McDowell & Redfield - [2023] FedCFamC2F 1307

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McDowell & Redfield [2023] FedCFamC2F 1307

File number(s): PAC 4725 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 13 October 2023

Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DA, 65DAA

Cases cited:
Banks & Banks [2015] FamCAFC 36

Fitzwater & Fitzwater [2019] FamCAFC 251

Isles v Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

Jones v Dunkel [1959] HCA 8

M & M (1989) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

McDowell & Redfield [2020] FCCA 2670

MRR v GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 330

Date of last submission/s: 1 May 2023

Date of hearing: 17-19 April 2023, 1 May 2023

Place: Parramatta

Counsel for the Applicant: Mr Cohen

Solicitor for the Applicant: Gonzalez & Co

Solicitor for the Respondent: Mr Prakash of Prakash Lawyers

Counsel for the Independent Children's Lawyer: Ms Dalrymple

Table of Corrections

14 May 2024 At [49] the words “ The phrase “unacceptable risk” does not appear anywhere in the Act. However are deleted.
ORDERS

PAC 4725 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MCDOWELL

Applicant

AND:
MR REDFIELD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X born in 2020 (“child”), provided that the mother:
(a)Notifies the father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
(i)Proposed decision about which schools the child shall attend;
(ii)Proposed decision about elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child;

(b)Ensure that such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency; and
(c)Take into consideration any views expressed by the father in respect of such proposed decisions.

2.The child shall live with the mother.
3.The child shall spend time with the father:
(a)Commencing on the first Saturday after these orders and each alternate Saturday thereafter, from 9am until 6pm;
(b)Each Wednesday from after daycare, school, or from 3:30pm (if a non-school/daycare attendance day) until 6pm; and
(c)At such other times as agreed to by the parents in writing.

4.The child shall have videocall communications with her father as agreed between the parents in writing and failing agreement from 6pm until 6:30pm each Monday. For the purpose of such communications, the father shall initiate the call to the contact number nominated by the mother and the mother shall ensure the child is available for the communication.
5.The parents shall communicate in relation to parenting issues concerning the child via text message and email only, unless otherwise agreed to between the parents in writing.
6.The parents shall keep one another informed in writing of their mobile phone number and email address and shall advise the other parent within 48 hours of a change in such details.
7.The parents shall make arrangements at the child’s daycare, preschool or school to ensure that both parents are able to obtain the following information and documents at their own expense:
(a)A copy of all school reports and school photo order forms for the child;
(b)Notification for school activities, such activities being those that parents are ordinarily entitled to or invited by the school to attend; and
(c)Notification of parent/teacher nights.

8.The parents shall ensure that the other is advised of the following information in relation to the child:
(a)Any serious medical problems, severe illnesses and/or hospital admissions suffered by the child whilst she is in their care as soon as possible;
(b)Any medication that has been prescribed to the child and the reason for such medication; and
(c)Any treatment that is required to be undertaken for the child.

9.Each of the parents to these proceedings be restrained from:
(a)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father, or any other member of the parent’s respective households;
(b)Denigrating any of the other parent’s or member of the other parent’s families in the presence or hearing of the child and each parent shall do all acts and things reasonably necessary to prevent any other person doing so;
(c)Discussing these proceedings or any issues arising out of these proceeding with the child or permitting any third party to do so;
(d)Making critical or derogatory remarks on social media, in relation to the other parent or referring in any way to the proceedings;
(e)Consuming alcohol in excess of the legal driving limit when they have the child in their care and for the 12 hours prior to the child coming into their care; and
(f)Using illicit substances or prescription medication that they do not have a valid script for when the child is in their care and for the 72 hours prior to the child coming into their care.

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

These are final parenting proceedings concerning the parties’ child, X born in 2020. The applicant mother Ms McDowell (“mother”) and respondent father Mr Redfield (“father”) separated on a final basis in early to mid-2020 after a short relationship that commenced in 2019.
This is a particularly complex and unfortunate case in which both parents are, to varying extents, a risk to X. Both parents have problems with substance abuse, both parents have criminal histories, both parents have less than ideal parenting capacities, and both parents have less than perfect mental health. Further, if the relationship between the parents could be described in one word, ‘dysfunctional’ and ‘conflictual’ would be prime candidates. The Court has been put in the unenviable position of doing what the mother and father seem incapable of doing, making a decision apropos of X’s care arrangements that are in her best interest.
X has been living with the mother and spending time with the father during the day on Saturdays, Tuesdays, and Thursdays since 19 April 2023, being the third day of the final hearing, when the Court made interim orders to that effect.
The Court notes that the trial affidavits, which both the mother and father rely on in these proceedings and sworn/affirmed in September 2022, appear to have been, as is often the case in proceedings of this nature, a culmination and combination of previous affidavits sworn/affirmed by each respective party and filed in the proceedings. Where this becomes an issue is in regard to the consistency of the evidence. In this case, the Court has had to deal with evidence which is at times illogical and contradictory.
ISSUES FOR DETERMINATION
The mother’s case is that the father has been violent, coercive, and controlling towards her, that he is incapable of communicating with her, that he has substance abuse issues, that his mental health is not stable, and that he has in the past and may continue to be involved in serious criminal activity which puts X at risk of harm. Despite the risks, the mother says that it is in X’s best interest to have a meaningful relationship with the father. Subsequently, the mother seeks orders that she have sole parental responsibility, that X live with her, and that X spend time with the father as follows:
(a)Each alternate weekend from Saturday at 10am until Sunday at 4pm;
(b)During the Christmas and Easter period, on Father’s day and on X’s birthday;
(c)That until X commences year 2, the above time shall occur in the home of the paternal grandmother, including X staying there overnight and in the presence of the paternal grandmother. That the paternal grandmother shall not leave the father alone with X in excess of one hour;
(d)At other times as agreed by the parties in writing; and
(e)When X commences attending school, in addition to the above time, one half of each NSW school holiday period.
The mother also seeks various restraints on the father, including, that the father be restrained from using any illicit substances or alcohol whilst X is in his care or for a period of 24 hours prior to his time with her, that the father be restrained from allowing X to be in the presence of the individual Mr M, and that the father be restrained from allowing any person who has a criminal history or engaged in criminal activity to be in the presence of X. The Court notes that if the final restraint were to be made, the father would be restrained from allowing the mother to be in the presence of the child.
The father’s case is that, whilst both parents have engaged in behaviour that is not in X’s best interests in the past, both parents’ parenting capacity has improved, and that X has developed a strong relationship with the mother, the father, and the paternal family. He says that X is not at an unacceptable risk of harm when in the care of either parent, and that both parents have the infrastructure and supports available to them to care for X. The father subsequently seeks orders that the parties have joint parental responsibility, and that X spend equal time with the parents on an alternating Sunday – Thursday and Thursday – Sunday basis, and additional time on special occasions with each parent. The father also seeks orders that the mother engage in psychological services and the father engage in drug and alcohol counselling. He also seeks an injunction that both parents be restrained from drinking alcohol 12 hours prior to X being in their care or taking any illicit substance 24 hours prior to X being in their care. Finally, he seeks an order that each party provide urinalysis tests every six months for the next five years.
The Independent Children’s Lawyer’s (“ICL”) case is that the Court should be concerned about the risks to X when in the care of both parents, but that the risks when in the care of the father are significantly greater. The ICL also says, adopting the expert opinion of the family report writer, that a week about arrangement or other equal time arrangement is not in X’s best interests.
At the beginning of the hearing, the ICL sought orders that the mother have sole parental responsibility, that X live with the mother and spend regular weekend time with the father. At the conclusion of the parties’ evidence in the proceedings, the ICL handed up a minute of order which sought orders that the mother have sole parental responsibility, that the child live with the mother and that the child spend time with the father each alternate Saturday from 9am until 6pm, each Wednesday from after daycare, school, or from 3:30pm until 6pm and at such other times as agreed by the parents in writing.
As such, the key issues for the Court’s determination are:
(a)Whether X is at an unacceptable risk of harm with the mother or the father;
(b)Whether an equal time arrangement is appropriate or that X should live primarily with one parent;
(c)If there is an unacceptable risk of harm to X while spending time with the father, whether such time, if any, can occur overnight and without supervision;
(d)What order for parental responsibility is appropriate in the circumstances; and
(e)Whether it is in X’s best interests to make the various restraints and orders for drug testing sought by the parties.
PROCEDURAL & CARE HISTORY
The parties commenced a relationship in early 2019 and they began cohabiting together by the end of 2019 in the father’s residence in Suburb D, NSW. X was born in 2020 and she was cared for by both parents at the father’s residence. In or about April 2020, the father says the parties separated but continued cohabiting under the one roof until July 2020. The mother says they separated in July 2020 when the mother moved out of the father’s residence and moved to rental accommodation in Suburb N. The actual date of separation is not particularly relevant.
X lived with the mother at the mother’s rental property and spent time with the father from the time the mother left the father’s residence in July 2020 until September 2020.
In late 2020, the mother was arrested for drink driving whilst X was in the car with her. The father attended the police station where the mother was being held and collected X, and X thereafter remained in the care of the father. Although, during this period, X slept in the house of the father’s brother, Mr O, and sister-in-law, Ms P, which is located on the same property as the father’s residence.
On 9 September 2020, the mother filed an initiating application for final orders and interim orders. The mother sought, inter alia, orders that X live with her, that the father return X to her and, failing compliance, that a recovery order be issued for the delivery of X to the mother.
The mother sought that the interim application be heard on an urgent basis and the Court heard the application on 14 and 22 September 2020. The Court delivered interim judgment on 24 September 2020 and ordered, inter alia, that the child live with the father and spend regular time during the day with the mother. The interim judgment can be found at McDowell & Redfield [2020] FCCA 2670 and should be read together with these Reasons for Judgment.
It appears that there was an initial, short-lived, period where the interim orders were complied with.
On 16 October 2020, the father filed an application in a case seeking orders, inter alia, that the spend time with orders of 24 September 2020 be suspended, and that the mother spend supervised time with X for two hours each week at a contact centre.
On or about 30 October 2020, the father withheld X from the mother’s care.
On 6 November 2020, the mother filed an application in a case seeking, on an urgent basis, that the father return X to her and, in the event that he fails to do so, a recovery order be issued for her return. The mother also sought orders that the father’s time with X be for a period of two hours a week at a supervised contact centre.
Both parties made allegations of unacceptable risk when X was in the care of the other.
On 25 November 2020, the Court heard the mother’s application in a case and made, inter alia, orders that the father return X to the mother for time from 6pm on 25 November 2020 to 6pm on 26 November 2020, inviting the Department of Communities and Justice (“Department”) to intervene in the proceedings, that the parties undergo drug hair follicle testing, and that the paternal grandmother enter into an undertaking that she will be in substantial attendance when X is in the father’s care and that she report any concerns relating to the father’s use of illicit substances to the Department and to all parties. Importantly, the interim orders were to continue.
Again, compliance with the interim orders and the 25 November 2020 orders was short-lived.
On 28 December 2020, the mother failed to deliver X to the father in accordance with the 25 November 2020 orders.
On 30 December 2020, the father filed an application in a case seeking a recovery order and that the mother’s time be suspended until further order.
On 27 January 2021, the court made a recovery order for the return of X to the father and X was returned to him.
For a short period from January 2021, upon the return of X to the father, until March 2021, the parties appear to have complied with the interim orders.
On 8 March 2021 the Court made orders, inter alia, for the preparation of a family report.
From at least June 2021, the mother and the father came to an agreement as to the care of X. In summary, on a four-week rotating basis, X’s care arrangements were as follows:
(a)Week 1:
(i)Sunday afternoon to Thursday morning with the mother; and
(ii)Thursday morning until Sunday afternoon with the father;
(b)Week 2:
(i)Sunday afternoon until Tuesday morning with the mother;
(ii)Tuesday morning until Friday morning with the father; and
(iii)Friday morning until Sunday afternoon with the mother;
(c)Week 3:
(i)Sunday afternoon until Thursday morning with the father; and
(ii)Thursday morning until Sunday afternoon with the mother;
(d)Week 4:
(i)Sunday afternoon until Tuesday morning with the father;
(ii)Tuesday morning until Friday morning with the mother; and
(iii)Friday morning until Sunday afternoon with the father.
The parents prepared proposed consent orders to this effect in June 2021, but they were never sought to be made by the Court, seemingly because the ICL did not consent to them. A copy of those proposed orders signed by the mother and the father was tendered at the final hearing.
From June 2021 until 19 April 2023, the parties have generally kept to the informal agreement (referred to at [28] above) as to X’s care arrangements. At times the parties have been flexible and have accommodated the work and other requirements of the other parent.
On 2 June 2021, the father withdrew his application in a case filed 16 October 2020.
On 9 December 2021, the family report dated 25 November 2021 was released to the parties.
In mid-2022, the father was injured by an assailant unknown to him in his own home when X was in his care.
On 23 September 2022, the matter was listed for a compliance check, and it was set down for final hearing on 17, 18 and 19 April 2023.
On 1 November 2022, the mother filed an application in a proceeding seeking orders that the 24 September 2020 interim orders by suspended, that X live with her and spend time with the father for two hours per week at a supervised contact centre. The basis of the application was the 2022 assault.
On 1 November 2022, the mother’s application in a proceeding was stood over to the final hearing.
The matter was heard on 17, 18 and 19 April 2023. The hearing was unable to be completed on 19 April 2023 and it was marked part heard and listed for closing oral submissions on 1 May 2023.

