues
The parties identified the following issues for determination in these proceedings (Exhibit 19):
(1)Will the children be at an unacceptable risk of harm in the father’s care as a result of the father’s mental health, any personality vulnerabilities and/or possible personality disorder, his mental and behavioural disorder due to his use of opioids, dependence syndrome and/or alleged family violence?
(2)If the father is found to pose an unacceptable risk of harm to the children, can this risk be ameliorated by supervision or other means?
(a)If so, is it in the children’s best interests to spend supervised time with their father, including possibly long term supervision?
(b)If so, what needs to occur in order to progress the time to unsupervised time?
(3)Does the mother have the capacity to facilitate a meaningful relationship between the children and their father:
(a)If the Court finds that the father poses an unacceptable risk, which can be ameliorated by supervision or other means? or
(b)If the Court finds that the father does not pose an unacceptable risk?
(4)The impact on the children, including the likely effect of any separation from a parent, resulting from a further change in the children’s circumstances?
(5)As an order for sole parental responsibility will be made:
(a)Should the mother consult the father about any long term decisions to be made whilst retaining ultimate decision making?
(b)Should the father receive information regarding the children’s health and education directly from the providers or through the mother?
What law governs the determination of a parenting Dispute?
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which set out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined by s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility;
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

In cases involving significant allegations of abuse or family violence, a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”,[3] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1998) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1936) 60 CLR 336 at 362 (Dixon J).
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92-655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the possible risk of future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93-344 at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles at [7].
[9] Isles at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC93-637.
I turn now to consider the issues in this matter.
Will the children be at an unacceptable risk of harm in the father’s care as a result of the father’s mental health, any personality vulnerabilities and/or possible personality disorder, his Mental and Behavioural Disorder due to his use of Opioids, Dependence Syndrome and/or alleged family violence?
Family violence
It is convenient to first deal with the allegations of family violence made by the mother against the father. The allegations can be categorised by reference to the definition in s 4AB of the Act as follows:
(a)Threatening or other behaviour by the father that coerces or controls the mother or causes the mother to be fearful;
(b)Threatening to kill the mother;
(c)Stalking the mother;
(d)Repeated derogatory taunts;
(e)Unreasonably denying the mother financial autonomy that she would otherwise have had;
(f)Preventing the mother from keeping connections with her family and friends;
(g)Exposing the children to threats of death by the father towards the mother;
(h)Exposing the children to derogatory taunts by the father towards the mother;
(i)Encouraging Y to assault the mother; and
(j)Telling the children that the mother does not want them.
The evidence presented by the mother to support her allegations is detailed (for the most part), including as to the timing of the events, the circumstances surrounding the events, and identifying with particularity the actual words spoken. I set out below a summarised version of particular instances of the alleged family violence:
(a)Around the time the mother became pregnant with X, the father starting to verbally abuse the mother when he was upset, calling her names such as – “pig”, “bitch”, “psychopath”, “crazy cow” and “slut”;
(b)During 2017 to 2019, the mother raised her unhappiness about the state of their relationship with the father on a number of occasions only to be told – “I would kill you if you ever left”;
(c)In early 2019, when the mother attempted to end the relationship, the father said to her – “If you ever leave me and take the kids I am going to slit your throat and drown you”;
(d)In early 2020, the father sent the mother a text message threatening suicide;
(e)In early 2020, during a disagreement, the father yelled abuse at the mother calling her, among other things, a “fucking liar”, “easy” and a “pig”;
(f)In early 2020, the father engaged in stalking behaviour and sent the mother a text message – “Hope your (sic) enjoying your company”;
(g)In early 2020, the father sent a series of text messages including a threat to commit suicide – “Tell the babies daddy tried but he can’t take it anymore. I have to leave. Good bye all!” and “I’ve left my super to the babies”;
(h)On a date in early 2020, the father engaged in stalking behaviour and sent a text message to the mother at 8.15pm saying he had left a bag at the mother’s front door. At around 8.40pm, the father called the mother’s phone a number of times and when the mother ultimately answered the call, the father said “You have got someone over”. The father then entered the mother’s home using keys he had told the mother he had previously left with her, and charged towards her, yelling and crying out – “How could you do this to me. You are my wife” and “This is all your fault. I can’t live like this anymore. Tell the kids I tried. I am going to kill myself”;
(i)In early 2020, the father went through the mother’s bin and found a pregnancy test. With Y in his arms he yelled to the mother, among other things – “You’re a cheap whore” and a “fucking slut”;
(j)In early 2020, at a changeover and in front of the children, the father said to the mother, among other things –“You just sleep with everyone and anyone” and “You are a pig”;
(k)On a date in early 2020, while attending at the mother’s home to spend time with the children, the father yelled abuse at the mother including yelling in front of the children – “I will make sure the kids know that whilst they were asleep you were more interested in screwing around with men then (sic) sleeping beside them”;
(l)Later that same day, the father abused the mother again calling her a “grub” among other things;
(m)The father engaged in stalking behaviour and taunted the mother saying – “I know everything about you and what you do”;
(n)The father stole an old phone of the mother’s and communicated with people pretending to be her;
(o)In early 2020, while the children were present, the father yelled at the mother – “You are a fucking liar. … Off spending time fucking around with all your boyfriends”. The father then demanded to know who the mother was sleeping with and called her a “fucking psychopath”. He continued, saying – “Your kids are better off without you”, “Not even the Police believe your bullshit”, “You are a crazy psychopath”, “You are still cheating on me [Ms MacPherson], I can’t believe what a grub you are, you are a disgusting psychopath”, “You are not allowed to bring other men around the children and if you do, you are done for”, “See kids, mummy would rather go out and spend time with other people instead of you. Naughty mummy. … Mummy doesn’t want you guys … Smack mummy she is naughty”. The father then made the following further threat – “When I am done with you, you won’t have a job”. The father admitted to the mother that he had her old phone and threatened her that “I can contact who I want and make it look like you have done anything. Good luck when you lose your job. It is all your fault, you deserve this after what you have done to me”;
(p)In mid-2020, at a changeover, the father said to the mother, among other things– “You don’t deserve these kids. You are a disgusting pig [Ms MacPherson] sleeping with everyone. Your kids are going to know who you are as a person and I have all this evidence to show them … Even the Police threw out your DVO because it was as bullshit as you. … I had the DVO thrown out. Bet you feel safe now!”;
(q)In mid-2020, the father said to Y “Bad [Mr L], go away” which was immediately parroted by Y;
(r)In mid-2020, the father made a complaint about the mother to her employer, which resulted in her being unable to act in higher duties or undertake specialist training. The mother was the subject of an investigation which concluded in late 2020 that the complaint was unsubstantiated;
(s)In mid-2020, the father repeatedly made comments to the children that the mother did not want to spend time with them because she was exercising;
(t)In mid-2020, X said to the mother – “Daddy always calls me a liar Mummy. He tells me to say bad things about you and [Mr L] and when I won’t say them, he calls me a liar. This makes me really sad”. X then burst into tears;
(u)In mid-2020, at a changeover, the father said to the mother in a raised voice – “disgusting pig”, “shit parent”, “It isn’t like you want [the children]”, and “You’re psychotic”;
