Morvand & Sleeman

[2024] FedCFamC1F 894

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morvand & Sleeman [2024] FedCFamC1F 894

File number(s):

SYC 7028 of 2024

Judgment of:

CURRAN J

Date of judgment:

19 December 2024

Catchwords:

FAMILY LAW – CHILDREN – best interests – international relocation – where the mother seeks to relocate to Country B with the children – where the father opposes the relocation – where the mother is the primary carer for the children – where issues of safety due to the father’s alcohol and drug use – where one child has special needs – where the mother lacks practical, emotional and financial supports in Australia – where the extended maternal and paternal family reside in Country B – where the father submitted the children cannot have a meaningful relationship with him should relocation be permitted – where partway through the trial the father consents to the relocation and a period of supervision – where only issue becomes the period of time that the father’s time will be supervised– orders made permitting the relocation with supervision by the paternal grandmother for a period of time given issues of the safety of the children

Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth), pt VII, ss 60B, 60CA, 60CC, 60CG, 64B

Convention on the Rights of the Child

Cases cited:

Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Division:

Division 1 First Instance

Number of paragraphs:

88

Date of last submissions:

18 December 2024

Date of hearing:

16 & 18 December 2024

Place:

Sydney

Counsel for the Applicant:

Mr Auld

Solicitor for the Applicant:

Abbott Delaney Lawyers

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Walter & Elliott Family Lawyers

ORDERS

SYC 7028 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORVAND

Applicant

AND:

MS SLEEMAN

Respondent

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	19 DECEMBER 2024

BY CONSENT THE COURT ORDERS THAT:

Prior orders

1.That all prior orders be discharged.

Decision making responsibility

2.That other than is set out in these orders with respect to the children's residence and habitual residence the Mother have sole parental responsibility, and sole responsibility for the making of decisions relating to major long-term issues, for the children X born in 2022 and Y born in 2022.

3.That the Mother be at liberty to relocate the children's residence and habitual residence to Country B no sooner than 6 January 2025 and upon the children relocating to Country B the Mother be prohibited from changing the children's residence and habitual residence outside of Country B without the Father's written consent or Court order.

4.That the children shall live with the Mother, and spend time with the Father as agreed between the parties in writing and failing agreement as follows:

Prior to the relocation

5.That the children shall spend time with the Father:

5.1.With the Father collecting the children from day care each Tuesday and Thursday at 3:00pm and returning the children to the Mother at McDonalds in Suburb C at 6:30pm.

5.2.Each Saturday and Sunday from 9am to 5pm with the Father collecting from and returning the children to McDonalds, in Suburb C.

When the children live in Country B and the father lives in Australia

6.The children shall spend time with the Father as follows:

6.1.In Australia during the following months:

6.1.1.In June/July 2025 for a period of three weeks on dates as agreed between the parties and failing agreement between 7 July and 28 July;

6.1.2.In June/July 2026 for a period of two weeks during the children's Country B summer holiday period in writing from 1 June and 31 August, (and failing agreement from 14 July to 28 July) and each alternate year thereafter;

6.1.3.During December 2026/ January 2027 for a period of two weeks (and failing agreement from 20 December and 3 January), and each alternate year thereafter;

6.1.4.In June/July 2027 for a period of four weeks during the children's Country B summer holiday period in writing from 1 June and 31 August, (and failing agreement from 1 July to 28 July) and each alternate year thereafter.

6.2.That the children shall spend time with the Father as set out in Order 6.1 with the following conditions:

6.2.1.For orders 6.1.1 such time will be from 9:00am to 5:00pm on no fewer than 12 occasions over the three week period;

6.2.2.The time set out in Orders 6.1.2, 6.1.3 and 6.1.4 shall have gradual increase in time being that:

(a)commencing in June/July 2026 with one overnight at a time only and thereafter the number of consecutive overnights shall increase by one night per block period;

(b)The children shall return to the care of the Mother after each block overnight period for no less than 24 hours;

(c)The children shall spend time with the Father for no less than half of the time the children are in Australia.

(d)Upon the children turning 10 years of age the block period of time shall be fourteen nights.

6.2.3.The time shall occur in Australia;

6.2.4.The Father shall provide no less than eight (8) weeks' notice in writing of the airline and flight details and shall provide the flight tickets;

6.2.5.The Father shall pay for the children's return Economy class airfares and shall pay for one return economy airfare per calendar year for the Mother.

6.2.6.The Father is restrained from removing the children from Australia during his time with the children.

6.2.7.The time the children spend with the Father is subject to the requirements of supervision as set out below.