On the afternoon of 19 April 2023, the Court heard the mother’s application in a proceeding filed 1 November 2022. The Court made interim orders discharging the interim orders of 24 September 2020 and, pending further order, that X was to live with the mother and spend time with the father each Saturday, Tuesday and Thursday during the day.
On 1 May 2023, the Court reserved its judgment.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child who is the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] See Slater & Light [2011] FamCAFC 1, [45].
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520, [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92, [121] (“McCall”).
[3] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4, [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that discussion does not mean consideration.[5]
[5] Banks & Banks [2015] FamCAFC 36.
The phrase “unacceptable risk” does not appear anywhere in the Act.[6] However, the “provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.”[7]
[6] Isles v Nelissen [2022] FedCFamC1A 97, [58] (“Isles v Nelissen”).
[7] Isles v Nelissen [59].
As the Full Court held:[8]
The assessment of risk is an evidence-based conclusion… The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
[8] Isles v Nelissen [85].
In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[9] The High Court has stated that “the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…”.[10]
DISCUSSION & FINDINGS
[9] See for example the discussion in Johnson & Page [2007] FamCA 1235, [62]-[74].
[10] M & M (1989) 166 CLR 69, [25].
Background
The father was born in 1985 and is 38 years of age.
The mother was born in 1995 and is 27 years of age.
The father was diagnosed with a medical condition in 2013 and takes prescribed medication to manage the condition. The medication is self-administered by a needle. Relevantly, the father says that he has never used any other illicit drug that is administered intravenously during the time the parties lived together or since.
The mother has been diagnosed with complex Post Traumatic Stress Disorder (“PTSD”) that is managed by various medications including prescribed cannabis oil.
The Father’s Living Arrangements
The father lives on a rural property in Suburb D NSW (“Property”) where there are three detached residences. The father occupies one of these houses (“the House”), the paternal grandmother Ms B (“paternal grandmother”) occupies the second, and Mr O, Ms P, and their three children, occupy the third. The residences are a maximum of 50 metres apart from one another.
Until about mid-2020, the father resided in the House with a friend, Mr M, a flat mate for well over a decade. The father deposes that Mr M was like a brother to him. Mr M initially resided in the House when the mother moved in, but later moved out due to a disagreement with the mother at some point in mid-2020. In or about 2021, Mr M was sentenced to imprisonment for offences. In cross-examination, the father said he had no idea about Mr M’s criminal involvement prior to his convictions and that Mr M had not lived in the House for at least 12 months prior to these convictions.
The father’s extended family appear to be very close and tight knit. When X is in the care of the father, the whole family assist in caring for X. X regularly sleeps in the other residences on the Property rather than the House.
Prior to the Relationship
In 2013, the father was sentenced to imprisonment for offences, the sentence commenced in 2010. The father was released from prison in 2015. The father says that he now has no contact with his associates from the time of this offending and “lead[s] a completely different life”. The pre-sentence report prepared in those criminal proceedings stated that the father had a drug habit and owed “some very bad people a lot of money” and this went some way to explaining his offending. In cross-examination, Ms P said that the father hid his offending from his extended family, including her.
The father completed drug and alcohol counselling whilst incarcerated, however this did not prevent him from using drugs again upon his release.
The father has a child from a previous relationship, a daughter named Q, born in or about 2006. Q was 4 years old when the father was incarcerated, and the father currently has no contact with Q. After being released from prison the father commenced proceedings to have time with Q, however these proceedings ended with the father not having any time with her. The father hopes to re-establish a relationship with Q in the future.
After the proceedings relating to Q, the father appeared to have suffered somewhat of a mental health crisis and used illicit drugs daily for about a month. Thereafter, the father says that until late 2020, he took drugs recreationally on the weekend. He says he has not taken any drugs since late 2020. The father’s evidence is that his drug use was mainly a coping mechanism for other stressors in his life.
In 2016, the father was sentenced for offences and fined $600.
In 2018, the mother was sentenced for offences and driving under the influence of an illicit drug, was fined $3,300, and had her licence disqualified for a period of months.
On or about late 2018, the father had a seizure which resulted in him presenting to the emergency department. The hospital records state that the father had, prior to the seizure, drunk approximately 12 standard drinks of alcohol and taken illicit drugs, which he would take on a regular basis. The records also state that the father’s friends had told hospital staff that he would often pass out after such activities and that his brother had told staff that he had a similar episode approximately one year ago after taking an unknown drug. The paramedic records indicate that the friends had said that the father had taken illicit drugs and “a few beers”.
In cross-examination, the father stated that he did not recall going to hospital and that although he may have had a seizure, it was not because of his illicit drug use. Notwithstanding, the father stated that he did not remember the incident at all and that he could not remember if he told the hospital if he had drunk alcohol or taken drugs.
The father was also cross examined on materials that suggested that the father had attempted serious harm in or about 2018. The father gave evidence that he recalled a time when he drove to a location and called a friend and said that he was psychologically struggling at the time.
The Relationship & Cohabitation
The mother and father commenced a relationship in early 2019.
The father says that when they commenced their relationship, the mother told him that she did not have a driver’s licence due to drink driving. The mother says that she did not have a licence at the time but that it was because she had received too many demerit points and not because of drink driving.
The father says that the mother drank and smoked marijuana every day when they first met. He says she would drink from the middle of the day into the night and smoked continually from 4pm every day into the night, smoking about an ounce of marijuana over two nights. The mother says she would only drink occasionally throughout the relationship. She says she would smoke marijuana occasionally but never when X was in her care and that the father gave her the marijuana. The father denies this. The father says he confronted the mother about her marijuana use and that the mother told him to leave her alone.
The mother fell pregnant with X after the commencement of the relationship. In 2019, well into her pregnancy, the mother moved into the House. X was born in 2020. The father took two weeks off work after X was born.
At some point after the birth of X, the mother was diagnosed with post-natal depression and attended counselling. The father says that the mother said to him, in front of family, that “you’ve wrecked my life! I should have never had her. I should have had an abortion!”
The father says the mother struggled to cope after the birth of X, particularly with X waking at night to be fed. He says the mother would prop a bottle up on a pillow in X’s mouth and then go back to sleep. The mother says the father would sleep on the couch and was not happy if he was woken by X. The father said in cross-examination that he slept on the couch because he was a loud snorer and sometimes woke to tend to X.
The mother says that following X’s birth, she was X’s primary carer and tended to all her needs. The mother says that during the relationship, the father would not actively care for X, he would not change her nappy, bathe her, feed her, or attend medical appointments for her. She says that the father did not ever have X alone following her birth. Under cross-examination, the mother maintained that the father was not at all involved with X’s care, that he stayed in a separate bed and never fed or did anything with X. Furthermore, the mother said that she would not believe that the father would have spent time alone with X. The father denies all this and says he helped care for X and that the caring responsibilities were shared. The father recalled changing X’s nappies because they were bright green, and sticky and he used to “gag all the time” but still did it.
The mother deposes to one instance when the father was meant to have cared for X overnight and, when the mother returned home, there was another woman in the House, there were drugs everywhere and X was at the paternal grandmother’s house.
The mother says that the father would often be in his shed rather than in the House until about 4am. She believes he was using drugs. She says he would not spend time with her or X and would not eat dinner with them when he was on drugs. The father denies this and said, in cross-examination, that he would only sometimes go to the shed. Under cross-examination, it was put to the mother that she did not know that he was not eating or that he was doing drugs. The mother admitted this was the case but said that the father would not eat the dinner she made him.
The mother also says that many people frequented the House to buy drugs from the father and that she saw the father selling drugs. The father denies this.
The mother alleges that the father is involved in bikie gangs and that he would attend ‘clubhouse meetings’ at night and would not arrive home until early the next morning. The father denies this. In cross-examination, the mother admitted that she had never actually seen the father go to these meetings and had just assumed he went. The father, in cross-examination, said that he had never been involved or joined a bikie gang but had friends who were involved.
In early 2020, the father says the mother was drunk and tried to drive away with X. He says he took her car keys off her.
The mother says that when X was weeks old, the father packed X’s belongings in a bag and told the mother he was taking her. The mother then told the father to give her X and then the mother says the father grabbed her by the hair and throat and dragged her down the hallway. In cross-examination, the father denies this ever happened.
The mother alleges an instance of serious physical violence around the time X was four weeks old:
We were arguing. [Mr Redfield] was drunk and [Mr Redfield] grabbed my neck with one hand, I dropped to the floor to try and make him stop and he grabbed me by the hair and dragged me down the hallway from the kitchen to the front door area. I got loose and went back down the hallway to the kitchen, when I got there [Mr Redfield]’s mother was there as she had come up from the [flat] and she pinned me onto a chair. She sat on top of me and held my wrists down. During the time I was screaming for help and for someone to call the police. My friend [Ms R] was at the house at the time and called the police. The police attended 25 minutes later. The police allowed me to leave the home with [X] after discussions where they tried to have me leave [X] with [Mr Redfield] who was drunk and had just physically abused me. I called the police the following day and sought an ADVO and they told me that the officer in charge needed to come back out and take a statement and he was off for a few days. That officer never contacted me.
It is the father’s evidence that on or around early 2020, the father’s brother, Mr S, visited the Property with his daughter aged 3 years to visit X. Mr S was holding X and Mr S’s daughter was holding the bottle feeding her. The father says when the mother saw this, she became enraged and tried to grab X from Mr S. The father then grabbed the mother to remove her from the situation and the paternal grandmother approached the mother to calm her. The father says the mother then tried to punch the paternal grandmother. The police were then called.
It is unclear whether the parties are talking about the same incident.
A few days after this incident, the mother admitted herself to the mental health unit at Region F Hospital. She underwent counselling and Ms P attended with her. The mother was prescribed medication. The father says she initially took the medication but then stopped, which coincided with her moods deteriorating. The mother says that she presented at the triage and assessment centre at the Region F Mental Health Unit and spoke with a psychologist to adjust her medication. She says she was referred to an outpatient postnatal mental health clinic for counselling. The mother says she only went to the hospital because the father and the paternal grandmother were telling her she should.
After this, the father says the mother would leave the House at night and during weekends, leaving him to care for X or, if he was unavailable, the paternal grandmother or Ms P. He says that often the mother would leave for the whole weekend and that he would feed X with a bottle at night. Under cross-examination, the mother said that if she went out on the weekends, X would be cared for by the paternal grandmother or Ms P and never by the father himself. When it was put to the mother that she would not actually know who cared for X when she was gone, she admitted that this was the case and also admitted that the father could have changed a nappy when she was not present.
There has never been an Apprehended Domestic Violence Order (“ADVO”) between the parents.
In April 2020, the father says that the parties separated but continued to live under the same roof until July 2020. The father would sleep on the lounge or in the shed to the side of the house.
One night after separation but during cohabitation, the father had a seizure in the shed due to his medical condition and stress. An ambulance was called. The father says that the mother was unable to be woken and that the mother later told him that she took sleeping pills because she was sick of hearing X crying. The mother says that no-one attempted to wake her and that she was told about the incident the next day. She says that she had been prescribed medication by a psychiatrist which she had taken and that she had been told it was safe to have when caring for a baby. The mother says she always woke to care for X throughout the night.
Under cross-examination, it was put to the father that he was seeking to blame the mother for the seizure and was being critical of her. The father said he only mentioned the incident with the mother being unable to be roused because it meant she was unavailable to take him to hospital.
The father says that he has developed a strong, close, and loving relationship with X. He says that initially the mother did not let him look after X alone, but then he started looking after her without anyone else being present. He says she was an easy baby to care for.
The father says that the mother drank and smoked marijuana continually the whole time they were together.
The father says that from early to mid-2020, the mother’s behaviour became more erratic and enraged. He says she would regularly take X away and speed off in the car.
In or about mid-2020, the mother was issued a penalty notice for speeding in Suburb D.
At some point, the father suggested that the mother move out of the House. He says the mother said to him:
When I move out, you are not going to see [X] at all. You are incapable of looking after my baby. You won’t get shared custody! Not when they realise you’re sharing a house with a grown man. I won’t have your mother rear my child.
In mid-July 2020, the mother and father had an argument and the father says the mother waved a large carving knife at him whilst holding X in her arms and said “I’ll stab you, you cunt!” and the father said to her “You have to leave, this is the last straw.” In what appears to be the same incident, the mother says the father was standing over her and verbally abusing her whilst she was washing a knife in the sink and that X was in her rocker at the time.