(v)In mid-2020, at a changeover, the father threatened Mr L, saying to the mother – “I’m going to kick his teeth down his throat”;
(w)In mid-2020, at a changeover, the father threatened not to bring the children back and again threatened the mother’s job – “You are not going to have a job when I am done with you”. The father also called the mother a “grub” and made a further threat – “How dare you do this to me, you are done for”. When the mother arrived home, Mr L found that screws had been placed in front of his tyres;
(x)In mid-2020, X noticed the screws on the kitchen bench and asked – “Did you get them from Daddy’s car? Daddy has nails like that in his car and a pair of […] gloves” and “Why is Daddy gunna shoot [Mr L] through the eye with a gun?”;
(y)In mid-2020, at a changeover, the father said to the mother – “… you are easy now and everyone knows it. … Just another easier fuck you are”;
(z)In mid-2020, the father met the mother at a park where she was with the children, ostensibly to give her some money for the children. The father took Y to his car and insisted on driving him back to the mother’s home. As the mother approached the father’s car she turned on the video on her phone. The mother noted that on the front seat of the father’s car he had a partly opened bag in which the mother saw what appeared to be a handgun;
(aa)During the eight month period between early 2021 and late 2021, the father returned the children well after, just prior, or just after their bedtime on 84 occasions and on several occasions kept them overnight without the mother’s consent;
(bb)In early 2021 (after the father had kept the children for the weekend without the mother’s consent and travelled with the children to City N), X broke down on numerous occasions saying – “Why did you not come and get me? You told me you would see me tonight and you left us. Daddy says you don’t want us to live with you anymore”;
(cc)Y said to the mother and/or Mr L – “Daddy say you’re a pig mumma”, Daddy’s gonna hit you with his car”, “Daddy’s gonna shoot you mumma” and “Daddy’s gonna hit you [Mr L]”;
(dd)X said to the mother – “Daddy says you’re going to die mum, and I will have to live with him. You’re not going to die are you?”, “Daddy says we aren’t safe with you”, “Daddy doesn’t like you, [Ms R] or [Mr L]. He says you are bad people and are going to hurt us”, and “Daddy has a gun. He says he uses it to kill bad people. Daddy says you, [Mr L] and [Ms R] are bad people”;
(ee)In mid-2021, the father said to the mother – “I’d cut your shit out. Deadset (sic), none of your family will be there to save you when I eventually snap”;
(ff)In mid-2022, X said – “Daddy has two guns, a rubber band gun and a black gun. … I have seen it. It has bullets”. Y joined the conversation, saying to the mother “Yeah, it’s black. Bang mum, bang [Mr L]”. X then said to the mother – “I don’t want you to die”;
(gg)X said to the mother – “What happens when dad shoots you and we don’t have a mum? Who is going to look after us?”, “Daddy says you are trying to take us away from him. He said he is going to take us first and not come back”;
(hh)In late 2022, X said to Ms Q, a psychologist, about the father - “he said he will shoot mummy”; and
(ii)In late 2022, X asked the mother what happens when she needs to bury her mother.
The mother relies upon evidence from the following witnesses: Ms R (her mother), Mr L (her partner), Ms S, Ms U, Mr T, Mr V and Ms Q (the children’s psychologist).
Ms R contends that she has always been civil to the father but there was one occasion in late 2020 when the father called her an idiot and she responded in a raised voice that she did not appreciate being called that. Regrettably, her neighbour, came over and hit the father. The father reported the matter to police, the neighbour was cautioned, and the matter finalised. Ms R contends that X has said on numerous occasions – “Daddy has a gun. It’s got bullets”, “Daddy is going to shoot you”, and “[Ms R] is going in the bin”. Ms R contends that Y has said – “Daddy is going to run a wheel over you” and “Daddy says to punch you”. There have been occasions, according to Ms R, when Y has hit her and when she asked why he did so, he has responded that the father told him to.
Mr L recalls numerous occasions when Y has pinched or punched him, prompting him to ask Y - “Why did you do that?” with Y responding along the lines – “Daddy says to hurt you”. Y has also said to him – “Daddy is going to hurt you and you will be dead”. Mr L contends that both X and Y have said to him – “Daddy has a gun and he says that he is going to shoot you and mum”.
Ms S recalls receiving text messages from the father in early 2020 in which he asked questions about the mother, and the mother conveying to her that she was scared of the father. Ms S recalls one specific occasion when the mother said to her that if anything was to happen to her and the children, it would be because of the father.
Ms U recalls an occasion in late 2020 when X asked her mother – “Why does daddy want to shoot [Mr L]?” Ms U recalls the father often threatening not to bring the children home.
Mr T has been the mother’s psychologist since early 2020. Mr T has provided and is continuing to provide psychological support for the mother in circumstances where the mother described the escalation in the father’s behaviour, including making threats towards her and Mr L.
Mr V is a former work colleague. In mid-2020, Mr V received numerous text messages from the father who was impersonating the mother. The father admits to this conduct.
Ms Q has conducted play therapy with the children over a number of months with the aim of building a rapport so that the children feel comfortable talking about their feelings and anything worrying them. In late 2022, X said – “My daddy said he will shoot mummy”. The father’s counsel sought to raise the suspicion that X had made this statement at the behest of the mother, and suggested it would be unusual for a child to spontaneously say something like that when it was not proximate to the alleged statement by the father. Ms Q opined that - “if any child has heard or witnessed something of that type of wording, I don’t think it matters whether it was a week ago, a month ago. A child will remember something as significant and traumatic as that”. I accept Ms Q’s opinion.
Some of the mother’s text messages to the father are certainly consistent with some of her allegations of coercive and controlling behaviour by the father. For example, on a date in late 2019, the mother sent the following text messages to the father:
(a)I need to actually go somewhere without having to be told, “be back at X’;
(b)I am sick of being an adult and having nothing and struggling. I feel really isolated;
(c)I don’t feel supported for working. I get blackmailed into taking sick leave;
(d)I want to go to places and not have someone complain or carry on until we go home;
(e)The kids deserve experiences. I want to be able to go out and have time with my family and parents, like I used to.
The father’s history of deception, addiction and criminal activity
The father has a long history of deception, addiction and criminal activity and that history is relevant to both the determination of the family violence allegations and of the father’s mental health/personality vulnerabilities/personality disorder/dependence disorder.
At some point in his life, the father became addicted to opioids. It is difficult to pinpoint exactly when his addiction commenced, because he has given conflicting accounts about when he first used opioids. It may have been as early as 2008. At the latest, it would appear the father was addicted to opioids by 2015, because his first conviction for fraudulently obtaining opioid tablets from a chemist at Suburb W was in late 2015. The father was at that time employed at a medical facility as a healthcare professional, a position he held from 2012 until his employment was terminated in 2018. The father presented forged prescriptions at various chemists to obtain opioids.
In early 2016, the father was fined (with no conviction recorded) for offences of fraudulent activity on three occasions.
In early 2016, the father told the mother he thought he was in trouble and might be going to gaol. He admitted to the mother that he had presented a fraudulent prescription to the chemist on Z Street and the police had come to speak to him. The father assured the mother that it had only been one time. He would not permit the mother to accompany him to court the following day. Upon returning from court, the father told the mother that the judge had felt sorry for him and had fined him but not recorded a conviction.
Later in 2016, the police attended at the family home, to the shock of the mother, who started crying and walked out of the room. After the police left, the father said to her – “How dare you storm out of the room and fucking embarrass me … real supportive!” The father was charged with further offences but became angry with the mother if she asked any questions. The father repeatedly assured the mother that he was not addicted to pain medication.

In early 2017, the father was fined (no conviction recorded) for offences relating to fraudulently obtaining opioids from various chemists on multiple occasions between late 2015 and early 2016.