In Country B

7.The Father shall spend time with the Children whilst visiting Country B for a period of up to four weeks at a time on the following conditions:

7.1.Prior to the children turning four from 9:00am to 5:00pm on no fewer than 14 occasions over a four week period;

7.2.After the children have turned four there shall be a gradual increase in time being that:

(a)commencing in June/July 2026 with one overnight only and thereafter the number of consecutive overnights shall increase by one night per block period;

(b)The children shall return to the care of the Mother after each block overnight period for no less than 24 hours;

(c)The children shall spend time with the Father for no less than half of the time the Father is in Country B.

(d)Upon the children turning 10 years of age the block period of time shall be fourteen nights.

7.3.The time shall occur in Country B, with the Father travelling to, and staying in Country B, at his cost;

7.4.The Father shall provide no less than four (4) weeks' notice in writing of his proposed dates of travel;

7.5.The time shall occur no more frequently than one four week period each six months.

7.6.The children shall miss no more than 10 days of school in any school year to spend time with the Father.

7.7.The Father shall be restrained from removing the children from Country B during his time with the children.

7.8.The time the children spend with the Father is subject to the requirements of supervision as set out below.

If both parties live in Country B or the mother moves to Australia

8.That the children shall spend time with the Father each alternate Saturday and Sunday from 9:00am to 5:00pm until they turn four years of age.

9.Upon the children turning four years of age during term time:

9.1.Thereafter, each alternate weekend from 8.30am on Saturday to 5:30 pm on Sunday for a period of 4 months;

9.2.Thereafter, each alternate weekend from 5:30 pm on Friday to 5:30 pm on Sunday for a period of 4 months;

9.3.Thereafter, each alternate weekend from 5:30 pm on Friday to before school on Monday.

10.Upon the children turning six years of age during school holiday time:

10.1.commencing in June/July/August 2027 with six blocks of three nights.

10.2.In December 2027/January 2028 two blocks of four nights.

10.3.In June/July/August 2028 with four blocks of five nights.

10.4.In December 2028/January 2029 one block of six nights.

10.5.In June/July/August 2028 with three blocks of seven nights.

10.6.In December 2028/January 2029 and thereafter one block of seven nights.

10.7.In June/July/August 2029 and thereafter for three blocks of seven nights.

10.8.Upon the children turning 10 years of age the block period of time during June/July and August shall be fourteen nights.

11.That changeover shall take place at the McDonalds closest to the Mother's residence from time to time.

12.The Father's time with the children shall at all times be supervised by an agreed upon supervisor including the paternal grandmother, or a supervisor from D Contact Centre, E Contact Centre or any other professional supervision service as agreed between the parties in writing from time to time, and failing agreement, as nominated by the Mother, and in relation to the same:

12.1.The Father shall be solely responsible for the costs associated with supervised time; and

12.2.Each of the parties shall do acts and things required of them to comply with the guidelines of the supervisor.

12.3.The Paternal Grandmother shall provide an undertaking regarding her role as a supervisor.

13.That the requirement that the Father's time be supervised be suspended upon the Father demonstrating the following:

13.1.The Father providing two hair follicle tests that comply with Orders 15 and 16;

THE COURT FURTHER ORDERS THAT:

13.2.The Father providing three further consecutive CDT tests with a result less than 1.8, with such tests undertaken in compliance with Order 17.

BY CONSENT THE COURT ORDERS THAT:

14.In the event the Father produces a hair follicle test that indicates the use of an illicit substance or a CDT test which indicate a result higher than 1.8 or provides a test that does not comply with Orders 15, 16 or 17, then the supervision as set out in Order 12 will resume until the Father has again complied with the requirements set out in Order 13.

Drug and alcohol testing

15.For a period of 15 months from these Orders, the Father shall submit to hair follicle drug analysis on a three monthly basis until March 2026 (therefore with a further 5 tests to be undertaken):

15.1.Such test will be a chain of custody test and be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;

15.2.The test shall test for the presence of drugs of abuse, including illicit drugs, amphetamines, opiates/opioids, phencyclidine, and THC and each of their analytes;

15.3.The cost of the testing shall be met solely by the Father;

15.4.The Father shall provide the Mother with written confirmation that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and

15.5.The Father shall authorise any service provider to release any information and report about such testing directly to the Mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the Mother.

16.For a period of 15 months from these orders, the Father is restrained from:

16.1.Cutting his head hair to a length shorter than 4 centimetres or otherwise chemically treating or bleaching his hair; and/or

16.2.Using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.