In mid-2020, the mother left the father’s residence with X and moved into rental accommodation in Suburb N. The mother took the car and X’s clothes and furniture. The father says he offered the mother $5,000 to furnish her accommodation and to pay half her rent each week but she refused these offers. The father said he did pay the mother $500 per week at some point regardless. The mother says that the father gave her $5,000, but then he kept asking what she did with it and so she gave the money back as she was sick of the harassment. The mother denies the father regularly gave her $500 and says she only received a payment of $500 once.
The mother says that they actually separated in July 2020, when the father hit the mother in the face with an object, threw a set of car keys at her and withheld her belongings from her. The father denies this occurred.
The mother says that the father was verbally, physically, emotionally, and financially abusive towards her throughout the relationship. She says she would have bruises and cuts on her body from the father assaulting her. The mother says the father’s verbal abuse included him saying to her:
“I will kick your head off your shoulders and down the street”
“I will kill you”
“You be careful what you say, I know where you live”
Under cross-examination, the mother said she reported this verbal abuse to the police, but they did not do anything.
The mother recalls that the father changed the locks to the House on two occasions and put the mother’s belonging in bag and told her to leave.
The mother says that, throughout their relationship, the father would disappear on about a monthly basis and would say things that led her and his family to believe that he would kill himself. The father denies this. At an unspecified time, the mother received a message from the father’s ex-partner Ms T, who told her that the father had previously overdosed on prescription drugs which resulted in the father going to hospital. Under cross-examination, the mother said she had never seen the father take heaps of prescription drugs herself.
On another occasion, the mother says the father said “If you take my daughter I will kill myself.” The father denies ever saying this.
The mother says that throughout their relationship, and after it, the father was a regular user of illicit and prescription drugs[11]. She says he used drugs a few times per week and sleeping tablets each night to sleep. The father denies this. Under cross-examination, it became apparent that the mother had largely assumed that the father had been using drugs because of his erratic behaviour, lack of sleep and lack of eating. Notwithstanding, the mother said she did see the father use drugs herself on multiple occasions. She says she saw him take illicit drugs 10 or so times, sleeping pills every night to go to sleep and ingest drugs on about five occasions.
[11] Presumably illicit substances.
The mother annexes to her evidence two very blurry photos appearing to show small white bottles of pills in a bag, which she says are the father’s bags of sleeping tablets. Under cross-examination, she said that she saw bags full of bottles of sleeping tablets but did not know how many bottles. In cross-examination, the father said that he has never had a prescription for the tablets and has been supplied it by friends.
The mother recalls one specific time during the relationship where she came home to the House to find the father and another woman with a plate, which she says had illicit drugs on it. Annexed to her evidence is a photo of a plate which appears to have drugs and drug paraphernalia on it. The mother says X was meant to be in the father’s care at this time, but she was actually with the paternal grandmother. The father denies this ever occurred.
Further, the mother says that the father manufactured illicit substances in the shed next to the House. She says she had previously had discussions with him about this, and it was one of the contributing factors towards the breakdown of their relationship. The father denies he manufactures drugs. Under cross-examination, the mother admitted that she had assumed that the father manufactured drugs during the relationship but did not actually know if this was the case.
The father denies all allegations that he was abusive, in whatever form, or that he was coercive or controlling.
After Separation
Initially, the parties’ relationship improved when the mother left the House. The father visited the mother’s residence on two occasions, he spent time with X, and on one occasion met the mother and X for breakfast at a café.
From July 2020 until September 2020, the father says he would care for X overnight most weekends when the mother wanted to go out. The mother says X only stayed overnight with the father on about three occasions and that she would stay with the paternal grandmother on these occasions.
In or about mid-2020, the mother drunk alcohol and used a small amount of drugs when X was not in her care. The mother says she has discussed her impulsiveness with her therapist and has learned to manage stress and pressure to eliminate drugs and alcohol from her life.
The mother says she intentionally maintained a relationship with the father during this period, despite the father being threatening and verbally abusive towards her.
In late 2020, the father says that the mother was charged with drink driving but not convicted as she was just over the limit. He also says that the mother was fined for speeding 30 km/h over the speed limit. The mother says that, in late 2020, she was caught drink driving with an alcohol reading of 0.56. The Court finds that this is likely an error and that the reading was actually 0.056, as a reading of 0.56 is likely to have been fatal. X was not in the car at the time. The mother’s licence was immediately suspended. In late 2020, the mother appealed her suspension, and her suspension was lifted.
The late 2020 Incident
In late 2020, the mother was caught drink driving again, this time with X in the car. The mother’s licence was immediately suspended, and she was arrested then taken to Suburb J Police Station where her blood alcohol concentration was measured to be 0.118. X was also taken to the station.
The father attended Suburb J Police Station. It is the father’s evidence that a police officer told him that the mother had also been arrested weeks earlier for drink driving. It is unclear whether this is the same incident that occurred in late 2020, although it seems likely.
The father took the keys to the car, took care of X, and returned to the House with X where he retained her. X stayed with Ms P and Mr O at night during this period.
In late 2020, the mother’s licence was suspended for six months, from late 2020, and she was sentenced to a Community Corrections Order which was suspended in late 2021. As a result of her offending, the mother had an interlock device fitted to her car. This device was still fitted to her car at the time of the final hearing.
The mother says she deeply regrets this incident.
After the late 2020 Incident
After the father retained X in his care, the mother sent him many abusive and threatening text messages, including:
“you better fucking take her back to my house”
“You’ll be in jail by tomorrow”
“you give my daughter back or you go to jail pretty fucking simple cunt”
“Bring [X] to my house now”
“Your [sic] a fucking drug dealer”
“you are a drug manufacturer and convicted criminal with your own mental health problems your mum lives on the same property as you we have already lodged an emergency retrieval order through the courts….”
“…the police already know there is an ongoing and suspected criminal and illegal activities happening at that premises”
In late 2020, the father, through his legal representative, sent a letter to the mother offering her supervised time with X. This correspondence was not responded to.
On 9 September 2020, the mother commenced these proceedings, and an interim hearing was heard on 14 and 22 September 2020.
The father completed a ‘Parenting After Separation’ course in September 2020.
On 24 September 2020, the Court delivered interim judgment ordering that X live with the father and spend time with the mother.
In late 2020, the father again received many threatening and abusive messages from the mother, including:
“You won’t have any rights when you go back to jail your family needs to stop complying with your criminal orders because [Ms P] will also loose [sic] her job she works at a [centre] and lives on a property drugs are manufactured be very careful [Mr Redfield]”
“When can I get the rest of my stuff I’ll need it before you go back to jail”
“You can say all the lies you want about you’re a thug and a criminal and there [sic] not far off sending you back to jail for the next ten years enjoy mate…..”
The mother’s urine drug test, performed in late 2020, returned a positive reading for an illicit substance. The mother says that this result was from illicit substance use the previous month.
In late 2020, the father received a message from his former partner Ms T asking him to have the mother stop contacting her.
The father alleges that the mother’s interactions with Ms T caused his attempts to re-establish contact with Q to fail.
In late 2020, the father attended Suburb J Police Station and asked them to conduct a welfare check on X when she was in the care of the mother which the police did.
In late 2020, X was admitted to hospital for an allergic reaction whilst in the mother’s care. The father says that the mother alleged that X was sick because of drug residue at the House, however the mother says the allergic reaction was caused by dairy.
The father’s hair follicle test, collected in late 2020, returned a positive result for illicit drugs. The father’s urine drug test results, collected a day later, returned no positive results for any illicit drugs tested.