In early 2018, a decision was made by the father’s employer that the father had breached sections of the Public Service Act 2008 (Qld) by failing to uphold the integrity required of public servants, by committing fraudulent activities involving prescriptions and drugs and by failing to report criminal charges to his manager. The father was invited to make submissions on what disciplinary action should be taken, and later that month a written submission was provided on the father’s behalf by his Union representative, in which the father represented, among other things:
(a)That he had no prior criminal history, the conduct was out of character and he was embarrassed and remorseful;
(b)That the offences occurred during a dark period of his life for which he was still experiencing mental health issues;
(c)That he had been experiencing a chronic illness which medical professionals were finding difficult to treat; and
(d)That he had forgotten about the requirement to notify his manager about criminal charges.
The representation that the father had no prior criminal history is at the very least misleading (although it is unclear if the extent of the father’s criminal history was disclosed), but in any event, given the very long history of his offending, it was patently false to state that his conduct was out of character. There is no medical evidence that the father was experiencing mental health issues at the time or a chronic illness which medical professionals were finding difficult to treat.
In mid-2018, the father presented at the Outpatient Department, City C Hospital. The information provided by the father is recorded as follows:
[An opioid] nominated as principle drug of concern: First used age 19. Last used today […]. Pattern is daily […] for past 12 months. [Another opioid] daily last taken month ago. [A third opioid] for past 3 days. 6 months previous he was on [that opioid] for 6 month period. Described withdrawal symptoms as: mood swings, diarrhoea, abdo pain, sweating. 2 years ago was the last time he was 5 days without medications.
…
Ambivalent about engaging due to his work connections …
Insight – lacking insight into withdrawal management and processes
…
… Current occupation. [A medical facility] as [a healthcare professional], full time.
Legal
Nil past or future pending
At this hospital attendance, the father accepted a referral to ATODS but did not attend.
It is reasonable to infer that information recorded about the father was provided by the father. The father was not working at the medical facility as at mid-2018. That information was untrue. The father’s employment had been terminated a number of months earlier. The information that the father had no past or future pending legal proceedings was also untrue. The father by that time had an extensive criminal history.
Around late 2018, the police again attended the family home. The father was at the gym and the police conducted a search of the home. The mother was at home during the search. The father later informed the mother that he had been charged with fraud but refused to provide her with any details.
In early 2019, the father was referred to ATODS by his then GP, Dr AA, because the father wished to go onto the opioid substitution program. The father registered with ATODS and commenced the program later that month. ATODS is described as a medical intervention involving case management and planning pharmacotherapy, supported with ongoing counselling and regular urine drug screens. According to the Queensland Medication-Assisted Treatment of Opioid Dependence Clinical Guidelines 2018:
Improvements tend to become significant after 3 months of treatment with the majority of benefit gained after at least twelve months in treatment. Benefits may be sustained with continued treatment.
The father has been on the opioid substitution program for over three and a half years with few, if any, discernible indications of consistent improvement.
In early 2019, the father presented to the Emergency Department at the City C Hospital. Information which I infer was provided by the father at this time includes the following:
[Three opioids] nominated as principle drug[s] of concern. First used 2013. Last used this morning […]. Yesterday he had [another opioid]. [A third opioid] taken last month. Described withdrawal symptoms as: chest pain, sweating, anger, lethargy.
…
… Thoughts of self harm (drive car into wall) in withdrawal “in order to get the drug”. Repeated thoughts like voice telling him to “take the drug”.
…
… “The medications are for pain, but I would take more than prescribed”. Ambivalent about problem.
…
Legal
Nil past or future pending.
The father was again unforthcoming about his criminal history.
In early 2019, during a medical consultation, the father is reported as stating that he had first started using opioids six years previously when he was prescribed an opioid painkiller for an injury and then post operatively for another procedure. The father then ‘doctor shopped’ for that opioid taking up to 17 tablets per day. The father denied ever stealing opioids from work and specifically stated that all drugs were obtained legally by prescription. He reported having had three or four jobs since being fired from his job after a member of staff reported him for using opioids, but said his jobs “never last” due to him missing work to source opioids. He stated that in 2018 he had gone “cold turkey” but relapsed after six weeks due to significant withdrawal symptoms. He stated that his wife was supportive of his withdrawal. He also said his parents and siblings were all aware and were supportive.
The information provided by the father contains a number of untruths including:
(a)That all drugs had been obtained legally by prescription;
(b)Portraying himself as a victim by losing his job as a result of a member of staff reporting him for using opioids;
(c)Stating that the mother and his family were supportive of his withdrawal when they did not know he was addicted; and
(d)Stating that he had remained drug free for six weeks in 2018, when he admitted during cross-examination that the longest period of time that he had not used opioids prior to commencing with ATODS was five days, not six weeks.
As at May 2019, the father was described by Dr BB from ATODS as stable on a dosage of opioid substitution medication, and receiving the medication under daily supervised pick-ups and dosing at a pharmacy. The father was noted to have stated that he wanted to cease opioids and was motivated and supported by his wife and family. The father’s opioid dependence history was noted to be “significant” involving “doctor shopping”, and in particular for the three month period from late 2018 to early 2019 the father had obtained 42 scripts from 16 different prescribers for various opioids. The father reported “fleeting thoughts of self-harm during withdrawals in order to get the drug”.
The information conveyed to Dr BB by the father that the mother and his family were supportive was untrue as they did not know of his addiction at that time.
In mid-2019, the father was convicted and fined for fraud. The offence was committed in late 2018. The circumstances concerning this offence were that the father had fraudulently advertised a piece of merchandise for sale representing that it was genuine. After transferring the deposit, the purchaser discovered the lie and reported the matter to police. In late 2018 the police executed a search warrant at the family home where the fake merchandise was located. In mid-2020, the father’s appeal against conviction and leave to appeal against sentence were dismissed.
In mid-2019, the father tested positive for opioids which he informed ATODS was one specific opioid.
During a three month period in late 2019, the father defrauded three people and as a consequence received payments totalling about $15,000. At this time, the mother was paying all family expenses including rent and food. Apart from buying the mother some small treats, there is no evidence the father contributed his ill-gotten gains to the family. The father was convicted of these offences in mid-2022.
In late 2019, the father contacted the City C Mental Health Service (ATODS) and informed them that he had accidently put his opioid substitution medication in the washing machine and they were no longer usable. When he did not immediately get through to the psychiatrist, Dr DD, the father said he might as well kill himself. Attempts were made to contact the father, and messages were left for him to call back. Dr DD advised that the medication comes in a water proof wrapping and it was noted that the father’s takeaway dose was for the current week and he was not due for more doses until 3 days later. The records from this service include the following information:
…
Over the phone, [the father] stated that if he didn’t get any extra doses then he “might need to use to avoid feeling sick” …
…
After being declined further doses he started threatening to commit suicide.
Imp:
Current high risk if given further doses in the setting of not being able to handle take away doses and not being able to explain coherently how his doses got [blank]
Plan – Discussed with [Dr DD] (Psychiatrist)
1.No further doses/scripts to be given
2.Previous take away doses on regular weekends will need to be reviewed in the setting of not being able to control take away doses
3.If he represents (sic) to ED he is not to have further [opioid substitution medication] doses on admission
4.To resume regular doses on next pick up date …
At 3.00 pm the same day, the father returned the call to the Acute Care Team at the City C Hospital. The father said that he had tried to sort out his supervision but no one was able to tell the pharmacy his dose. When asked about his suicide threat, the father said - “It’s fine”, although he confirmed that he has suicidal thoughts every now and again. The father was advised to attend the Emergency Department in relation to his “shakes and heart palpitations” but the father said they would not do anything. The father abruptly terminated the call.
