Neman & Neman (No 2)
[2025] FedCFamC2F 1056
•4 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Neman & Neman (No 2) [2025] FedCFamC2F 1056
File number(s): SYC 3682 of 2023 Judgment of: JUDGE COPE Date of judgment: 4 August 2025 Catchwords: FAMILY LAW – Application for Review – Interim parenting – substantive review of a Senior Judicial Registrar’s decision about child’s unsupervised time with the father – the father has commenced unsupervised time – the mother now accepts unsupervised time – the father seeks to significantly increase time as of 2026 and enrol the child in school close to his home about 100kms from where the child lives with the mother – orders made to vary the days on which time occurs in 2025 – orders made for time in 2026 – overnight time on special occasions only – changeover location moved to the midway point – order for vaccinations - Application otherwise dismissed Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CC, 60CG, 61CA, 61D, 61DAA, 61DAF, 65D, 65DAB
Federal Circuit and Family Court of Australia Act 2021(Cth) ss 190, 191, 256
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) rr 1.04, 14.05, 14.07
Family Law Amendment Bill 2023
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Redmond & Redmond [2014] FamCAFC 155
SS v AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 109 Date of last submission/s: 21 July 2025 Date of hearing: 21 July 2025 Solicitor for the Applicant: Ms Jones, Conditsis Lawyers Solicitor for the Respondent: Ms Rabadi, TRA Law Independent Children's Lawyer: Ms Blundell, Jennifer Blundell & Associates ORDERS
SYC 3682 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NEMAN
Applicant
AND: MR NEMAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
4 AUGUST 2025
THE COURT ORDERS THAT:
1.Orders 1 – 4 of the Order made on 12 June 2025 be discharged.
2.X (‘X’), born in 2021, shall spend time with the Father as follows:
(a)As of the date of this order, each Tuesday from 10:00am to 4:00pm and each Sunday from 10:00am to 4:00pm;
(b)On Father’s Day from 10:00am to 4:00pm;
(c)From 10:00am on 25 December until 10:00am on 26 December each year;
(d)From 7:00pm Easter Saturday until 7:00pm on Easter Monday commencing in 2027 and each alternate year thereafter.
3.Upon X commencing Kindergarten in 2026, X shall spend time with the Father as follows:
(a)Commencing in the first week of the school term, each Tuesday from 3:00pm to 6:00pm, with such time to occur in Region B;
(b)Commencing on the second weekend of school term 1, each alternate Saturday from 10:00am to 4:00pm and each Sunday from 10:00am to 4:00pm;
(c)On Father’s Day from 10:00am to 4:00pm
(d)From 10:00am on 25 December until 10:00am on 26 December each year;
(e)From 7:00pm Easter Saturday until 7:00pm on Easter Monday commencing in 2027 and each alternate year thereafter.
4.Changeover pursuant to Order 2 and Order 3(b)-(e) above shall be facilitated by a supervision agency, with the location to be C Venue at Town D or another location as determined by the supervision service.
5.For changeovers pursuant to Order 3(a) above, the Father shall collect X from school, if a school day, and otherwise changeover shall occur at Suburb E McDonalds and be facilitated by a supervision agency.
6.The Mother shall be permitted to organise for X to obtain her immunisations in accordance with a catch-up schedule.
7.The Mother shall be permitted to provide a copy of Dr F’s Single Expert Report dated 25 April 2025 to her counsellor and psychotherapist, Ms H for the purposes of the mother’s therapeutic support only.
NOTATIONS:
A.The supervision agency referenced at Order 3 and 4 above, is G Contact Service in accordance with the Order made on 26 June 2025.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
INTRODUCTION
An Application for Review was filed by the mother on 19 June 2025 seeking a review of a decision made by a Senior Judicial Registrar (“SJR”) on 12 June 2025 in relation to parenting matters. The father is the respondent to the application for review and the applicant in the substantive proceedings.
BACKGROUND
The Parties commenced living together in or about 2015, married in 2020 and separated on 18 March 2023. That was a relationship of about 8 years.