The father says that both these tests returned negative results and that he has never taken illicit substances since X came into his primary care. The test collected in late 2020 is inconsistent with this.
The mother’s hair follicle test, collected in late 2020, returned a positive reading for illicit drugs and marijuana. The mother says she had used drugs about 4 weeks prior to the testing and that the father had given the mother the drugs. The father denies this. The mother says that she had last used an illicit substance in late 2020.
Every night X was in the care of the father during this period, X would sleep at Ms P and Mr O’s house. The father says he would give X a bottle, settle her, and then return in the morning at about 7am. The father says he did this because he was afraid the mother would attend his residence and remove X.
The father says that when X came from being in the care of the mother, she was agitated, hyper vigilant, easily startled, upset, and had dilated pupils.
A clinical note from the Region F drug & alcohol clinic dated late 2020, indicated that the father had called to be enrolled in drug & alcohol counselling to satisfy court orders to that effect. He was told that the clinic does not do counselling for that reason only. However, he did participate in a “phone assessment” on in late 2020.
On 16 October 2020, the father filed an application in a proceeding seeking that the mother’s time with X be supervised.
The U Hotel Incident
The mother telephoned the father’s solicitor’s office in late 2020, and said to them that the father had been identified as the perpetrator of an assault at the U Hotel and that the father would end up in jail and have no time with X.
The father’s solicitor wrote to the mother’s solicitor asking them to tell their client to have no direct contact with them.
In late 2020, the father says that the mother made an allegation to the police that he was involved in an altercation at the U Hotel.
The father was arrested in late 2020, released on bail, and charged with offences relating to an incident that occurred in late 2020 at the U Hotel. The father admits he was at the venue on that night without X but denies any involvement in the offence and plead not guilty. At the trial on in early 2023, the charge was dismissed at the Local Court of NSW.
After being arrested but before being released, the father was served Prohibition orders dated late 2020,. It also allowed the police to search the father’s residence without a warrant.
The stated reason for this order was the father’s 2010 offences that culminated in his incarceration. The father also believes that the mother had made a report to the police that he still owned weapons, which he says is false. The mother denies this and says she had no idea the Property was going to be raided.
Under cross-examination, the father stated that he did not blame the mother for the police raid (discussed below) or the U Hotel Incident, but that it was the mother’s fault that he had the orders issued against him, because she made false allegations to police that he had weapons. He says that the police told him that the mother had made that allegation. Ms P also said that the father’s family had discussions that the mother told police the father had firearms, but that she did not know firsthand whether this was true or not.
In late 2020, all three residences on the Property were raided by police whilst X was present. The police found no illegal weapons or illicit substances. The police did confiscate Mr O’s weapons. Under cross-examination, Ms P and the father stated that they did not know at the time that Mr O was not able to have weapons on the same property as the father because of his past convictions.
The mother was not informed by the father of his arrest or the raid. Ms P gave evidence that, in the future, she would contact the mother and inform her about such an incident.
After the U Hotel Incident
In late 2020, the father’s solicitor wrote to the mother’s solicitors advising that he would not deliver X for changeover and offered the mother supervised time only. The father says he did this because of the mother’s abuse, intimidation and harassment of him and his family. The mother’s solicitor responded to this correspondence by denying the allegations and seeking for time to occur in accordance with the interim orders.
It was put to the father under cross-examination that the reason he instructed his solicitor to send this correspondence was in retaliation for the U Hotel Incident and the subsequent raid. The father denied this and said it was because the mother was coming to the Property with police and abusing him and the extended family. Later in cross-examination, the father said he couldn’t recall specifically why he wanted to suspend time.
The mother did not spend time with X between 28 October 2020 and 25 November 2020.
In late 2020, police attended the Property and conducted a welfare check on X. The father says they were satisfied X was safe and well.
In late 2020, the police attended the Property with the mother to conduct another welfare check. The father says that the mother was aggressive and swearing during this time and that the police left after they were satisfied X was safe and well. The police asked the mother to leave the Property and she subsequently called the father 18 times. The mother says she attended because she was concerned for X and her safety, she denies being aggressive or swearing.
In late 2020, the father’s solicitor wrote to the mother’s solicitor alleging that the mother had been harassing, intimidating, and abusing the father and his family and that, as a result of this family violence, the mother’s time with X would need to be at a supervised contact centre.
In late 2020, the father undertook a urine drug test which returned a negative result.
In late 2020, the mother went out drinking with friends and used drugs.
In late 2020, the mother’s urine drug test returned a positive result for marijuana.
On 6 November 2020, the mother filed an application in a proceeding seeking a recovery order.
In late 2020, the police attended the Property to conduct another welfare check and the father says they left after they were satisfied X was safe and well.
In late 2020, the father participated in a phone assessment for drug and alcohol counselling. The assessment notes and cover letter provided that:
(a)The father requested the session due to court orders;
(b)The father denied any current substance use including illicit drugs;
(c)The father had used illicit drugs on average once a month in a social context and last used it in or about mid-2020;
(d)From 2018, the father had used illicit drugs each weekend and last used drugs in or about late 2020;
(e)The father used illicit substances to manage stress;
(f)The father reported an incident in or about 2018, when he was feeling low, had thought about killing himself, drove to a location and called his family, who supported him, and that he has had no suicidal thoughts since; and
(g)The counsellor considered that no further treatment was planned or necessary because the father’s ongoing abstinence and self-management was sufficient.
The father has not engaged in any other form of drug and alcohol counselling since.
The mother attended drug and alcohol counselling at W Centre until late 2020, and then for 12 months thereafter with Suburb N Drug and Alcohol Counselling and other appointments with psychologists.
A report from a person at ‘Y Psychology’ dated at some point after the late 2020 Incident states, inter alia, that the mother:
(a)Has complex PTSD, anxiety and depression; and
(b)Struggles with issues of frustration, stress, concentration, motivation, inability to control emotions, erratic moods, inability to trust others and substance use.
On 25 November 2020, the Court ordered that X have time with the mother and that changeover occur at Suburb J Police Station. The Court did not otherwise suspend the 24 September 2020 orders.
The mother’s hair follicle test, collected in late 2020, tested positive for illicit drugs and marijuana.
In about late 2020, the father attended changeover with X in accordance with the orders of the Court. The mother arrived late and, the father says, without a car, pram, or any other way to transport X to her house. The father telephoned the maternal grandmother who called an Uber for her. The father says that whilst waiting for the Uber, the mother was behaving erratically, pacing up and down Z Street, Suburb J with X and that her pupils appeared dilated. The father says that the mother forced her way into the father’s car and took his house keys.
Between changeover and about 11am on the same day, the father received 15 missed calls from the mother and received many abusive and threatening text messages from her including:
“… you mentally unstable excuse of a man”
“…your mum is mosey incapable basic sad excuse if there even was one look at your family your [sic] in jail your nieces are on anti depresseants [sic] and you’re a kiddy fiddler your disgusting you will never spend time alone with my child”
The father subsequently returned to Suburb J Police Station at about 11:30am with Ms P. The mother was still pacing up and down the street with X. The father says the mother approached them, was hysterical and made allegations that the father was doing inappropriate things with Ms P’s daughter. The mother thereafter had an interview with police.
In about 2020, police attended the Property to talk with the father and they set up an interview for the following day. In this interview at Suburb J Police Station, the father say that the police told him that the mother had alleged that the father had threatened to kill X outside the Police station but that she could not give enough details and so they had dropped the investigation. Under cross-examination, the mother said she told police that the father had chemicals in the House and had threatened to kill her, but they did not do anything.