In late 2019, the mother found prescription pain medications in the father’s car including various opioids. The father admits this.
In early 2020, the father presented to the Emergency Department at the City C Hospital pursuant to an emergency examination order. The presenting complaint is noted in the hospital records to be as follows:
Suicidal ideation, 6 month [history] of suicidal thoughts, progressively getting worse, today relationship breakdown, plans in place, [seen by] GP today for plan to avoid self harm, on EEA. …
Information received from the father included his statement that his wife had started a new relationship and that he had told her “Sup[er] is in the kids name” and left. The father is reported to have said that he did this out of malice, as he wanted her to hurt as much as he did. I reject the father’s denial that he said this. The father is also reported to have said that his parents work in mental health and have referred him to a psychologist whom he was due to see soon. There is no evidence the father saw a psychologist at this time. The father’s opioid substitution medication dosage was noted. The father was noted to present well, and was calm, compliant and interactive. He was discharged.
Two days later, the father called the mother and told her he could hear voices in her home. The father was loitering outside her home. The mother had a male friend visiting and they were watching the football when the father entered the home with keys he had retained, unbeknown to the mother. When the father moved out of the home in early 2020 he had told the mother he had left his keys in the bowl above the fridge. Upon entering the home, the father charged at the mother, yelling and crying – “How could you do this to me. You are my wife. … This is all your fault. I can’t live like this anymore. Tell the kids I tried. I am going to kill myself”. The father admits he said these words. The father then left the mother’s home.
The mother called police and requested that they check on the father. She told police she feared the father would either kill himself or her. When police attended upon the father he confirmed that he had been at the mother’s home and entered with a set of keys. He confirmed that he had threatened to commit suicide. The father was taken to the hospital under an emergency examination order because of concerns for his welfare.
It is unclear what occurred at the hospital on that day, but about a week later, the Acute Care Team from City C Hospital wrote to the father noting that they had been unsuccessful in contacting him since receiving a referral from Police Communications for a mental health follow up. The father was advised to engage with his GP for medication management and ongoing mental health support. Further, the father was provided with referrals to a range of support services and he was advised to continue his follow up with ATODS.
The father’s treatment was supposed to involve monthly medical review and monthly supportive counselling with his case manager. Contrary to that expectation, the father attended for appointments on two occasions in April 2019, seven appointments in May 2019, three appointments in June 2019, no appointments in July 2019, two appointments in August 2019, no appointments in September 2019, one appointment in October 2019, one appointment in November 2019, no appointments in December 2019, one appointment in January 2020, no appointments in February 2020, one appointment in March 2020 and one appointment in April 2020. In April 2020, the father’s depression, anxiety, stress scale (DASS) results indicated that his depression, anxiety and stress levels were extreme.
As at April 2020, the father is described in the ATODS records as stable on a therapeutic dose of opioid substitution medication and was said to have “continued to make positive changes in his life”. Given the numerous issues arising in the twelve months prior, it is difficult to understand the basis for this comment.
Subsequent to the April 2020 review, the father’s urine drug screens for April, July and August 2020 were positive for benzodiazepines (a type of sedative medication) which the father informed ATODS had been prescribed by his GP. This information was substantially untrue. The father had forged a prescription for a benzodiazepine in mid-2020 and changed the number of tablets from two or three to 20 or 30.
The father was prescribed an antidepressant in mid-2020 by a GP, which the father ceased taking two months later because of the sedative effect.
In May 2020, the father’s opioid substitution medication dose was increased because of increased urges and cravings for opioids. The father said he was accessing appropriate psychological support. This was untrue.
During his ATODS review in July 2020, the father disclosed having homicidal thoughts about the mother which coincided with deterioration in his mood and increased alcohol intake. The father’s opioid substitution medication dose was increased due to an alleged injury sustained after a fall. There is no medical evidence that the father suffered an injury at this time.
As already noted, in mid-2020 the father committed offences in that he changed a prescription provided to him for a benzodiazepine for two or three tablets to 20 or 30 tablets. The father did not inform ATODS of this offence at the time, although he may have informed his current case manager, Mr EE, sometime after early 2022 that he had been charged with such an offence but not that he had been convicted.
In his August 2020 medical review, the father disclosed that he had been having ongoing benzodiazepines and extra opioid tablets. In August 2020, the father’s opioid substitution medication dose was decreased but increased again less than a week later after the father said he had increased cravings for opioids.
The father was prescribed another antidepressant in late 2020 by Dr FF, consultant psychiatrist at ATODS, but again self-ceased because he felt he did not need them.
The father missed his medical review appointment in November 2020.
The next day, the father attended the Mental Health Service (ATODS) for his urine drug screen. He was holding a part of his body and said that when he was dropping his children at their grandmother’s home, an argument developed between himself and his mother-in-law. A neighbour then hit him and he left with the children. The father said that he had recorded the incident on his dash cam and could use it as evidence. The father requested an increase in his opioid substitution medication dose for 4 days to address the pain and this was agreed to. The father had previously claimed to have injured his body part due to a fall in mid-2020 and on that basis his opioid substitution medication dose was increased. The incident involving his mother-in-law’s neighbour involved him being hit in a different part of the body.
The father again requested an increase in his opioid substitution medication dose a week later for a further five days but this request was initially refused. The father complained that the mother had not permitted the children to sleep over the previous weekend.
By November 2020, the father’s opioid substitution medication dose had increased substantially per day with it being noted that it had increased “due to increased cravings with social stress, and pain following [his] injury”. The records indicate that the father had “ongoing […] pain follow[ing] fall months ago”. The father reported increased cravings in setting of ongoing stressors and pain.
In a letter from ATODS to the father’s new treating GP, Dr GG in late 2020, it was noted that the father knows that he is not to be prescribed benzodiazepines or other opioids while taking opioid substitution medication. The father’s urine drug screen tests were positive for benzodiazepines in April 2020, July 2020 and twice in August 2020. As at December 2020, the father’s opioid substitution medication doses were supervised Monday to Friday, with take away doses on Saturday and Sunday. The letter in late 2020 also noted that it had been strongly recommended to the father that he re-commence therapy with a psychologist. As previously noted, there is no evidence the father consulted a psychologist prior to 2021.
During an ATODS appointment in December 2020, the father said he had obtained some casual labour work. He complained about the mother’s treatment of him stating he is now “numb” to her behaviour towards him. The father has repeatedly attempted to portray himself as the victim in the relationship.
In December 2020, the father attended for a medical review with ATODS and said that the pain from his injury was slowly improving although it was noted that despite previously stating that he had had steroid injections, he had not in fact done so. It was also noted that although previous discussions had indicated that an anti-depressant should be taken, the father had not obtained a prescription from his GP. The father was again provided with a prescription for an antidepressant.
During an ATODS appointment in January 2021, the father spoke positively about his future and how important it was for him to focus on being a father and how another antidepressant had made a difference to his thinking. The father spoke positively about obtaining employment. It is unclear where the father obtained the prescription for this antidepressant, if indeed he had. The father’s urine drug screens for the period December 2020 to May 2021 are positive for opioid substitution medication only.