17.The Father shall submit to CDT testing at the written request of an Independent Lawyer, and in relation to the same:

17.1.The parties shall appoint Ms F, G Lawyers, as the Independent Lawyer;

17.2.The parties shall provide these orders to the Independent Lawyer;

17.3.The parties shall do all things and sign all documents so that the Independent Lawyer shall make request of the CDT test in writing;

THE COURT FURTHER ORDERS THAT:

17.4.Each request shall occur each three calendar months for the next fifteen months from the date of these Orders;

BY CONSENT THE COURT ORDERS THAT:

17.5.The Father shall submit to such testing within 72 hours of any request being made;

17.6.The cost of the testing shall be met solely by the Father;

17.7.The Father shall provide the Mother with written confirmation that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and

17.8.The Father shall authorise any service provider to release any information and report about such testing directly to the Mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the Mother.

Contact details and communication

18.That the Mother and Father shall inform each other in writing within 7 days of any change in their mobile telephone numbers, email address and/or home telephone numbers.

19.That the Mother and Father be permitted to liaise with the children's school, sporting bodies and other extra-curricular activity providers to obtain any necessary information about the children's progress, with the parties to do all acts and things and sign all documents necessary to facilitate this Order.

20.That the Mother shall:

20.1.Send the children's report cards to the Father each year and keep the Father informed of the children's health and progress at school, and the children's residential address, mobile phone number and email address at all times.

20.2.Ensure that the Father's contact details are provided to any school the children are enrolled in, and that the Father's name is listed as the next of kin in any form concerning the children's education, health, future care, welfare or development.

21.The parties shall do all things and sign all documents necessary for these Orders to be registered and enforceable in Country B.

Telephone

22.That the Mother shall facilitate not less than three facetime calls per week at a time that is mutually convenient and failing agreement on Tuesday, Thursday mornings and Sunday morning (so long as the children are not spending time with the paternal grandparents or either of them that day)

Medical, educational and extra-curricular

23.That each of the Mother and Father shall:

23.1.Notify the other of any serious injury or hospitalisation in relation to the children or either of them as soon as possible after the emergency occurred and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable the other parent to obtain all necessary information concerning the children or either of them.

23.2.Provide full particulars of any medical practitioner, health service provider or institution attended by the children to the other, as well as any necessary authority or direction to enable the other parent to obtain information concerning the children from such medical practitioner, health service provider or institution.

Airport Watch List

24.That X born in 2022 and Y born in 2022 be forthwith removed from the Australian Federal Police Airport Watchlist to enable them to travel outside of the Commonwealth of Australia.

Overseas Travel

25.That the children be entitled to travel overseas with the Mother so long as she:

25.1.Provides the Father with a copy of a return ticket for the children's travel no less than fourteen (14) days prior to the proposed travel;

25.2.Provide the Father with an itinerary of the children's travel no less than fourteen (14) days prior to the proposed travel;

25.3.Provide the Father with telephone contact details upon which the children can be contacted during the overseas travel; and

25.4.Ensure that the children are covered by a travel insurance policy at all times they are travelling overseas, with a copy of such policy to be provided to the Father not less than fourteen (14) days prior to the departure date of such overseas travel.

Passports and visas

26.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the relevant Minister may renew passports for the children, X born in 2022 and Y born in 2022 (collectively “the children”) upon the application of the Mother of the child without further consultation with the Father, the Mother having sole parental responsibility pursuant to an order of this Court to make such applications as are necessary.

27.That each of the Mother and the Father shall do all acts and things and sign all documents as may be necessary so that the children have a valid Australian and Country B passport and so that the Mother can obtain any visa and/or requisite travel document as may be required for the purpose of the travel to and from the destination country.

28.That the Father shall sign, within seven days of receipt, any form provided by the Mother to facilitate Order 27 and to confirm the children as Country B Citizens.

29.That the children's passports be held by the Mother.

Non-Denigration

30.Each of the parties shall be restrained by injunction from denigrating the other party or any member of their family to or in the presence or hearing of the children and to use his or her best endeavours to ensure that no one else does so in the presence or hearing of the children.

31.That the Respondent Mother facilitate time between the children and the paternal grandmother as agreed, and failing agreement :

31.1.every second Sunday and every fourth Saturday from 10am to 4pm,

31.2.upon the children turning four years of age once a month from Saturday 10am until Sunday at 4pm and once a month Sunday from 10am to 4pm with such time is suspended if:

(a)The Applicant Father relocates permanently to Country B;

(b)The children are travelling to Australia, pursuant to these Orders;

(c)During the time the Applicant Father has travelled to Country B, pursuant to these Orders to spend time with the children;

(d)The Respondent Mother is travelling with the children.

32.That the Father provide the Mother any documentation provided by the Administrative Review Tribunal or from the Department of Home Affairs within 7 days of receipt that demonstrates any applications, decisions or changes to his visa status in Australia.