Later that day at 6pm, the mother was, in accordance with orders of the Court, due to attend changeover at Suburb J Police Station. The mother did not arrive, and she sent the father a text message saying she would not be delivering X because of, inter alia:
“… yours and [Ms P] aggressive domestic violent behaviour….. your mental health is deteriorating are a result of drugs”
In late 2020, the father asked the mother where X was, but she did not divulge this information. The father contacted X’s case worker at the Department and they said that they would conduct a welfare check on X the same day.
On 30 December 2020, the father filed an application in a proceeding seeking a recovery order. The Court made that order on 27 January 2021. The mother agreed to return X without the need for law enforcement intervention.
The mother’s evidence is silent on the period between 2 November 2020 and 27 January 2021, the period where she unilaterally retained X.
In early 2021, the father presented to the Region F Hospital emergency department. The hospital records indicate that:
(a)The father told hospital staff that he had consumed alcohol and attempted to take his own life by overdosing on sleeping pills;
(b)The father had sent text messages to friends indicating that he was planning to take his own life and that paramedics were called; and
(c)When the paramedics arrived at the father’s car, which was parked next to a park, he was found unresponsive and surrounded by vomit.
The mental health triage notes of late 2021 indicate that:
(a)The father had sent text messages to a friend saying he wanted to harm himself;
(b)The father had taken an unknown amount of sleeping pills and alcohol; and
(c)The father was willing to talk to the mental health team.
The mental health assessment notes of early 2021 indicate that the father reported that:
(a)He had recently broken up with his girlfriend;
(b)The mother had recently taken X from his care;
(c)The incident happened in the context of multiple psychosocial stressors;
(d)He felt helpless;
(e)He just wanted X back;
(f)He did not suffer from past mental health issues and denied any psychotic symptoms; and
(g)He is not taking any medication for mood or anxiety but does use ¼ of a sleeping tablet as required to sleep.
The father was discharged in early 2021, and the hospital records indicate that hospital staff were satisfied there were no major risk factors relevant to his future mental health that warranted further intervention.
The father’s evidence-in-chief is silent on this incident, however, he was cross examined at length about it. In cross-examination, the father stated that he was very stressed at the time because X had been taken from him by the mother and that he took about a handful of sleeping tablets. When asked if this was a self-harm attempt, the father said that he could not recall much of that day. The father also said that he could not remember if he told hospital staff that he did not need any further help. He admitted that this was a serious incident.
Under cross-examination, Ms P said that while she was away at the time, she was aware of this incident.
After that order until March 2021, the parties by and large complied with orders.
The mother deposes that in early 2021, during changeover at Suburb J Police Station, the father said to her “you’re not taking my fucking daughter in a car with another man” and then stood outside the police station and made allegations that the car did not have an approved child seat for X.
The father’s hair follicle drug test, collected in early 2021, returned a negative result to all drugs tested.
Until the COVID-19 lockdown in early 2021, X was attending swimming lessons on Saturday.
From March 2021, the parties’ co-parenting relationship significantly improved, and the parties entered into informal negotiations to vary X’s care arrangements. While these negotiations were not always friendly, an agreement appeared to crystallise in or about April 2021, and was formalised in a written form in or about June 2021. That arrangement is detailed in [28] of these Reasons for Judgment and stipulated equal time over a four-week period.
The parties did not apply to vary the interim orders to give legal effect to this arrangement (see [29] above).
In mid-2021, the mother says that she only drunk alcohol on four occasions, one of these occasions was when she took drugs in mid-2020.
The mother’s hair follicle test, collected in mid-2021, tested positive for illicit drugs and marijuana. This was the last hair follicle test the mother underwent.
In late 2021, the police raided the Property pursuant to the Prohibition orders, and seized animals from the House and a reptile from Ms P and Mr O’s dwelling as they were kept without an appropriate reptile licence. The father was issued a penalty notice with a fine of $1,000 and the father, Mr O and Ms P have now all obtained reptile licences.
From late 2021, the mother has been regularly seeing her therapist, Ms AA, where she undergoes counselling and psychotherapy about once per week.
The father tendered at the hearing an email dated late 2021, from BB Organisation, stating that the mother had been removed from the CC program because she failed to make any engagement with the service after numerous attempts to call her. Under cross-examination, the mother said that this program ended because she did not need the services anymore, that she did not ignore any calls, and that the program did not involve counselling.
In or about early 2022, the mother commenced employment as a community worker working various shifts. From this date, the father and the father’s family have assisted the mother to change her time with X when her shifts conflict with the parties’ care arrangements. This communication mainly takes place via text message.
The father says that he has intermittently provided financial assistance to the mother.
In or about early 2022, until at least late 2022, the mother has had weekly psychotherapy.
The Shooting
In mid-2022, at about 8:30pm, an armed man entered the House and shot the father twice (“the Shooting”).
At the time of the Shooting, X was in the care of the father but was sleeping overnight in Ms P and Mr O’s residence. Notwithstanding, under cross-examination the father stated that X would sometimes stay overnight at the House during this period.
After being shot, the father did not call an ambulance but instead called Mr O and asked him to call an ambulance. In cross-examination, Ms P said she was the one who actually called the ambulance.
Mr O, Ms P and the paternal grandmother immediately came to the House where the father was. A friend of the father’s and X’s godmother, Ms DD, who lived locally, came to the premises to look after X and Ms P and Mr O’s children.
The father said in cross-examination that, when he called Mr O, he did not tell him to flee with the children and that Mr O ran to the House where the father was. Ms P also gave evidence that she ran up to the House after the Shooting and that she saw the shooter fleeing.
The father was taken by ambulance to EE Hospital where he received emergency surgery
At about 11pm on the day of the Shooting, the paternal grandmother tried to call the mother to inform her of the Shooting and to ask her to collect X. The mother received the message the next day and collected her. In mid-2022, the mother, with X, visited the father in hospital.
The parties’ evidence differs on this point, however, it appears that the mother had X in her care from mid-2022 for a number of days, after which X was returned to be in Ms P and the paternal grandmother’s care whilst the father was still in hospital. The father and Ms P say that the mother returned X because she had to work. The mother says she only returned X because she was worried about the consequences if she did not.
The father says he does not know who the shooter was. He says that, whilst he was in hospital in mid-2022, the police told him that they had arrested the shooter who the police identified as Mr FF.
The father was discharged from hospital in mid-2022.
In cross-examination, the father said that he does not know if someone was targeting him and that there was no reason why anyone would target him. He maintained that he thought it was a random shooting. He also said that he was frightened for others on the Property, including X, at the time of the Shooting.
Sometime after the shooting, the father installed additional security measures at the House including security cameras, an electric gate in front of the House and an electric gate leading to Ms P and Mr O’s residence. Under cross-examination, the father stated that he is not concerned that he will be shot again. Ms P also said that she did not consider there to be any ongoing risks.
in mid-2022, the father was visited by caseworkers from the Department who conducted a risk assessment of X living at the House. The caseworkers also spoke to Ms DD, Ms P, Mr O and the paternal grandmother. The father says he has not heard from the Department at all after mid-2022.
Tendered in the proceedings were handwritten notes made by Department staff during these interviews. Relevantly, these notes indicated that:
(a)The Department had concerns that X was still at risk in the House and that she could be caught in the crossfire in any future shootings;
(b)The father said that the shooter had said his name and he thought it may be targeted;
(c)X had her own room at Ms P and Mr O’s house;
(d)The Department agreed that X was safe if staying at Ms P and Mr O’s house;
(e)The father appeared concerned and worried for X; and
(f)Security arrangement were in place at the House.
The Court accepts that the handwritten note is a correct record of what was said by the father at the time.
The father was on crutches for a period of time but is now walking independently.
The father has not worked since the Shooting.
The mother says she has serious concerns about why someone broke into the father’s home to shoot him. She also says that the father has downplayed the incident and not given her much information. She gives an opinion that she thinks the Shooting was gang related and that there may be further attacks. The father denies it was gang related. The mother says she spoke to the police who said that they believe it was a targeted attack and that the father was not co-operating with their investigation. The father denies this and says he is co-operating and gave a statement to the police. The father was due to give evidence in the trial against the shooter which was scheduled to be heard in late 2023.
The father has not received any counselling or psychiatric assistance since the Shooting. In cross-examination, the father said that he has tried to enrol in counselling without success.
After the Shooting
The father says that since January, and increasingly after the Shooting, the mother has relied heavily on the father and his family to care for X while she works. He says that the mother would text him on short notice to tell him when she can and cannot look after X and that the father or the father’s family would invariably agree to care for X. In cross-examination, the mother admitted that the father and the extended paternal family assist her in caring for X when she needs to work, however, she was critical of the father for not allowing her to have make up time.
In this sense, the co-parenting relationship between the parties has continued to improve.
The father’s drivers licence was suspended for three months, after the father was caught using a mobile phone while driving in early 2022.
In mid-2022, the parents attended a mediation which was unsuccessful.
In late 2022, the mother commenced engaging in therapy to help with her PTSD.
In late 2022, the father’s solicitor sent correspondence to the mother’s solicitor stating that, if the mother refuses to agree to settle the proceedings on the basis of an equal time arrangement as previously offered, the father would revert X’s care arrangement to that of the 24 September 2020 interim orders. The father also sent text messages to the mother expressing a similar intention.
The father appears to have followed through on this threat. In late 2022, the mother’s solicitor wrote to the father’s solicitor requesting that the care arrangements revert to the parties’ informal agreement. On the same day, the father’s solicitor responded stating that the father would not press to enforce the 24 September 2020 interim orders. Notwithstanding, under cross-examination the father said that he did not threaten the mother by saying he would revert to the interim orders if the mother did not agree to his proposal.
Some six months after the Shooting, the mother filed an application in a proceeding seeking interim orders that X live with her and spend time with the father for two hours per week at a supervised contact centre. The basis for the application was the Shooting as well as other concerns the mother has about the father, including his drug use, domestic violence, mental health, and criminal associations. Under cross-examination, the mother attempted to explain the delay in filing as her lawyer’s delay and that she first corresponded with her lawyer about the application in or about August and prepared the document in October. The Court notes that August is still some three months after the Shooting.
On 7 February 2023, the mother’s application in a proceeding was stood over to the final hearing.
The father’s urine analysis drug test, collected in early 2023, did not detect any of the tested illicit substances.
Current Circumstances
Until 19 April 2023, X’s care arrangement had largely been in accordance with the parties’ arrangement.
Until early 2022, the father was self-employed as a tradesman. After early 2022, until the Shooting, the father was employed full time as a factory worker and transport worker. The father is currently unemployed and unable to work due to the injuries sustained from the Shooting. The father intends to work when he is able to. The father says that, when he returns to work, he will still be able to attend to X’s for night routines and every weekend. He says that whenever he would be working, the paternal grandmother and Ms P would be able to care for X. The father does not know when he will return to work or what work he will return to.
The mother works casually as a community worker on a shift work basis. She does not take night shifts when offered if X is in her care. She currently works a few days a week on a sporadic basis but intends on working three days a week into the future.
The father lives in the House and the mother lives in Suburb N in a three-bedroom home. It is approximately a 20-minute drive between the two homes.
The father says he would never take illicit substances while X was in his care. The mother says that the father used intravenous illegal substances on a weekly basis and has done so since he was 16 years old. She says she had seen him inject these substances and she says that he takes both prescribed medication for his medical condition and substances. The father denies this and says he has not taken any non-prescription medication since 2010. He denies currently taking any illicit substances and says he rarely drinks. Whilst the mother alleges that the father continues to use multiple illicit substances after separation, it became apparent under cross-examination that this was an assumption. Ms P has never seen the father consume drugs herself in the 23 years she has known him.
The mother says that she no longer uses illicit substances. Under cross-examination, she said that she used drugs recreationally once in the last six months and twice in the 12 months prior to that. She said that the last time she used drugs was in or about late 2022, and that X was not in her care at the time. Under cross-examination, the mother says she drinks about once a month and that, at the time of the hearing, her last drink was two weeks prior when she had four spirit-based drinks. The mother said that she still has an interlock device on her vehicle preventing her from driving with any alcohol in her body. It is clear, and indeed the mother admitted under cross-examination, that the mother does not make good choices when she drinks. She says that she now does not drink when X is in her care.
The mother says that the father has a history of suicidal ideation and suicide attempts, and that he does not have the mental capacity to parent. The father also raises issues about the mother’s mental health. In cross-examination, he described her behaviour as erratic and that sometimes she can go “ballistic”.
Ms P gave evidence in cross-examination that she would be able to identify if the father was having any future mental health crises because he becomes quiet and withdrawn when this occurs. She said it had not happened in the past 6-12 months. She said that she had encouraged the father to seek professional help but that he is resistant to the idea.
The father has a large support network including his family who live on the Property, and he says he intends to continue residing on the Property and have X live with him there with the support of his family. Most of the mother’s family live in Town GG, some six hours from the mother’s residence, although the mother has some family members who live in Sydney, including aunts and a cousin.
The father says he encourages X to facetime the mother when in his care. The father also says that he considers the mother to be a good mum to X. Despite many criticisms of the mother in his evidence-in-chief, the father said under cross-examination that he has never had any dramas about how the mother has been with X.
When X was in the care of the father overnight, she primarily slept at the paternal grandmother’s residence, but sometimes slept at the House. There was a short period after the Shooting when X never stayed at the House and stayed at the paternal grandmother’s residence. However, since late 2022, she had resumed sleeping there on occasion. X used to regularly stay at Ms P and Mr O’s residence as well, however, is currently unable to because that dwelling was flooded and is undergoing associated maintenance. When X sleeps at the paternal grandmother’s house, it is the paternal grandmother, not the father, who puts her to bed. When X is in the care of the mother, she co-sleeps with the mother. The mother says she is hoping to transition X to her own bed soon. The parents have not discussed their respective bedtime routines.
The parents say X is a good, happy, intelligent child who is very attached to both of them. The father says she is attached to his extended family too, particularly to Ms P and Mr O’s children, X’s cousins. The Property has animals, and the father says X likes to tend to the property. She also has her own pet. The mother says she takes X to the park, zoo, and crèche and that she does activities with X at home.
The father would like X to attend sports and to re-enrol her in lessons.
The father would like X to attend D School when she starts school, which is located close to his house. Under cross-examination, it became apparent that the father had not considered a school closer to the mother and he said that she could go to one closer to the mother if needed. He said the reason that he wanted her to go to D School was because it is where all her friends will be going.
The mother says she attends to all X’s needs, that she is happy and comfortable in her care and that she attends all necessary appointments.
Relationship between Relevant Persons
It is fair to say that the mother and father do not get along. Whilst the relationship has improved, almost all communication appears to take place via text message. Under cross-examination, the father said that he did not trust the mother and that the mother does not trust him.