During his ATODS appointment in February 2021, it was noted that the father’s history of opioid use and dependency started after an injury in 2008, and that his usage increased in 2017 during workplace bullying. In the disciplinary proceedings submission referred to at [62], the father makes no mention of alleged workplace bullying. The records also provide information attributed to the father that in 2018 he was ‘doctor shopping’ and taking 16 opioid tablets per day. The father is reported to have denied obtaining illicit opioids, stating that his supply was all from prescriptions. The father failed to mention that the prescriptions had been forged by him. The father indicated that his injury occurred in mid-2020. The father has given various inconsistent statements about when and how he sustained the injury. There is no medical evidence to corroborate this injury. The records note that the father admitted that he had suicidal thoughts on “the night he found his wife cheating on him” i.e. early 2020. At that time, the parents had already been separated for a number of months. Again the father seeks to portray himself as a victim. The father said they there were working on a reconciliation and were attending counselling when this occurred. This was untrue. The father denied becoming angry and said he just cried. The father denied any aggression or violence. This was also untrue. The father stated that he had been seeing a psychologist fortnightly but had recently stopped. This was untrue. As previously noted, the father said during cross-examination that he had seen Ms M, a psychologist, over six months for an initial six sessions under a mental health care plan and a further six sessions in 2021. The father contended that he ceased seeing Ms M because she retired in 2021. Diagnoses made at this ATODS review were that the father had opioid dependence, alcohol harmful use and sedative harmful use. The father was unable to say why there was no evidence from Ms M relied upon by him in the proceedings. I infer that the evidence would not have assisted him.
In February 2021, the father attended at ATODS without an appointment. He requested additional take away doses of opioid substitution medication due to him having recently obtained employment. The father was in work attire and promised to provide proof of his employment. There is no evidence that he did so. The father stated that he had recently accessed his superannuation to pay certain debts. Despite accessing his superannuation, there is no evidence the father made any contribution to the children’s support, which continued to be met solely by the mother.
In March 2021, the father contacted ATODS and asked for an additional take away dose of opioid substitution medication because he said he had miscalculated and run out. The father said he was working as a delivery driver and his hours were 6.00am to 6.00pm and that he also had the children in his care on Thursday, Friday, Saturday and Sunday. The request was refused.
During his medical review at ATODS in April 2021, the father stated that he had ceased taking his antidepressants because he did not think they were doing anything for him. As previously noted, the father’s urine drug screens for the period December 2020 to May 2021 are positive for opioid substitution medication only. The father said he was only working three days a week so that he could see his children on two days and that he was nevertheless paying half X’s school fees and contributing to her books and school fees. This was untrue. Despite committing to pay half the school fees, the father has never done so. The father was nevertheless attending the gym three or four times per week.
In May 2021, during his medical review with ATODS the father described his mood as irritable. His insight and judgement were assessed as fair.
In mid-2021, the father was dealt with in court for offences in mid-2020 (including forgery of the prescription for benzodiazepines) and placed on probation for six months. The father did not inform ATODS of this conviction or court appearance.
In mid-2021, the father called his case manager to inform him that he had sustained an injury and had been prescribed a painkiller containing an opioid but did not want to take it. The father requested an increase to his opioid substitution medication dose which was refused. There is no medical evidence corroborating any injury at this time.
In September 2021, during the ATODS review, the father said he was in the process of buying another car and had plans to move out of his mother’s home. The father continues to live with his mother.
In October 2021, the father told ATODS he had not been attending appointments with ATODS due to work commitments. No notice of his inability to attend appointments was provided by the father. He simply failed to show up.
In February 2022, during an ATODS review the father stated that he had obtained a prescription in late 2021 for 50 tablets of a benzodiazepine to treat his anxiety. He stated that he had taken one tablet and thrown the rest out. The father was requested to submit to a urine drug screen.
Five days later, the father presented at ATODS for a urine drug screen. When told that he was supposed to have it the previous week, the father said he had completely forgotten.
About a week later, the father was informed that his take away doses of opioid substitution medication would be withdrawn if he continued taking benzodiazepines. The father complained of pain. There is no medical evidence corroborating any issue with the father’s pain.
In early 2022, the father called his case manager and stated that he had had a fall and had injured himself and was concerned that his opioid substitution medication dose would not be sufficient to address his pain. The father was encouraged to seek a medical review of his injuries. There is no evidence he did so and no evidence corroborating any such injuries.
In an assessment completed by the father’s case manager who took over in early 2022, the father denied any history of domestic violence or violent or aggressive behaviour. Further, he denied any impaired personal boundaries. This was untrue.
The father missed his appointment with his case manager at ATODS in May 2022.
In mid-2022, the father was convicted and sentenced to imprisonment, suspended for a number of months, and restitution for the offences of fraud in the three month period in late 2019, and failure to appear in accordance with an undertaking in 2020. The father did not inform ATODS of this conviction. The circumstances concerning this offence involved the father selling a motor vehicle to a person in New South Wales but failing to hand over the vehicle. The father repeatedly made excuses about why there was a delay in him providing the vehicle, including that he had to have surgery. Subsequent to the sale of the vehicle, the father obtained a personal loan from a third party lender and provided the vehicle as security. The father then sold the vehicle to another person and after receiving various excuses about why the father could not provide the vehicle, this purchaser arranged for its collection.
At his case manager review in mid-2022, the father described his mood as 5/10. The father did not inform his case manager he had been to court the day before. The father stated that he was not interested in transitioning to a long acting injection of opioid substitution medication at that time, but would wean off opioid substitution medication after the Family Court proceedings. The father indicated that he was still working for the delivery company.
In mid-2022, the father said his goal was to come off opioid substitution medication in the future. He denied taking any other medication, including benzodiazepines. The urine drug screens for April, May, July and August 2022 were negative for benzodiazepines. The father indicated that he was no longer working. He was nevertheless continuing to go to the gym three times a week.
In mid-2022, the father obtained advance doses of his opioid substitution medication, after telling the pharmacist that he needed advance doses of opioid substitution medication because he was going to be in Brisbane for two or three days at court. The father admits that this was untrue.
The father missed his appointment with ATODS in July 2022. The re-scheduled appointment in August 2022 was also missed. A phone call by his case manager to the dispensing pharmacy confirmed the father attended for his doses but was sometimes disorganised, attending the day after he had received his six take away doses.
In August 2022, the father said he had been to Brisbane for his court case. The matter was before a Brisbane judge on 20 July 2022 but all participants appeared by telephone. The matter was not back in Court until later in August 2022. During the ATODS case review in August 2022, the long acting injection of opioid substitution medication was again discussed, but the father said he was not interested at that stage.
As confirmed by the father’s case manager at ATODS, Mr EE, during his cross-examination, ATODS was completely unaware that the father had any criminal convictions. The father told Mr EE only that he had been charged with forging a prescription for a benzodiazepine. Mr EE was also unaware of the father’s history of family violence and threats to commit suicide.