33.In the event the Father and the children are in the same location on 25 December than the children shall spend time with the Father for a period of no less than four hours, with such time to occur in the morning in even years and in the afternoon in odd years.

34.That the Mother is restrained from revoking the children's Australian citizenship

Notation

A.Whilst the Father is working in Australia he intends to continue to pay the Mother child support of $2,400 per calendar month.

THE COURT FURTHER NOTES THAT:

B.Orders 13.2 and 17.4 were not made by consent.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morvand & Sleeman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

CURRAN J:

INTRODUCTION

1. These proceedings were initiated by Mr Morvand (“the father”) who seeks orders to spend time with the children and prevent Ms Sleeman (“the mother”) from relocating the residence of the parties’ children, Y and X, born in 2022, to Country B.

2. To the parties’ credit part way through the trial they have been able to resolve all issues in respect of orders that are in the best interests of Y and X, save for one discrete issue.

3. Y and X are two years old as at the date of these proceedings. X has some learning difficulties and is currently awaiting to undergo an assessment for autism.

4. For the reasons set out herein, I find that it is in the best interests of the children to make the orders that were agreed in respect of all of the issues in accordance with the parties agreement, including parental responsibility being held by the mother and for the mother to be permitted to relocate the residence of the children to Country B after early 2025. I make these orders by consent together with the balance of the orders sought as to the time the children will spend with their father and ancillary orders including travel, communication and non-denigration orders.

5. Issues of risk for the children in the care of the father were raised in the proceedings. The parties reached a consent position in relation to CDT testing and hair follicle testing in respect of the father’s illicit drug and previous alcohol use such that he spends time with the children but is required to be supervised during this time for a period.

6. The only issue that was unable to be resolved is when that requirement for supervision should cease.

   ORDERS SOUGHT

7. The parties agree that the father’s time be supervised but are not in agreement as to when the requirement for supervision should cease. The father will spend regular time with the children supervised by the paternal grandmother between today and early 2025, when the children are permitted to relocate to Country B with their mother.

8. It is agreed and I have ordered that the children should spend time with the father from 7 July until 28 July 2025 in Australia between 9.00 am and 5.00 pm on no fewer than 12 occasions in that period. The crux of the dispute is whether time with the children should no longer be supervised at this point, which is what is sought by the father.

9. The parties agree that, pursuant to the orders, the paternal grandmother will provide supervision and to that end the paternal grandmother was present in Court and has provided a written undertaking in respect of supervising the time. She confirmed to the Court that she understood the obligations of such an undertaking. If the paternal grandmother is unable to supervise the parties have agreed to professional supervision agencies in both Australia and Country B.

10. The mother seeks that the father submit to CDT testing each three months for the next fifteen months, as sought by the agreed independent lawyer. The father seeks that the testing occur once every two months for the next six months as sought by the agreed independent lawyer.

11. The only issue for determination is whether, subject to the father providing CDT testing with a result less than 1.8, the supervision period would cease in June 2025 or in March 2026. The parties agree the father will undertake Hair Follicle tests on a three monthly basis until March 2026.

    THE LAW

    Parenting orders

12. Part VII of the Family Law Act 1975 (Cth) (“the Act”) outlines the orders the Court can make in respect of children. The meaning of a parenting order is defined at s 64B.

13. Section 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (“CROC”).

14. Section 60CC(2) identifies the matters that the Court is to take into account in determining what is in the best interests of a child, those being:

    (a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

    (i)        the child; and

    (ii)each person who has care of the child (whether or not a person has parental responsibility for the child);

    (b)any views expressed by the child;

    (c)the developmental, psychological, emotional and cultural needs of the child;

    (d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

    (e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

    (f)anything else that is relevant to the particular circumstances of the child.

    Assessment of safety considerations

15. The Act requires consideration of arrangements which promote the safety of children as one of the identified factors for consideration under s 60CC(2).

16. Per Isles & Nelissen (2022) FLC 94-092, in assessing risk the Full Court enumerated the necessity to consider all of the circumstances, including historical conduct, in determining whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future.

17. In Eastley & Eastley (2022) FLC 94-094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion.

18. The Court must, pursuant to s 60CC(2A), consider any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.

19. Furthermore, in accordance with s 60CG the Court must consider the risk of family violence and to the extent it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.

20. Finally, consideration must be made as to whether any identified risks can be ameliorated.

    Specific Issues Report

21. The Specific Issues Report (“the Report”) prepared by Ms H provided her opinion as to the children’s development, their relationship with each parent, the impact upon the children and upon their relationship with each parent in relation to the orders sought and she considered the issues of risk raised by the mother.