The mother gives evidence that there is a power imbalance in her relationship with the father. She says that the father continues to coerce and control her.
Under cross-examination, the mother said that if she was granted sole parental responsibility, she would be able to consult the father and take his views into account on any major decisions. She also said that she would seek to support X’s relationship with her father, that X loves her father and that she is happy to follow whatever orders the Court makes in relation to time with the father.
The father seeks equal shared parental responsibility and says that, despite the parent’s past tumultuous relationship, they have worked well, and their relationship has improved significantly in the last 12 months.
Under cross-examination, the mother said that she would try to comply with an order for equal shared parental responsibility but that it would be difficult.
The father stated under cross-examination, that he has not sought any professional assistance to improving the relationship with the mother.
Ms P also does not get along with the mother. Under cross-examination, Ms P said that her relationship with the mother became strained years ago after the mother made false allegations that the father had been having an inappropriate relationship with Ms P’s teenage daughter. The mother said under cross-examination, that she thought that the father and Ms P’s daughter had a strange relationship. It appears Ms P has not spoken to the mother since those allegations were made.
Notwithstanding, Ms P was adamant that she would do anything for X, and if that meant restoring her relationship with the mother, she would do so.
The father and Ms P have a very close relationship. Ms P described it as being akin to a brother-sister relationship.
Care Arrangements of X when with the Father
The father deposes in his affidavit that whenever X is in the care of the father currently, she sleeps at the paternal grandmother’s. Under cross-examination, he said that she would occasionally sleep in the House with him.
The father says that each day, the paternal grandmother will wake X, change her nappy, dress her, and then take her to Ms P and Mr O’s house. The paternal grandmother then goes to work from 7am to 8:30pm where she does a school bus run. X plays with her cousins until the father goes to Ms P and Mr O’s house at about 7:30am, and then he takes X to the House. The father feeds X breakfast and, if she is not going to childcare on that day, the father would spend time with X until she has a nap at about midday. X will then play with her cousins when they get home from school. At night, X will have a bath or a shower at Ms P and Mr O’s home and the whole extended family will have dinner together, usually at Ms P and Mr O’s home. After dinner, the paternal grandmother takes X back to her house and puts her to sleep.
X attends childcare at Suburb D Early Learning Centre on Monday and Wednesday from 9am until about 3pm. The father says that X likes childcare. The father appears to drop off and pick up X from childcare.
The mother says that when X is in the care of the father, it is actually the father’s family who cares for her and that the father does not have the capacity to meet X’s needs alone nor does he actually do so.
General Allegations against the Father & the Father’s Family
The mother alleges that the father is a risk to X and an unsafe person because, inter alia, he:
(a)Has physically abused and assaulted her, both when X was present and when she was not;
(b)Cannot control his anger;
(c)Has a substantial criminal history;
(d)Often has drug users come in and out of the House;
(e)Sells illicit drugs;
(f)Is a drug user;
(g)Had Q living with him when he was arrested for offences;
(h)Lived with Mr M for 14 years, including whilst X was living at the House and that he is not a safe person. Mr M is currently imprisoned. The mother believes Mr M and the father cooked drugs together when they lived at the House;
(i)Has associations with a bikie gang;
(j)May have firearms at the property;
(k)Makes false allegations against the mother;
(l)May have a copy of the mother’s house keys and may enter her house without her permission;
(m)May have sent people on motorbikes after her; and
(n)May have stalked her house in his car.
Under cross-examination, it became apparent that many of these allegations were based off assumptions or hearsay and that the mother did not actually know whether most were actually true.
The father generally denies all these allegations, although he does not deny he lived with Mr M in the past.
The mother also says that the paternal grandmother has been physically and mentally abusive towards her.
The mother says that the father was controlling and coercive towards her both during and after the relationship. Some of these allegations include that the father:
(a)Controlled everything they did;
(b)Isolated her from her family and friends;
(c)Made sure the mother could only work jobs that were suitable to the father;
(d)Continually changed the days the mother had with X to limit her opportunities to work; and
(e)Has threatened and blackmailed the mother to influence her to accept his proposal for final orders, including by threatening to reduce her time with X if she does not agree, and by threatening to make her pay child support.
The father generally denies all allegations that he was abusive or that he was coercive or controlling.
X’s Childcare Attendance
In or about late 2022, the father made the decision to enrol X at Suburb D Early Learning Centre where she attends three days per week. This childcare centre is located very close to the House but some distance from the mother. The mother says this decision was unilateral, while the father says that he asked the mother to enrol X in childcare, but she did not, so he had to do it himself.
The mother suggested during the hearing that the father had told the childcare centre that there were no court orders relating to X. This issue cannot be ascertained from the tendered enrolment forms due to illegibility. The father said in cross-examination, that the childcare centre was fully aware of the court proceedings and knew that he and the mother have shared custody of X.
What is clear from the enrolment forms is that the father did not list the mother as a “second parent/guardian to contact or collect”, but instead listed X’s aunt, Ms P. Further, Mr O was listed as an emergency contact. In fact, the mother was not mentioned in the enrolment form at all. The father said in cross-examination that he put Ms P on the form so she could pick X up and put Mr O on the form because he was the father’s emergency contact for everything. The father went on to admit that the mother would have been a more appropriate person to list on the form, although he did not put her name down.
The mother says that the father has still not listed her as an emergency contact and that she has only been able to collect or drop off X at the childcare centre in the last month or so. Under cross-examination, the mother said the father had never asked her to attend the centre to provide her details or information.
The mother says that she attempted to enrol X in a childcare centre near her residence in Suburb N but says that the father has refused to sign the enrolment forms which meant they could not be completed. The mother says that the father told her he didn’t need to sign the forms. The mother says she would like to enrol X in childcare so that she can work when X is in her care without having to rely on the father’s family.
In cross-examination, the father said that he told the mother that she could enrol X in another centre closer to her if she wanted to. He says that the mother asked him to sign papers for the centre but that he refused to do so because he did not need to and did not want to pay for it. Notwithstanding, the father said that the mother never actually gave him the forms to sign.
Undertakings
Prior Undertaking of the Paternal Grandmother
The interim orders of 24 September 2020 were made by the Court subject to an undertaking provided to the Court by the paternal grandmother.
The undertaking the paternal grandmother gave was as follows:
1.I will be in substantial attendance on the property at all times that child [X] is being cared for by the father;
2.That if I become aware of any issues in relation to the consumption of illicit drugs at any time, or the consumption of alcohol by the father when he has the care of [X], that I will report these issues to the NSW Police, Department of Community [sic] and Justice, the mother’s solicitor and the father’s solicitor.
The paternal grandmother has not acted in accordance with the undertaking in relation to the supervision and notice requirements. The father’s own evidence is that X has been in his care when the paternal grandmother was not present.
The paternal grandmother did not contact the mother when the father attempted suicide in 2021.
The paternal grandmother is an absent witness in the father’s case. In respect of her evidence, the Court draws a Jones v Dunkel[12] inference.
[12] [1959] HCA 8.
Potential Future Undertakings
The ICL’s proposed minute of orders handed up during the proceedings included that the father’s time with X would be subject to an undertaking provided by Ms P, which is worded as follows:
1.I agree to be substantially present when [X] born [in] 2020 is spending time with her father [Mr Redfield].
2.I understand that I am performing my role in circumstances where it is alleged that [Mr Redfield] has experienced difficulties with substance abuse and mental health. I will not permit time to proceed, or will terminate time where it has already commenced, if I observe [Mr Redfield] to be behaving in a manner that I reasonably believe to be consistent with having used drugs or alcohol or in the event I reasonably form a view that [Mr Redfield] is experiencing an acute mental health episode or in the event [Mr Redfield] informed me he is under the influence of drugs or alcohol or experiencing an acute mental health episode.