There is one child of the relationship, being X born in 2021. She is age 4 years. The child lives with the mother. In accordance with orders made by the SJR on 12 June 2025 she has commenced unsupervised time with the father on Tuesday and Thursday each week from 10:00am to 4:00pm. Time has also been ordered on Father’s Day and Christmas Day from 10:00am to 4:00pm on each day and there is provision for other times as may be agreed in writing. Changeover is to occur through a nominated contact supervisor at the Suburb J Library.
PROCEDURAL HISTORY
The father commenced the substantive proceedings on 25 May 2023. By that application he seeks final orders for joint long term decision making and a week about living arrangement to commence on the child’s sixth birthday. On an interim basis he proposed that the child spend time as agreed between the parents but for two weeks to occur on each second day from 9:00am to 7:00pm, thereafter each week from 9:00am Friday until 7:00pm Sunday and that the child “spend time” with mother during the times she is not with the father. He also sought orders that his application be heard urgently and on an ex parte basis.
The mother filed a Response on 29 June 2023. By that application she sought final orders that the child live with her and she have sole parental responsibility. She sought to particularise final orders for the child’s time with the father at a later date. On an interim basis she proposed the father spend time with the child supervised by an accredited supervision service on two occasions each week for no longer than three hours on each occasion.
Orders were made by consent on 4 August 2023 for the father to spend supervised time with the child each Tuesday and Thursday for three hours, pending the contested interim hearing. That interim hearing took place on 12 September 2023 and the decision was delivered on 6 October 2023. In accordance with those orders the father’s time continued to be supervised by a professional service, he was ordered to undertake hair follicle testing, to enrol in drug and alcohol rehabilitation, undertake an anger management course and both parties were ordered to do a parenting after separation course. Orders were also made for the parties to communicate via a parenting app. By consent a psychiatric report was ordered.
On 20 November 2023 orders 2 – 9 inclusive of the orders made on 6 October 2023 were discharged, being the time spending orders, drug testing and courses to be undertaken by the father. Orders were instead made appointing an independent children’s lawyer, requiring the father to submit to hair follicle testing by 4:00pm on 27 November 2023, and for the father to consult with his treating GP as to whether he would be assisted by drug and alcohol rehabilitation. Orders were made for supervised time between the child and the father for two hours each Tuesday and Thursday commencing 21 November. Orders were made for ongoing hair follicle testing as requested by the independent children’s lawyer.
A Family Report was ordered on 8 December 2023. The parties jointly appointed Dr F, a child adolescent and adult forensic psychiatrist to provide a single expert report.
The matter was listed for another interim hearing on 19 March 2024. On that date consent orders were made for the father to spend supervised time with the child for two hours each Tuesday and Friday but using a different supervision service, an additional two hours in the week after Easter Sunday and on the child’s birthday, and 28 hours of makeup time in the form of an additional 30 minutes on the twice weekly time ordered. Notations to the order reflect that the mother maintains that the previous supervisor did not provide adequate supervision and that a conflict of interest had arisen. The father maintains that he and that supervision service did not pose a risk of harm to the child and that adequate supervision that had been provided, but had consented as he wished to resume time with the child.
The matter was listed for another interim hearing 29 August 2024, with the father having filed an Application in a Proceeding on 4 July 2024. On 29 August 2024 leave was granted to release documents for use in apprehended domestic violence order proceedings. The balance of the application was put over to 6 September 2024. That date was subsequently vacated.
The applicant filed another Application in a Proceeding on 27 December 2024 which was listed for hearing on 21 January 2025. That hearing was adjourned part head, with the notations reflecting there was a current child protection investigation into unacceptable risk arising from the child’s supervised time with the father on 18 October 2024. The matter was listed for finalisation on 23 May 2025.
When the matter was heard on 28 March 2025, the notations reflect that the court was advised of the following matters:
(a)No time had occurred since November 2024.
(b)The supervision service, K Contact Service, had advised the parties they were unable to continue to work with the family.