22. The mother was observed as the primary attachment figure for the children, while the father was observed to be a secondary attachment figure due to the weekend time he had spent with them. The Court Child Expert opined at [40] that “the children appear to share close and loving relationships with both parents.”

23. The Court Child Expert recorded that the mother is happy for the children to spend time with their father, but this would need to be considered in light of any potential risk factors.

    SECTION 60CC FACTORS

24. As referred to above, the Court is mandated to take into account under s 60CC(2), the factors that are identified in determining what is in the child’s best interests.

    Section 60CC(2)(a) – What arrangements would promote the safety of the child and each person with care of the child?

25. As to risk, the mother contends that Y is at risk of sexual harm when in the care of the father and that his alcohol misuse over a significant period of time and his ongoing illicit drug use, in particular of illicit drugs, poses a risk to the safety of the children that can be ameliorated by a longer period of supervision.

    Alleged risk of sexual harm

26. The mother observed that the father was exhibiting “odd” behaviour towards their child Y. She states that when he would visit to spend time with the children he would often gravitate towards Y.

27. The mother stated there was an incident in or around early 2023, when the parties took their children to swim school and whilst the father was changing Y’s nappy he turned to close the cubicle door but realised that the mother was watching him after which he “swiftly turned back” when he saw her.

28. The mother further states that in March 2023 when she was changing Y’s nappy the father leaned over to wipe her bottom. The mother states that the father was “obsessed with wanting to change [Y’s] nappy.”

29. The mother expressed her concerns about Y’s behaviours, which she said presented more frequently over the past few months. The mother listed several examples of her concerns around Y’s behaviour, including an incident in around September 2024 where Y “caught her vagina with her hand” and said words to the effect of “tickle tickle”, an incident around the same time where Y started flicking X’s penis and an incident around November 2024, when the mother was changing Y’s nappy and she said words to the effect of “mummy don’t stick your finger up my bum.”

30. The mother also contended that the father bathed Y at odd times when it was unnecessary. The father explained in his evidence the necessity for bathing including that she had a bad nappy rash.

31. Regarding the allegation as to the risk of sexual harm to Y, the Court Child Expert reported that she believed the mother is genuine in her concerns about the children’s safety in the father’s care. While it is the father’s contention that the mother has made allegations of risk maliciously, the Court Child Expert opines at [47] that “it was not the assessment of this writer that [Ms Sleeman] has done this.”

32. At [48] the Court Child Expert opined that “the likelihood that [the father] has sexually abused, or would sexually abuse [Y], might be considered low.” Although, it is noted that any risk of harm has been mitigated by the children spending time with the father during the day in the current, more limited, arrangements.

33. This aspect of risk was identified by the mother’s counsel as a relevant factor in the determination of the issue of the period of supervision necessary to ameliorate harm to Y. I am not satisfied on the evidence that the father is or has been an unacceptable risk of sexual harm to Y. The evidence does not support such a finding, and this is not a factor that weighs in favour of a longer period of supervision.

    Allegations of long-standing misuse of alcohol and illicit substances posing a risk to the children if not supervised for the extended period of time

    Alcohol use

34. The mother raises numerous allegations of the father’s behaviour toward herself and the children during the relationship and post-relationship that raise issues of safety concerns for the children and the mother as their primary caregiver.

35. Following the birth of the children in 2022, the mother states that the father would often return home from work at 8.00 pm intoxicated. The mother contended that the father had a history of problematic alcohol use that continued after the children were born, including him becoming aggressive at times when intoxicated.

36. The mother and father engaged in medication in mid-2023, which resolved in the parties agreeing that the father would collect the children on alternate weekends, to be picked up at 8.00 am and returned at 5.00 pm on Saturday and Sunday. The parties also agreed that the father could spend time with the children on Friday from 3.00 pm to 6.00 pm if he did not see the children on the weekend.

37. The mother states she did not agree to the father having overnight time with the children due to her concerns about his mental health and alcohol use. The father spending time with the children was conditional on him finding suitable accommodation and providing the mother with a letter from his treating psychiatrist confirming his capacity to care for the children.

38. The mother contends that during the period between August 2023 and January 2024 the father did not once collect the children on a Friday. On the weekends, she stated that the father did not collect the children at 8.00 am as agreed but picked them up at a time that suited him. There were also times where the mother alleges the father did not collect the children at all.

39. However, as submitted by counsel for the father and I accept the evidence supports that the mother confronted the father about the inconsistent and unreliable time he had been spending with the children after which time, the father’s reliability in spending time with the children improved significantly. Between July 2023 and when the mother ceased time in October 2024, the father has been spending regular unsupervised day time with the children, largely without issue. This also is a factor that weighs against the need for a longer period of supervision.