Admissions by the father
The father made a number of admissions during cross-examination, including:
(a)That he has over a period of years done anything necessary to get opioids including stealing prescriptions, doctor shopping, lying to doctors;
(b)That he could not control his drug addiction and could not even talk to his parents about it;
(c)That he had lied to a pharmacist in mid-2022 when he said he needed to be in Brisbane for two to three days for his court case and that he did so in order to obtain opioid substitution medication doses;
(d)That he has never disclosed to ATODS that he has criminal convictions;
(e)That he did not tell Dr G, psychiatrist that he had made the complaint to the mother’s employer that was intended to cause her to lose her job;
(f)That he lied to ATODS in mid-2018 when he said he was still working at the medical facility;
(g)That he told ATODS that he had thoughts of self-harm by driving a car into the wall;
(h)That he told ATODS that his withdrawal symptoms in early 2019 were chest pain, sweating, anger and lethargy;
(i)When ‘doctor shopping’ he would say whatever was necessary to get a prescription;
(j)During late 2018 to early 2019 he was severely drug intoxicated and had very little control over his life;
(k)That he did not tell his GP, Dr AA that he had criminal convictions for fraudulent prescriptions;
(l)That he did not tell his GP that he was doctor shopping;
(m)That he realised by early 2019 that he had a serious drug addiction;
(n)That in late 2019, while part of the ATODS treatment program, he had a relapse and was taking various opioids;
(o)That he did not tell ATODS about this for some time;
(p)That he was addicted to pain medication as at late 2019;
(q)That he denied that he was addicted when the mother asked him in late 2019;
(r)That he gave the mother ‘the silent treatment’ for about a week, in response to her asking whether he was addicted;
(s)That he did not have any insight into how that treatment might affect the mother;
(t)That in the mother’s application for divorce, he did not contest the date of separation therein stated as 26 December 2019;
(u)That he has given several different accounts of when separation occurred;
(v)That he broke the mother’s trust with his criminal activities and his addiction;
(w)That when he sent the text message to the mother in early 2020, he accepts that it could reasonably be interpreted as a threat to commit suicide;
(x)That he has called the mother a “grub”, a “liar” a “disgrace”, and “disgusting”;
(y)That he said to X that the mother had kicked him out;
(z)That in early 2020 he told paramedics that he had thoughts of driving into a pole;
(aa)That he used information on the mother’s old phone against her;
(bb)That he forged the prescription for a benzodiazepine in mid-2020 changing the two or three tablets to 20 or 30 tablets and that he obtained the script from a doctor whom he had not previously been to, because he was ‘doctor shopping’ and he also told this GP that he could not get to see his own GP, which was another lie;
(cc)That he knew that if he ‘doctor shopped’ or forged scripts he would be deemed non-compliant by ATODS and end his program with them;
(dd)That he contacted Mr V pretending to be the mother, which was just plain malicious; and
(ee)That pretending to be the mother is the most appalling form of family violence.
Father’s mental health issues
As already noted in the City C Hospital and ATODS records, the father has a history of depression and anxiety and has been resistant to treatment. The evidence does not suggest the father is currently suffering from a major depressive disorder but that he may have particular feelings of depression and low mood when his needs are not met e.g. if the court outcome does not accord with his proposals.
The father’s opioid addiction is described by the ATODS doctors as a dependence syndrome, which he has not been successful in overcoming, despite being part of the ATODS program for three and a half years. There was some discussion during the trial about the father transitioning to long acting injectable doses of opioid substitution medication which the father could gradually, over several months, be weaned off. The father contends that once the stressors of the trial are over, he proposes to move to long acting injectable doses.
The usual trajectory appears to be that a participant in the ATODS program moves from supervised doses and take away doses (the father has been on one supervised dose per week with six take away doses for some time) to a monthly injectable at a much reduced dose after about a year. The father has been on opioid substitution medication for three and a half years without reducing his dose. The father’s dose has increased several times since he started on the program and he has been non-compliant in many ways over the past three and a half years e.g. taking benzodiazepines, taking other opioids, failing to attend appointments etc.
The problem for the father is that there will always be stressors of some sort in his life, such that there will always be a reason why he cannot wean himself of opioid substitution medication. In the father’s case, it seems he has a very long way to go before overcoming, or even substantially reducing, his dependence. In this context, I note that long acting injectable doses provide a dosage of opioid substitution medication per month, and the father is currently on a dose of approximately two thirds of that dosage per day.
During his interview with Dr G in late 2022, the father conveyed a number of inaccuracies which I consider pertinent to my determination, including the following:
(a)“There was a DVO in place for two weeks, but it got thrown out of court because the mother made up the allegations”. The police application for a protection order was withdrawn (not thrown out by a court), apparently as a result of text messages produced by the father which have not been produced during these proceedings. The father was using the mother’s old phone at the time and communicating by text pretending to be the mother;
(b)That he had been treated with opioid substitution medication for the last 18 months to two years. At the time of interview with Dr G, the father had been treated with opioid substitution medication for three and a half years;
(c)He denied any other suicide threats other than when he and the mother split up and he said “I can’t do this” and the mother called a colleague who came to the house. The hospital records dated early 2020 note the father’s admission and that he had been suicidal for the previous six months and it had been getting worse. The father also sent text messages to the mother in which he threatened to commit suicide;
(d)“I had an [opioid] addiction in 2018”, “It started when I [had an injury]”. This is the first time I have seen any evidence that the father’s addiction commenced as a result of this injury in 2018. The father’s first conviction for fraudulent prescriptions related to an offence committed in 2015, suggesting his addiction well and truly pre-dated 2018;
(e)That he was charged in 2018 in relation to “writing prescriptions on 5 occasions”. This statement completely understates his criminal history and what the father did disclose was portrayed in such a way as to suggest he was really not culpable e.g. in relation to the fraudulent sales and mortgage of his vehicle, the father said “I was trying to support my family”;
(f)That he had to leave his job at the medical facility because they found out about his addiction. The father’s employment was terminated because of his stealing of prescriptions and failure to inform his manager of his criminal convictions;
(g)He denied all domestic violence in the relationship and denied even ever getting frustrated in any way. This is completely at odds with the history provided by the mother (whose evidence I accept) and inconsistent with the father’s own version as reported in medical notes e.g. that he experienced anger and mood swings in 2018 and 2019 and in 2020 had homicidal thoughts about the mother which coincided with the children telling the mother that the father was going to hurt her; and
(h)He had been prescribed antidepressants for only a few days. The medical records detail the numerous occasions the father was prescribed antidepressants and his self-ceasing.
During the father’s interview with Dr D in mid-2022, he conveyed a number of inaccuracies which I consider pertinent to my determination, including the following:
(a)He denied any domestic violence in the relationship and said the relationship ended “because we grew apart”. The father specifically denied any physical, verbal or emotional abuse. This is a gross misrepresentation (at the very least) of the reason for the marital breakup. Quite apart from the mother’s evidence of family violence, even on the father’s case he concedes he was addicted to opioids and this made life difficult for the mother; and
(b)He specifically denied benzodiazepine abuse which is inconsistent with hospital records, drug screens, ATODS records and his criminal conviction relating to forging the prescription for a benzodiazepine.
During the father’s interview with Dr F, the family report writer, on 3 and 9 June 2022, he conveyed a number of inaccuracies that I consider pertinent to my determination, including the following:
(a)He said that he had an opioid addiction as a result of pain medication from an injury in 2016-2017. This is yet a further version that is unsupported by the body of other evidence before me;
(b)He had had no opioids beyond that prescribed since mid-2019, with the exception of a lapse at the time of separation. This is untrue e.g. the father admitted during cross-examination that in late 2019, while part of the ATODS treatment program, he had a relapse and was taking various opioids; and
(c)That he was only ever late returning the children by about five minutes. This is untrue. The table prepared by the mother indicates that there were at least 50 occasions during the period early to late 2021 when the father was substantially later than five minutes in returning the children.
Opinions from the experts

Counsel for the father said all she could possibly say to advance the father’s case for ongoing supervised time. Particular reliance was placed on what was submitted to be the three experts’ opinions that despite the risk, the father should spend supervised time with the children.