(c)The mother informed the court in December 2024 the NSW police and the department had an open investigation.
(d)The father informed the court he had not been contacted by or interviewed by the police.
(e)The mother advised the court the child was at risk of harm when spending time with the father supervised by K Contact Service and urged that the only way to ensure the safety of the child spending time with the father was at a supervised contact centre.
(f)The court was also advised that the police and departmental investigation was closed and the parties were in receipt of information regarding that investigation.
The interim hearing was adjourned to 29 May 2025 and the decision delivered on 12 June 2025. Those orders provided for the father to spend time with the child on Tuesday and Thursday 10:00am to 4:00pm, Father’s Day, Christmas Day and other times as agreed between the parties. That time was to be unsupervised but with the changeovers facilitated and supervised by K Contact Service. This is the decision the mother sought to review, filing the Application for Review on 19 June 2025. As noted earlier she now accepts the unsupervised time and it is the competing proposals for time in 2026, changeover location and other child related matters that now require determination.
By consent on 26 June 2025 the service to assist with changeover was changed to G Contact Service, with a notation that K Contact Service terminated its service agreement with the parties citing the mothers conduct as the basis. The mother disputes the assertions made by K Contact Service.
There have been other court events, not only of a procedural nature but also to deal with a number of subpoena objections. On 4 July 2025 the matter proceeded to a compliance and readiness hearing. At that time an order was made that no further Applications in a Proceeding could be filed without the leave of the court noting that six Applications in a Proceeding and three Applications for Review had been filed prior to that date.
ORDERS SOUGHT
The Application for Review filed by the mother on 19 June 2025 seeks to revert to supervised time at a contact service. The mother has however softened her position noting that unsupervised time has occurred on a number of occasions to date. She now seeks orders as attached her Outline of Case document and summarised in her affidavit as follows:
·Order 2A in respect to time occurring each Tuesday and Sunday instead of Tuesday and Thursday;
·Order 4 in respect to the changeover location – seeking changeover in a mid-way location rather than at Suburb J Library which is close to the father’s home;
·Orders for time once X commences kindergarten in 2026 – limited to day time contact;
·That the mother be permitted to organise X’s vaccinations by way of a catch-up schedule, noting that the child has been unvaccinated; and
·That the parties facilitate X engaging with and attending upon a child therapist.
The father by his Outline of Case document seeks orders summarised as follows:
·The parties agree on a primary school in the Suburb L area in Region M, Sydney (close to his home) and if unable to agree then the Independent Children’s Lawyer (ICL) nominate the school;
·If the school determines X should commence in 2027 rather than 2026 then the parties will follow the school’s recommendation;
·Until she commences school the father will spend time with the child each Tuesday and Sunday 10:00 am to 4:00 pm and on special days - being the father’s birthday, the child’s birthday, Father’s Day, Christmas Day and Easter Sunday;
·Once the child commences school the father proposes overnight time each Wednesday to Thursday and then 4:00 pm Friday to 4:00 pm Sunday each week, one week in the mid-year school holidays, half of the Christmas holidays and time on special days. In short, the father proposes the child live with him each and every weekend and an overnight during the week;
·Changeover at the Suburb J library to be supervised by G Contact Centre;
·Make up time where time is missed due to reasons beyond the father’s control;
·An expedited final hearing – this was not pressed at the hearing; and
·A proposal for the mother to provide a catch up vaccination schedule and father to respond within 21 days. Failing agreement, the parties to jointly nominate a suitably qualified practitioner such as a paediatric immunologist or GP to review the schedule and provide a written recommendation.
At the commencement of the hearing the court enquired whether the parties had taken the opportunity for discussions while waiting for the independent children’s lawyer to become available. They had not. A review of each party’s position reflected that they agreed the father’s unsupervised time on the Thursday should move to occur on the Sunday in 2025 and that the father should have time with the child on Father’s Day. All other issues remained in dispute.
The ICL’s position was mainly in support of the mother’s position, but with overnight time for the child with the father at Christmas and Easter.