40. The father agreed that if he was drinking to excess that this would negatively impact his capacity to care for the children. He stated in cross-examination that in the past he would drink more than he currently does. The father denied any problematical use alcohol since September 2022 and contended that he had consumed alcohol in an “appropriate” manner since that time.

41. The father was asked about his police record which included an incident in early 2024, where the police were called to a pub, due to the father’s concerning behaviour whilst intoxicated, where the father was found unconscious in a toilet cubicle. The father agreed that this incident demonstrated his significant overuse of alcohol on this occasion. However, he stated that this occasion was a “one-off” incident and maintained that he has not had problematic use of alcohol since September 2022.

42. The father was taken to an earlier incident in the police records which occurred in early 2023. On this occasion it is recorded that security forcibly removed the father from a venue due to his inebriated state and they restrained him until the police arrived to assist. The father agreed that his recollection of this occasion was vague due to his level of intoxication.

43. Counsel for the father submitted that the father’s current alcohol and substance use is not such a significant risk to the children as to warrant the need for supervision for longer than the father’s proposed period of six months and that any concerns that the mother would have will be assuaged by the agreed CDT testing to be undertaken within the next six months before the July 2025 period and the agreed hair follicle testing to be undertaken until that time.

44. In submissions, counsel for the father referred to the mother’s CDT testing results which were similar to that of the father (exhibit 12). I did not understand the relevance of the mother’s CDT results to the issue at hand. The CDT for both parents was in a range that was not considered problematic and is one measure of the parties’ respective alcohol use. However, it was not suggested, nor was there any basis on the evidence that I saw to suggest, that the mother’s conduct or her consumption of alcohol or drugs has in the past or in the future poses a risk to the safety of the children. She remains their primary carer; they live primarily with her.

45. The father to his credit was a frank and honest witness about his conduct when taken to matters in which he was involved with the police over the last twelve years. However, the father minimised the extent of his alcohol use both in his evidence to the Court and in his reports to the Court Child Expert, failing to disclose his more recent interactions with the police due to his excessive alcohol consumption.

46. The police records demonstrate a number of interactions that the father has had with the police and an interaction with ambulance and security staff, whilst he has been intoxicated, continuing after the children were born. Incidents while intoxicated involving the police were recorded from 2012 and 2013, which had been disclosed to the Court Child Expert, as well as more recent incidents in both early 2023 and early 2024.

47. Counsel for the mother submitted that the father’s long involvement with police when intoxicated together with the mother’s evidence about his behaviour when drinking and his own evidence about his drinking behaviour, clearly demonstrates his problematic use of alcohol. This contention is made out on the evidence.

48. The father demonstrated a lack of insight in respect of the impact of his behaviour when intoxicated. He maintained at various different points that he had not had any problematic use of alcohol since late 2022. But the records establish that in fact he did. I accept the submission that the father was an “inaccurate historian on his alcohol use” or its seriousness and that his consumption of alcohol has been problematic over a lengthy period of time between 2012 – 2024.

49. Counsel for the father submitted that the basis for the risk allegations against the father were not so significant that they necessitate the need for supervision for the longer period of time and that the requirement to undergo continued testing for the proposed six months adequately mitigates any concern in relation to the safety of the children. I do not accept that submission.

50. The alcohol use is a factor that, in my view, weighs in favour of a more conservative approach to the requirement for supervision.

    Illicit substance use

51. The mother stated there was an incident where the father offered the mother some of his ADHD medication to help the mother stay awake, after she expressed to the father that she was exhausted. The mother in her affidavit in reply, only then admitted to her own use of illicit drugs in the past and on one occasion after the children were born with the father.

52. In early 2023 the mother stated that she was using one of the father’s old phones whilst hers was being repaired. She said she looked through the messages on the phone and found a text message which appeared an exchange between the father and a drug dealer.

53. The father conceded to the family report writer that he had used illicit drugs in the past and continues to use the illicit substance of illicit drugs once every three months. In cross-examination the father confirmed that this continues to be the case. He was frank with the Court about his ongoing use of illicit drugs and he was frank with the Court Child Expert in relation to this. His hair follicle test records a positive result for illicit drug use.

54. There was also one occasion, outlined in the father’s criminal history, whereby the father was in possession of illicit drugs and was charged. The father was not convicted for this offence and instead received the benefit of a s 10. The father did not disclose this offence to the Court Child Expert (noting that he did receive a s 10).

55. The father last spent time with the children on 20 October 2024, when the mother unilaterally ceased time. Due to her concerns about the father’s use of substances, on 28 October 2024 the mother instructed her solicitors to write to the father’s solicitors requesting that he undergo both a CDT test and a hair follicle test. The father contends that the only motivation for the mother in ceasing time was the commencement of the proceedings to prevent her from leaving the country. I do not accept that that was the only motivation for the mother in circumstances where the father’s prior alcohol and drug use is an agreed fact.