Firstly, it must be recognised that the ultimate determination of what order is in the best interests of the children, is a decision for the Court.[14] The opinion of an expert (even three experts) does not bind the Court.[15] Secondly, it should also be recognised that Dr G deferred to others on this question of whether or not long term supervision would be in the children’s best interests. Thirdly, Dr F made it clear that an assessment of risk by the Court would dictate what thereafter followed. In her report, Dr F stated that she could not recommend any increase in the time the children spent with the father until the issue of risk had been determined. The children were at that time not spending supervised time with the father but rather three nights per fortnight. During her oral evidence, the impression I gained was that until the father can demonstrate significant change then only supervised time should be ordered.
[14] In the Marriage of Hall (1979) FLC 90-713 at 78,821.
[15] Ibid.
To the extent that the experts might be said to support ongoing supervision, none of them addressed in their reports why long term supervision would be in the children’s best interests, and they were not cross-examined about it. I must say I was left with the distinct impression that far from recommending long term supervision, Dr D and Dr F were so alarmed by what they saw and heard, the reference to supervision should really be seen in the context of – “if there is to be any contact, it must be supervised”.
Does the mother have the capacity to facilitate a meaningful relationship between the children and their father?
(A) IF THE COURT FINDS THAT THE FATHER POSES AN UNACCEPTABLE RISK, WHICH CAN BE AMELIORATED BY SUPERVISION OR OTHER MEANS? OR
(B) IF THE COURT FINDS THAT THE FATHER DOES NOT POSE AN UNACCEPTABLE RISK?
This issue does not arise given my determination of the preceding issues.
However, if I am wrong in my determination, I find that the mother would find it very difficult to facilitate an ongoing meaningful relationship between the children and their father because of her understandable fear of him. If required to continue to present the children for supervised time it would come at great personal cost to the mother.
I accept the mother’s evidence that she feels that she is just waiting for something to happen. The mother does not feel comfortable going out alone and is constantly looking over her shoulder. She feels as though she is a “sitting duck” and is “hypervigilant”. The mother and Mr L have installed security cameras at their home as a consequence of the threats made directly and indirectly by the father. At times, the mother believed that her home was “bugged” because she would receive text messages from the father referring to something that she was doing. The mother is constantly checking her rear view mirror while driving, worried that she will see the father. No one should have to live in such a state of fear, and as the mother said - “you can’t take back what has been said. … you can’t take back the threats to myself. You can’t take back the words that the kids have seen and heard, and they have clearly been told themselves. You can’t take back that psychological damage for them. I sure as hell can’t undo it”.
On balance, I conclude that the mother would not have the capacity to facilitate a meaningful relationship between the children and the father without it having a detrimental impact on her, which would not be in the best interests of the children.
The impact on the children, including the likely effect of any separation from a parent, resulting from a further change in the children’s circumstances?
While the children appear to enjoy the time spent with the father during supervised time, I do not propose to make an order for long term supervision for the reasons earlier discussed.
The children will no doubt grieve the loss of their father but the Court’s primary obligation is to ensure that the children can have a safe relationship with a parent in circumstances such as these, and I cannot be so satisfied.
The children may well relocate with their mother and Mr L and that will inevitably involve some further disruption and adjustment for them, but they will be ably supported by the mother and Mr L who have consistently put the children’s interests at the forefront. The mother may have a chance of living her life without constantly checking her rear view mirror for the father. That can only be a good thing for the children.
The children will need to be reassured that the loss of the father from their lives is not their fault. One can only hope that the father is able to turn his life around and address the serious findings made against him. This will be a long process and will require a very experienced and skilled team of professionals. If the father pursues this path, it would no doubt be helpful for his treating practitioners to have a copy of these reasons and all of the expert reports. Whether the father is able to establish a significant change in circumstances at some future time is a matter for future determination.
As an order for sole parental responsibility will made:
(A) SHOULD THE MOTHER CONSULT THE FATHER ABOUT ANY LONG TERM DECISIONS TO BE MADE WHILST RETAINING ULTIMATE DECISION MAKING?
(B) SHOULD THE FATHER RECEIVE INFORMATION REGARDING THE CHILDREN’S HEALTH AND EDUCATION DIRECTLY FROM THE PROVIDERS OR THROUGH THE MOTHER?
It is common ground that the mother should have sole parental responsibility for the children.
I do not see any benefit for the children in requiring the mother to continue to have to consult with the father about their long term interests, given the findings I have made in this case.
However, if the father provides the mother, via her lawyers, with a post office box number and address, I will include an order that the mother provide the father with information about the children’s health and education. The mother will be permitted to redact any information that might identify where the mother and children are living or where the children are attending school. In this way, the father will be kept informed of some matters concerning the children which may be in the children’s interests if they elect to contact the father when they reach maturity.
what parenting order should be made?
In circumstances where I have found that the father poses an unacceptable risk of harm to the children which cannot be ameliorated by supervision, I propose to order that the mother have sole parental responsibility, that the children live with her and spend no time and have no communication with the father. Such an order is in the best interests of the children in the circumstances of this case.
I will include the personal protection injunctions sought by the mother and enable her to obtain passports for the children and travel internationally with the children without first obtaining the father’s consent.
The ICL included in his minute of order a provision granting the mother leave to provide a copy of the order to the children’s school, the police, extra-curricular activity providers etc. and to provide a copy of the family report and psychiatric assessment and these reasons to any counsellor the children may attend upon. Section 121 of the Act prohibits the dissemination of documents identifying persons involved in proceedings in this Court to the public or a section of the public unless coming within a number of listed exemptions. In my view, the mother does not require leave to provide a copy of the order to the authorities proposed nor to provide a copy of the documents identified to the children’s counsellor.
Micellaneous
Objection to Dr D’s report and parts of Dr F’s report
As a preliminary matter, objection was taken to two reports relied upon by the ICL, namely Dr D’s report dated 2 June 2022 and parts of Dr F’s report dated 11 June 2022. I ruled in favour of the reports being received into evidence and indicated I would provide reasons at a later time. These are my reasons.
The objection to Dr D’s report raised several matters including:
(a)Dr D was not appointed as a single expert by the parties under the applicable rules, but rather engaged solely by the ICL;
(b)Dr D was assisted in her report by Ms E and no notice of her involvement was provided beforehand, nor even her curriculum vitae until requested;
(c)There were connection difficulties given that the interviews were conducted via electronic means;
(d)The report does not identify the extent of Ms E’s involvement or differentiate between opinions of Dr D and Ms E;
(e)Questions posed on behalf of the father in writing after the release of the report were initially not responded to and when a response was received it was inadequate;
(f)The process of administering and interpreting of psychometric testing and apparent reliance upon the results is inadequately explained;
(g)Apparent acceptance of the allegations made by the mother;
(h)Section 55 of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires that evidence be relevant and it can only be relevant if it could rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding;
(i)Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about which the opinion is expressed;
(j)While s 79 of the Evidence Act provides an exception to the opinion rule based on specialised knowledge. Makita (Australia) Pty Ltd v Sprowles[16] (“Makita”) sets out certain principles that must be complied with when relying upon ‘specialised knowledge’, namely:
(i)It must be agreed or demonstrated that there is a field of "specialised knowledge";
(ii)There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
(iii)The opinion proffered must be "wholly or substantially based on the witness's expert knowledge";
(iv)So far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way;
(v)It must be established that the facts on which the opinion is based form a proper foundation for it; and
(vi)The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight; and
(k)Section 135 of the Evidence Act provides the Court with a general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading, or cause or result in an undue waste of time;
[16] [2001] 52 NSWLR 705 at [85].