3.I will not permit time to proceed, or will terminate time where it has already commenced, if I should become concerned about [X]’s safety or welfare and am unable to address such concerns by requesting that [Mr Redfield] act or cease to act in such a manner as is causing these concerns.
4.In performing my role I understand, and agree, to ensure that [X]’s best interest and wellbeing are my paramount concern, even where this would require me to take steps or disclose concerns that are contrary to any other person’s interests including but not limited to either of [X]’s parents or other relatives.
5.Should I have cause to decline to supervise time between [X] and [Mr Redfield], or to terminate time between [X] and [Mr Redfield], or to otherwise intervene in such time to address any behaviour of concern that I will advise the mother promptly via text message.
6.I will ensure that I am familiar with any operative court orders in relation to appropriate conduct in the presence or hearing of [X] upon being provided copy of such orders from the Independent Children’s Lawyer.
The general proposition of Ms P supervising the father’s time was put to her in cross-examination. Ms P said that:
(a)She could supervise if required however she did not consider it necessary;
(b)It would be a big burden, but if it means that the father and paternal family could see X she would do it;
(c)Her work commitments meant that weekday supervision would have to occur sometime after 3:30pm;
(d)She would make time to supervise on weekends if required;
(e)She could not foresee a time when she wouldn’t be available to supervise in the future;
(f)If the father tried to interfere with her supervision she would notify the required people;
(g)If the father got involved with bad people or started using drugs again she would confront him and notify the required people;
(h)Any communication with the mother would be via text message preferably; and
(i)She would be willing to give an undertaking to that effect if it meant that the father and the paternal family could have time with X.
Ms P’s oral evidence painted a picture of X having an extremely close relationship with her cousins. She says that X is like a little sister to Ms P’s children and that they love her like their own sister.
Under cross-examination the father maintained that he did not need supervision but, if he had to comply with such an order, he would. He also gave evidence that Ms P supervising his time would not cause a strain on his relationship.
Expert Evidence
Before the Court is a Family Report dated 25 November 2021. The family consultant, Ms HH, was cross examined at the hearing.
The Court notes that the family report was prepared during COVID-19 and that X was not directly involved with the report. It was also written prior to the Shooting. The family consultant interviewed the parents, the paternal grandmother and Ms P. However, these interactions were limited to telephone calls.
The family interviews for the family report were conducted at a time after March 2021, when X’s care was in accordance with the parties’ informal four-week equal time arrangement.
The mother gave the family consultant an account of the family violence she had experienced by the father, including allegations that the father had sexually assaulted her on numerous occasions. The father denied the allegations of family violence and speculated that the mother’s mental health may have contributed to her making false allegations.
Each parent raised concerns about the care of X when with the other parent, including raising concerns about their psychological and substance issues. The mother had other concerns when X was with the father, however, the family consultant stated this was merely suggestive of different parenting styles.
The father was generally positive about the parenting capacity of the mother and also spoke of the assistance he gets from his extended family in caring for X.
Both parents were frank about their history of substance use. The mother told the family consultant that she continues to use prescribed “THC”[13] and the father reported use of drugs up until about mid-2020 and further substance use in late 2020.
[13] Which the Court understands is Tetrahydrocannabinol, commonly referred to as medicinal cannabis.
The mother was frank with the family consultant about her present and past mental health difficulties and diagnosis. The father sought to minimise his previous mental health problems, and the mother expressed continued concerns about the father’s psychological state.
The family consultant was satisfied that X was developing appropriately and that she was well settled in with the current care arrangement.
The family consultant was critical of the quantity of care that was performed by the paternal family when X is in the care of the father, as this decreases opportunities for X to bond and have a meaningful relationship with the father, and also may crystallise in disruptive and unpredictable routines and boundaries.
The family consultant found that both parents had sought to minimise their history of mental health problems and substance abuse and lacked insight into the effect of this behaviour on X. Under cross-examination, it became apparent that the father had disclosed suicidal thoughts but not his self-harm attempt in early 2021 to the family consultant.
The mother reported that the father’s sole care of X after the late 2020 Incident was an example of coercive and controlling behaviour. The family consultant was critical of this view and opined that it is more likely that the father’s motivation was X’s safety. Given this, the family consultant was concerned with the mother’s lack of insight regarding how such an incident may impact X.
The family consultant was not convinced by the mother’s view that the father was using parenting arrangements to make the mother submit to his demands and, subsequently, the family consultant was not satisfied that it would be advantageous to X for one parent to have sole parental responsibility.
The family consultant found that the equal time arrangement that was in effect prior to 19 April 2023, and indeed the orders the father seeks, are not in X’s best interests because they do not give her the benefit of living with one caregiver and having a stable and consistent routine. Notwithstanding, the family consultant noted that due to the risks both parents pose to X, it may be the case that an equal time arrangement is actually the least detrimental option for X.
The family consultant recommended that:
(a)Wherever possible, the father undertake the primary caregiving duties when X is in his care;
(b)If the Court finds that the father does manufacture drugs but there is not an unacceptable risk of harm for X to have time with him, such time should occur away from the Property;
(c)Both parents engage in psychological services;
(d)Unless the Court makes a finding that the father committed coercive and controlling behaviour, that the parents have shared parental responsibility;
(e)If the Court is satisfied that it is in X’s best interest that she live primarily with one parent, she should live with the mother unless the Court finds she is an unacceptable risk to X; and
(f)If X lives primarily with the mother, she should spend time with the father each weekend from Friday to Sunday unless the Court finds he is an unacceptable risk to X.
Before her cross-examination, the family consultant was provided with relevant documents, including trial affidavits, applications and responses. Under cross-examination, Ms HH gave the following relevant evidence:
(a)Her views since making the report had not changed;
(b)She continued to have concerns about both parties in relation to substance misuse, psychological wellbeing, family violence, the Shooting and the father’s capacity to parent without the paternal family’s assistance;
(c)She considers that the father lacks insight apropos of his drug addiction and has not satisfactorily addressed it;
(d)The father should undergo professional counselling;
(e)Whilst the mother has said she has addressed her drug and mental health issues, that she still has concerns about this;
(f)The less risky parent is the one who has engaged in professional services and intervention;
(g)It is not in X’s best interests for the paternal family, rather than the father, to be primarily caring for X when she is in the father’s care;
(h)Unless there is an unacceptable risk of harm, it would be in X’s best interest to still have overnight time with her father; and
(i)The parties should agree on a single childcare centre for X to attend.
COURT’S DETERMINATION
Relevant Considerations
X’s views are not the subject of any evidence. She is, in any event, a very young child whose views would be given very limited, if any, weight.
X has strong and meaningful relationships with each of her parents. She also has strong relationships with the paternal extended family. She is a shining example of the love and support extended family can provide to a child. This is so, particularly in circumstances where this child’s parents have in the past behaved in a dysfunctional manner and where they have, from time to time, engaged in behaviour which is not in the child’s best interest, and indeed, behaviour which has put the child at an unacceptable risk of harm.
As is evident from the factual findings, these parents have experienced difficulties in respect of making joint decisions concerning X, and indeed in respect of co-operating as far as those decisions are concerned. There have been difficulties for X in having the benefit of spending time with both of her parents, where the parents have withheld her and/or not complied with orders and/or other agreed arrangements.