1. On 14 November 2024, an order was made requiring both the mother and the father to undergo hair follicle and CDT testing. On 28 November 2024 the mother received the results of the hair follicle test from the father’s testing, which showed a positive test result for illicit drugs amongst other things. After receiving these results, the mother proposed the father spend professionally supervised time with the children through the E Contact Centre.

2. In cross-examination the father stated that he had not inquired into the supervision agencies proposed by the mother, stating that he did not think it was necessary for his time with the children to be supervised and stating that he believed it was “unfair.”

3. When the father was pressed about the necessity for supervised time with the children considering the concessions he made about his continued illicit substance use, he maintained that the supervision was not necessary and stated that his use of illicit substances does not impact his care for the children as he would not use illicit drugs or drink alcohol when the children are in his care.

4. The father’s conduct in not seeing the children if he was required to be supervised was difficult to understand, particularly in the context of an application for the mother to relocate to live in Country B. His answers in relation to these matters illustrated a lack of insight and a propensity to minimise the seriousness of the impact of use of illicit drugs and the impact that this could have on his capacity to parent. His frank concession that he would continue to use illicit drugs, but that it would not be harmful to the children if he was not impaired while caring for the children, is at best naïve. The use of illicit drugs is an obvious risk factor to the children. The father’s lack of insight about this weighs in favour of a longer period of supervision to ensure he is drug free.

   Section 60CC(2)(c) –Developmental, psychological, emotional and cultural needs of the children

   X’s needs

5. X has particular vulnerabilities due to his likely autism.

6. The Court Child Expert noted that Y appears to be developing well for her age, while X’s presentation was outside the norm for what is expected of his age. The Court Child Expert noted that the parents suspect X has autism, although there has been no formal assessment yet. The Court Child Expert opined that if X is diagnosed with autism, it is likely that a higher degree of care will be necessitated, along with the engagement of therapeutic supports.

7. The father said he was concerned about X’s development and hearing and had raised his concerns with the mother. In early 2024 the mother was approached by an educator at the daycare centre the children were attending with concerns about X’s development. The educator stated that he was displaying behaviours consistent with slow learning. Following this being brought to the mother’s attention, she made an appointment with X’s GP who referred him to J Hospital.

8. The mother said that X has been attending speech therapy every Friday since mid-2024. He was also referred to the hospital for an autism assessment, which is yet to occur. In November 2024 the mother received a letter from K Services informing her that X had been put on a waitlist for around 12-14 months to undergo an autism assessment.

9. Since July 2024, X has been regularly waking up during the night for several hours and has been difficult to settle. This has created an additional burden on the mother.

   Section 60CC(2)(d) – Capacity of the parents to provide for the child’s developmental, psychological and cultural needs

   The mother’s mental health

10. In or around April 2023, the mother had her first appointment with the psychologist Ms L about her concerns in her relationship with the father. The psychologist provided the mother with information about how to get in touch with the police and Family Liaison officer about the father’s behaviour. The mother also made an appointment around this time with her GP, Dr M, to discuss her concerns regarding the father’s behaviour towards herself and towards Y.

11. The mother states that around this time she began to feel very anxious and was unable to sleep. The mother made an appointment with a GP, Ms N, who suggested that she take anti-depressants; however, the mother declined. Instead, she was prescribed samples of melatonin to help her sleep. The mother states that these samples did not help her sleep and just made her feel drowsy.

12. Around May 2023, the mother had another appointment with an online GP to address her ongoing anxiety and sleep issues. After this appointment the mother was prescribed a medication in June 2023. The mother states that she uses this prescription when she is unable to sleep due to her stress and anxiety. Currently, she states she uses the prescription around three times a week. This was evidenced in the mother’s drug screen results (exhibit 13).

13. The mother medical records establish that the mother experiences anxiety, and her response is recorded as manifesting as symptoms of hypervigilance regarding her ex-partner, panic attacks, difficulty sleeping, racing of the mind and lower quality of life. The mother has been struggling to manage caring for the children which has become more taxing on her.

14. Counsel for the father, with reference to the mother’s hypervigilance and anxiety, contended that the length of supervision is not warranted and that the basis for the allegation of risk is “weak.” This contention was made by reference to the mother being hypervigilant re her ex‑partner.

15. It is uncontentious that the mother reported experiencing these effects, including being hypervigilant re her ex-partner, as a consequence of her anxiety. It follows that orders that may reduce the anxiety that the mother experiences would have a positive flow on effect on her parenting of the children.