While some of the criticisms of Dr D’s report are well made, e.g. failing to identify, at times, the factual basis upon which an opinion was based, any prejudice suffered by the father was overcome by the father having obtained his own psychiatric report from Dr G and being able to challenge Dr D through the process of cross-examination. The father also had the opportunity to send a list of questions to Dr D prior to the commencement of the trial, some of which were answered directly. While the appointment of Dr D may not have accorded with the rules relating to the appointment of a single expert, the father took no objection to the process until after the release of Dr D’s report.
Parenting proceedings are not strictly inter partes[17] as they are not enforcing a right of a parent but rather are concerned with making an order that is in the best interests of children. The risks identified by Dr D were of a very serious nature and not ones that could be ignored by the Court, i.e. in refusing to receive her report. Challenges to the weight that could be placed on the report was a more appropriate way to address any shortcomings of her report.
[17] M v M at 76; ZP v PS (1994) 181 CLR 639 at 647.
Objection was also taken to paragraphs 69, 71, 72, 73, 74 and 76 and the last sentences of paragraphs 70 and 75 of Dr F’s report on the following bases:
(a)Relevance;
(b)Failing to meet the requirements of an expert’s report set out in Makita v Sprowles;
(c)The probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the father.
Dr F’s report can rightly be criticised for the infelicitous use of language (at times), which might suggest the blurring of the role of expert with that of advocate. However, in my view, the more appropriate way to deal with the particular objections was to challenge the weight to be placed on the particular paragraphs and the report in general.
Costs
The commencement of the trial was delayed until after lunch on the second day. The delay arose because the father was granted leave to prepare a further affidavit addressing matters that should have been included in his trial affidavit. The father sought and was granted this indulgence by the Court.
The mother applies for her costs thrown away in the sum of $13,145 in accordance with the schedule of costs set out in the written submissions on costs filed 2 November 2022.
The mother has privately funded these parenting proceedings. The mother’s costs already incurred and estimated for a five day trial were $101,000. The trial did not finish in the allocated five days because of the delay and a further day was allocated.
The father received funding for the trial pursuant to the Commonwealth Family Violence and Cross Examination of Parties Scheme due to the ban on cross-examination pursuant to s 102NA of the Act, arising as a result of the serious allegations of family violence made by the mother against the father.
The father is currently working on a casual basis and receives Centrelink benefits. He is hoping to obtain more work in the future.
The quantum sought by the mother is challenged by the father, on the basis that not all of the preparation claimed was lost and that if costs are awarded they should be on a party and party basis not solicitor and client basis. It is submitted that an appropriate quantum would be $5,592.76.
Section 117(2A) of the Act sets out matters to which the Court must have regard when determining a costs application. They are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
When considering the factors set out in s 117(2A) of the Act, it is sufficient for one factor to be present.[18]
[18] Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294 at 301, [41].
Impecuniosity, of itself, is not a bar to making a costs order.[19]
[19] Nada & Nettle (Costs) (2014) FLC 93-612 at 79,589, [11]; see also Lenova & Lenova (Costs) [2011] FamCAFC 141 at 3, [12].
An additional source of power to award costs in an appropriate matter is to be found in s 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which simply empowers the Court to award costs against a party and that the costs awarded be assessed on an indemnity basis or otherwise.
There is an additional mandatory requirement created by s 68(4) of the FCFCOA Act which requires the Court to take into account any failure to comply with the duty imposed by ss 68(1) or (2), which require the parties and the lawyers for the parties to conduct the proceedings in a way that is consistent with the overarching purpose of the family law practice and procedures provisions of the FCFCOA Act. The overarching purpose is set out in s 67 and requires, among other things, the proceedings to be conducted as “quickly, inexpensively and efficiently as possible”.
Part 12.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) deals with ‘orders for costs’ and, among other things, empowers the Court to set a time for payment.
Part 12.6 of the Rules deals with ‘calculation of costs’ and provides as follows:
12.17 Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
(2)If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.
(3)In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre‑action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
Rule 12.08(2) of the Rules (referred to in r 12.17(3)(b)) provides as follows:
(2)In considering whether a party’s legal costs have been fairly, reasonably and proportionately incurred, regard must be had to all relevant matters including, but not limited to, whether a lawyer representing the party, a lawyer representing any other party, or any self‑represented litigant has:
(a)complied with all relevant rules and orders of the court, including requirements that documents be filed or provided to other parties by a given date; and
(b)acted reasonably in raising, pursuing or contesting a particular allegation or issue; and
(c)made reasonable efforts, subject to the client’s instructions, to resolve the dispute through negotiation, mediation or arbitration; and
(d) made reasonable efforts to narrow the issues in dispute; and
(e)filed no more interlocutory applications than are reasonably necessary in the circumstances of the proceeding; and
(f)filed no more affidavits or other documents than are reasonably necessary in the circumstances of the proceeding.

When determining an application for costs, the Court may make such order as to costs as it considers just. An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[20]
[20] Penfold v Penfold (1980) 144 CLR 311 at 315.
In my view, the father should pay the costs of the mother thrown away. I propose to reduce the sum sought by the mother as I do not consider the preparation costs were thrown away to the extent claimed. I will fix costs in the sum of $10,000 payable within 90 days.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 8 December 2022

File number(s):	TVC768 of 2021
Judgment of:	CAREW J
Date of judgment:	8 December 2022
Catchwords:	FAMILY LAW – PARENTING – unacceptable risk of harm to children – where father has long history of deceptive conduct and addiction to opioids – where father has history of family violence including threats to kill the mother – where threats made in front of children – where the Court orders sole parental responsibility to the mother with no time and no communication with the father – where long term supervision is not appropriate. FAMILY LAW – COSTS – where commencement of trial was delayed to allow father to prepare affidavit addressing matters that should have been included in trial affidavit – where trial did not finish in allocated five days as a result – application for costs thrown away – costs ordered in the fixed sum of $10,000 payable within 90 days
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia Act 2021 Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC93-637 Briginshaw v Briginshaw (1936) 60 CLR 336 Eastley & Eastley [2022] FedCF1A 101 Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294 Isles and Nelissen [2022] FedCFamC1A97 Johnson & Page (2007) FLC 93-344 Lenova & Lenova (Costs) [2011] FamCAFC 141 Makita (Australia) Pty Ltd v Sprowles M v M (1998) 166 CLR 69 Nada & Nettle (Costs) (2014) FLC 93-612 N and S and the Separate Representative (1996) FLC 92-655 Penfold v Penfold (1980) 144 CLR 311 ZP v PS (1994) 181 CLR 639
Number of paragraphs:	196
Date of hearing:	17-21 October 2022, 3 November 2022
Place:	Heard in Townsville, delivered in Brisbane
Counsel for the Applicant:	Mr M Fellows
Solicitor for the Applicant:	Lee Turnbull & Co
Counsel for the Respondent:	Ms C Dart
Solicitor for the Respondent:	Stevenson & McNamara Lawyers
Counsel for the Independent Children's Lawyer:	Mrs R C Bassano
Solicitor for the Independent Children's Lawyer:	Murray & Lyons Solicitors

TVC768 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MACPHERSON Applicant
AND:	MR HAMISH Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	8 December 2022