The evidence supports a finding that each of the parents has fulfilled their obligations in respect of financially supporting and maintaining the child.
X is still a very young child and her living arrangements from her birth have not been particularly stable. She has at times been a pawn in her parents’ hostilities but has also at times benefited from her parents’ improved capacity to taper those hostilities.
Following the evidence being closed at final hearing, the Court made interim orders for X to primarily live with the mother and spend limited time with the father, pending the delivery of this judgment. The genesis for the application to vary the interim orders was the Shooting. Short oral reasons were given on the day as to why the Court was making new and different interim orders on 19 April 2023.
The likely effect of change, of acceding to the father’s application, would be significant for X, as would it be if X was to spend no time with the father. Importantly, the Court is mindful that the practical effect of X spending less than significant and substantial time with the father will be that she spends less time with the paternal family, relatives who are very important to her and with whom she has close and loving relationships.
There are no practical difficulties or expense associated with the chid spending time and communicating with either of her parents, such that would result in the child spending time and communicating with her parents being contraindicated.
Each of the parents has particular vulnerabilities in terms of their capacity to care for X. These arise from previous criminal behaviours, substance use and abuse, and from their mental health. The Court notes again the Family Consultant’s evidence about these matters.
At times, the father particularly has engaged in conduct which has been nothing short of a knee-jerk reaction to perceived disrespectful and vengeful behaviour by the mother. Rather than considering these behaviours from the mother’s point of view, and taking the time to address her concerns, or indeed taking the time to find out what her concerns might be, he has acted in a manner which has resulted in X missing out on spending time with her mother.
While the father and his extended family have been accommodating to the mother and stepping up to care for X when the mother has not been able to, such accommodations have come with strings attached. Those strings being a lack of reciprocity and accommodation in ensuring that X’s time with the mother was not cut short, but that it simply occurred at different times.
The father’s actions in unilaterally enrolling X into a daycare which is in close proximity to his home and which it is practicable for him to take X to, without any consideration of the practicalities of such enrolment for the mother, his purposeful exclusion of her details from the enrolment form, and his lack of co-operation in enrolling X in a daycare which is close to the mother’s home, all show a lack of insight into the importance of the mother’s role in X’s upbringing and a righteous attitude in respect of the importance of his decision making.
Much of the time that X was to be spending with the father, including overnight, has been spent with the paternal extended family. The Family Consultant’s opinion about the instability of this arrangement for X has already been noted. What it has resulted in for X is a lack of opportunity for the father to showcase important parenting skills and capacity. Caring for a child for a few hours here and there is very different to caring for a child for days and nights on end.
The mother too is to bear some responsibility for X spending such extended periods of time with the paternal extended family. She has relied on them to step in when either her or the father have been unable to care for X, be it because of work or because of other more sinister reasons such as being shot and incapacitated or being arrested for drink driving with the child in the car.
Lest it be thought that the Court is critical of the child spending time with such extended family, it needs to be said that such relationships are important for X, and it appears on the evidence that the overall experience has been nothing but positive for her. The father’s extended family is well meaning and very caring towards X.
In circumstances where none of the extended family members have chosen to participate in the proceedings except as witnesses in the father’s case, the Court is to determine what is in X’s best interest in terms of her living arrangements as between her parents only.
X’s care in the father’s home is heavily punctuated by support and care from the paternal family. It can fairly be said that the father has abrogated his parenting responsibilities to his mother and his sister-in-law.
Noting the history of X’s care in the father’s home, it would be intellectually dishonest for the Court not to recognise that an order for X to live with the father would, in reality, be a de facto order for X to live with her paternal grandmother and/or paternal uncle and aunt.
This is not a case where the evidence supports an equal time arrangement, not only because of the lack of capacity by these two parents to co-operate, but also because it is physically impractical for X to live between these two households.
There are very serious allegations of family violence. The Court is well aware that there are negative impacts on children being exposed to or subjected to family violence, and that there can be very significant risks to children from such violence.
However, neither parent nor the ICL have pressed the Court to make particular findings of family violence. The cross-examination of the parties in respect of such allegations was little more than cursory. In those circumstances, the Court is not prepared to make any specific findings of family violence. It is of note that the parties make no allegations of ongoing physical violence.
The mother continues to allege that the father engages in behaviour which is coercive and controlling. It is not necessary to determine whether the mother perceives the father’s behaviour to be coercive and controlling or whether it actually is so, given the other matters which the Court has already noted and its findings about those matters.
However, notwithstanding her complaints about the father’s continued coercive and controlling behaviours, the mother has continued to rely upon the father and the paternal family to assist her when needed in caring for X. This does not necessarily mean that the mother’s allegations are negated or that they should be dismissed, it might mean that she has no other option but to rely on the person she says is abusive towards her. To the mother’s credit and to the father’s credit, there is no evidence that X has been negatively impacted by either the allegations or the alleged behaviours.
The mother has at times shown a less than responsible attitude to parenthood, not only in terms of driving whilst intoxicated with X in the car, but also in terms of her recreational drug use whilst these proceedings have been on foot. The Court accepts that the mother has some significant mental health issues and that these, at times, may manifest themselves in behaviours which may appear to be irrational and/or erratic. However, aside from the drink driving episodes, there is no evidence that the mother’s behaviours have put X at risk of physical harm and, more particularly, at an unacceptable risk of harm.
At times, the parents’ behaviours which have culminated in conflict have potentially been harmful to X. There is, however, no evidence of any long-term harm having come to X as a result nor that it would do so consequent upon such conduct having historically occurred.
The father’s criminal history is a significant concern to the Court, likewise the father’s mental health vulnerabilities and his lack of insight into those, as well as his past drug taking and his lack of engagement with drug and alcohol counselling except as a direct result of Court orders. Importantly, the father being the victim of the Shooting is also of a very significant concern to the Court. The reason why these matters are concerning to the Court is because each and every one of them potentially places X at risk of significant and/or unacceptable harm. The fact that she has not been harmed is, in one sense, quite astonishing.
The father has historically been involved in the supply of illicit drugs. Apart from its criminality and the associated dangers, this is an inherently dangerous activity.[14] The evidence does not lead to any finding however, that the father continues to engage in this or similar types of criminal activity.
[14] This is a matter upon which the Court takes judicial notice.
The father’s lack of acceptance of his mental health vulnerabilities and his lack of engagement with professionals who are likely to be able to help him, lead to a finding that he does not have appropriate insight into the possible and probable danger that such vulnerabilities might cause his child. The father has had suicidal ideations and he has self-harmed. His evidence is that his family are a sufficient support for him, and he needs no external help. This is the father’s own assessment, and he is no expert.
The father’s lack of engagement with drug and alcohol counselling or similar, in light of his attempt at self-harm and suicidal ideation, is further evidence of a lack of insight.
The Shooting is simply an extraordinary event. The father has at all times maintained that it was a “random” act. On the evidence, it is more likely than not, that the shooter did target the father personally and not randomly. The very nature of the Shooting, without any associated attempt at, for example, attempted robbery, or any associated targeting of others who were present, the fact that the shooter spoke the father’s name and shot him, speak against this criminal act being random.
It is open on the evidence to infer that the father was the subject of a targeted attack. However, there is no probative evidence going to any possible explanation as to why the father might have been the subject of a targeted attack, and to come up with a possible explanation would be pure speculation.
While conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.[15]
[15] Isles & Nelissen at [53].
The Court acknowledges and recognises that:[16]
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability... Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse…
[16] Isles citing Fitzwater & Fitzwater [2019] FamCAFC 251 at [138] – [140] with approval at [50]- [51].
While the risk to X of being exposed to any similar acts of violence as the Shooting may be unacceptable, there is simply no evidence upon which a finding could be made that further acts of similar violence towards the father are likely or probable. Indeed, an order for supervision of X’s time with the father is highly unlikely to mitigate against any such risk.
The fact remains that the father was shot in his home and that this occurred at a time when X was spending time with him, although she was physically not in the location at the time that he was shot, perhaps by pure luck.
Consequently, the risks to X must be managed. The risks must be minimised and ameliorated if they cannot be eliminated. The risks must be weighed against the actual and potential benefits to X which arise as a result of her having a meaningful relationship with the father.
In all of the circumstances, the Court finds that it is in X’s best interest to live with the mother and spend time with the father, with such time being limited to daytime only, being one afternoon per week and a Saturday once a fortnight. This will allow X to continue to have a meaningful relationship with the father (and the paternal family) while at the same time minimising the risks to her. The very fact of time being limited in this manner is itself a mitigating factor.
The orders will also provide for the parents to have the capacity to agree to X spending additional time with the father, as they deem appropriate provided that X is safe, which one might envisage may include time with the paternal family.
Noting the undertakings which have historically been given in these proceedings, the goodwill which the paternal family has shown to the mother, notwithstanding all of the difficulties which the parties have encountered, the Court is not minded to make any further orders which would require that the father’s time with the child be supervised or to only occur in the presence of the father’s extended family members, and in particular Ms P. Specifically in relation to Ms P, while the Court notes her willingness to supervise and to provide an undertaking, the Court is simply not minded to place that legal burden on her.
The mother has continued to engage in counselling and has continued to obtain assistance to help her deal with her mental health issues, as well as past drug and alcohol use. She has insight into her own vulnerabilities. She has matured and is now making better decisions than she has in the past. There is no doubt that she will continue to obtain support from mental health professionals, even without any Court order requiring her to do so, as such support assists her and she recognises that this is so.
The father on the other hand, despite orders that he obtain drug and alcohol counselling, has only made a cursory attempt to obtain assistance from mental health and related professionals. As noted earlier, he does not consider that there is a need for him to do so. The Court has already noted that this shows a lack of insight on his behalf and is further reason as to why it is in X’s best interest that she live with the mother and spend limited time with the father.
Parental Responsibility
On the evidence overall, the Court is satisfied that it is not in X’s best interest for the presumption of equal shared parental responsibility to apply.
While each of the parents has their own vulnerabilities, and while X would benefit from having both parents having a say in respect of her long-term care, welfare and development, the evidence does not lead the Court to find that the parents are capable of making joint decisions. The father particularly, has made unilateral decisions in respect of X and has left the mother out of the decision-making process.
In certain respects, the father does not particularly trust the mother, nor does he believe that the two of them are capable of cooperating to the level required to be able to make joint decisions.
The mother, likewise, does not particularly trust the father. Her views of the father are that he makes decisions in respect of X which not only deliberately leave her out but also make her caring for X more difficult.
Noting that X will be living with the mother and spending time with the father, it is appropriate that the mother have sole parental responsibility for the child. In that regard, she will be required to notify the father prior to making any long-term decisions which affect X, and to take his views into account in coming to a decision about that particular matter.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding three hundred and thirty (330) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 13 October 2023

File number(s):	PAC 4725 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	13 October 2023
Catchwords:	FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DA, 65DAA
Cases cited:	Banks & Banks [2015] FamCAFC 36 Fitzwater & Fitzwater [2019] FamCAFC 251 Isles v Nelissen [2022] FedCFamC1A 97 Johnson & Page [2007] FamCA 1235 Jones v Dunkel [1959] HCA 8 M & M (1989) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 McDowell & Redfield [2020] FCCA 2670 MRR v GR [2010] HCA 4 Slater & Light [2011] FamCAFC 1
Division:	Division 2 Family Law
Number of paragraphs:	330
Date of last submission/s:	1 May 2023
Date of hearing:	17-19 April 2023, 1 May 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Cohen
Solicitor for the Applicant:	Gonzalez & Co
Solicitor for the Respondent:	Mr Prakash of Prakash Lawyers
Counsel for the Independent Children's Lawyer:	Ms Dalrymple
Table of Corrections
14 May 2024	At [49] the words “ The phrase “unacceptable risk” does not appear anywhere in the Act. However are deleted.

PAC 4725 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MCDOWELL Applicant
AND:	MR REDFIELD Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	13 OCTOBER 2023