16. The reality is that the mother will continue to be the primary carer of the children and that they will be entirely reliant upon her for their day-to-day care and needs, other than when they are spending time with the father. I accept the submission that the longer period of further supervision as sought by the mother may indeed reduce her anxiety which will have a flow on benefit to the children, that their primary carer is less anxious and less stressed in her day-to-day role as their carer.

17. This factor also weighs in favour of a more conservative approach in requiring supervision for the longer period as sought by the mother.

    The father’s mental health

18. In 2022 the father was diagnosed with depression and prescribed anti-depressants. He has ADHD and is medicated for this. The mother said that he had started to take this medication, after which his behaviour and interactions with the children began to improve. However, the mother contends that the father came off the anti-depressants after which she noticed his behaviour returned to being erratic and aggressive.

19. Exhibit 6 is a copy of the father’s application for a Medical Treatment Visa, which has since been refused. The father conceded in cross-examination that this visa application was for medical treatment relating to his current mental health. The father maintained that despite his visa application to remain in Australia for treatment in relation to his mental health, that this does not warrant any concern for his capacity to care for the children.

20. The father conceded that he currently has a mental illness that still requires treatment, however, provided no specific evidence about his mental health diagnoses or prognosis. But he did provide a letter noting that he has a current treating psychiatrist, Dr P.

21. This is not a factor that weighs either way in the determination of whether or not the period time should be shorter as sought by the father or longer as sought by the mother.

    Father’s lack of insight

22. The father lacks insight about the risk posed to the children by his use of illicit drugs and his drinking history. This is a relevant consideration that weighs in favour of orders for a longer period of supervision.

23. In cross-examination the father conceded that he continues to take illicit substances which he did not believe impacted his capacity to parent. Counsel for the mother submitted that this demonstrated a lack of understanding about the long term effects of taking drugs, a lack of insight about having to procure these drugs from criminal sources, the potential risk to the children to if they find these substances in the home, and the risk of his exposure and interactions with the police from being involved in the criminal conduct of obtaining and consuming illegal drugs. It is not mere recreational use; it is illegal conduct.

24. These submissions have merit, and they weigh in favour of a longer period of supervision.

    Section 60CC(2)(f) – anything else that is relevant to the particular circumstances of the child

    Vulnerability and young age of the children

25. Counsel for the mother submitted that the children are still very vulnerable and that if the father were to drink to excess whilst caring for the children or use illicit drugs his capacity would be impacted. The father gave evidence that he would not do that. Counsel submitted that the capacity concerns go beyond caring for the children whilst inebriated, stating that his overall mood and health can be impacted by consumption and in these circumstances his ability to parent may be at risk.

26. The special needs of X, together with the vulnerability of the children given their young ages, are important considerations in determination of the one issue in relation to the time frame for supervision, and weighs in favour of a more conservative approach to ensure the safety of these children, who are very young.

    Availability of the paternal grandmother to supervise

27. As referred to earlier, it was agreed by the parties that the paternal grandmother, if available, will supervise the father’s time with the children. She was present in Court and gave both a written undertaking and orally confirmed to me her willingness to take on the role of supervision and understood its obligations and responsibilities. I accept her evidence. I accept that she is a supportive mother and grandmother, and I accept that she will act in the best interests of her grandchildren.

28. No issue was taken in reply to the submission that the paternal grandmother, in her own affidavit, had given evidence that she was a significant support to her son and was willing to travel to Australia to support the relationship if necessary.

29. The requirement for supervision, provided the father is compliant with the agreed testing both CDT and for illicit substances, will cease after the 15-month period. For the father to spend time as supervised by his mother until that occurs has additional benefits, including for the children to spend time and develop their relationship with the extended paternal family and that supervision can occur in an environment that is less artificial and costly than a supervision centre. The fact that there is the availability of the paternal grandmother to supervise such time is a positive, whichever order is made.

    CONCLUSION

30. As referred to above the father does not pose an unacceptable risk of sexual harm to Y and the fact that he has previously had regular periods of unsupervised time with the children at least from July 2023 until October 2024 weighs against a longer period of supervision.

31. However, the identified factors as set out above, on balance, weigh more in favour of a more conservative approach to the time frame for supervision, particularly given the long period of time over which the father has engaged in problematic alcohol use, his admitted illicit drug use, the very young ages of the children, X’s likely special needs diagnosis and the mother’s acknowledged anxiety.

32. It follows that I am satisfied that the orders as sought by the mother for CDT testing for the next 15 months is the order that is in the best interests of the children and is the order that I will make.

33. I make the orders accordingly.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.

Associate:

Dated:       23 December 2024