RISK FACTORS/ ISSUES FOR DETERMINATION
As outlined in the single expert report,[1] the mother alleges family violence perpetrated against her by the father including physical assaults, sexual assaults, financial abuse, verbal abuse, denigration, threats to kill while holding a gun and an occasion where he put his hands around her throat. These allegations are denied by the father. There were no reports to the police prior to separation but the single expert noted the clinical records reflect reports of family violence by the mother to her doctor. The father acknowledged that he made suicidal comments but he denied being suicidal.[2]
[1] Report of Dr F released on 30 April 2025 at pages 24 - 27
[2] Report of Dr F released on 30 April 2025 at page 29
The father expressed concern to the single expert about the mother’s mental health and reported substance use.[3] Those concerns were not pressed at the Review hearing. The focus of submissions was on the alleged unfounded nature of the mother’s concerns about the father with submissions made that this reflected a true intention on the mother’s part of damaging or severing the child’s relationship with him.
[3] Report of Dr F released on 30 April 2025 at page 58
The father advised the single expert he did not currently use drugs. He does however have a history of same summarised as follows:[4]
·His reporting of recreational cocaine use in his early 20s was inconsistent with hospital records that reflected weekly use in 2016.
·He conceded use of benzodiazepines.
·Hospital records reflect cocaine use in 2020.
·The hair follicle test the father did on 23 November 2023 was positive for cocaine and metabolites.
·The hair follicle test the father did on 28 March 2024 was positive for cocaine and metabolites
·The records reflected use of alcohol in conjunction with cocaine.
[4] Report of Dr F released on 30 April 2025 at page 37
The single expert formed the view the father minimised his historic drug use. She noted, however, that subsequent hair follicle tests had been clear of drugs and at the time of the interviews the father had been drug free for eight months. That was a 15 month period at the time of the Review hearing.
EVIDENCE
The Parties
Each party filed an Outline of Case document setting out material relied on. Material was read into the record and that was considered together with material tendered in accordance with the Exhibit List and the written and oral submissions of the parties.
The father was granted leave to rely on material filed out of time. That was opposed by the mother however given that her case had substantially changed since the Application for Review had been filed, the leave was granted. I do not consider however that the mother’s failure to file an affidavit in reply is an acceptance of the father’s evidence. That is because the mother’s position was that the evidence should not have been accepted by the court such that the father’s evidence was challenged through those objections but not in affidavit form.
Expert Evidence
The court was assisted by single expert report of Dr F released on 30 April 2025 – noting interviews were undertaken on 5 August 2024.
Dr F is a child adolescent and adult forensic psychiatrist. In undertaking the detailed report extensive material was reviewed and the parties and child were interviewed and assessed. The relevant s 60CC factors (as at that date) were assessed and are addressed in the consideration and determination later in these reasons.
LEGAL PRINCIPLES
Review of a Registrar’s Decision
This is a matter where the court is asked to review a decision of an SJR. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”) provides for judicial supervision of orders made by Registrars under delegated authority by enabling a party to seek a review of an exercise of that power.
Pursuant to r 2.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 Family Law Rules”), the rules which form the Family Law Rules 2021 apply to Division 2 matters including that presently before the court.
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules 2021”) sets out when a party may apply for a review and rule 14.07 sets out the procedure. Noting that today is a hearing de novo.
Sections 190 and 191 of the FCFCOA Act relevantly set out the overarching purpose of civil practice and procedure provisions. The core principles are set out in the Central Practice Direction – Family Law Case Management (“Central Practice Direction”). When participating in proceedings in this Court the parties must act in accordance with r 1.04 of the Family Law Rules 2021 which provides:
The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Interim Parenting
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court is generally guided by s 60B of the Act which sets out the two objects of Part VII of the Act. Those objects are:
(a)to ensure the best interest of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In accordance with s 65D of the Act, the court may make such parenting orders “as it thinks proper”, subject to s 65DAB which requires the court to have regard to any parenting plan to the extent that doing so is in the best interests of the child. Very wide powers.
As of 6 May 2024, the Family Law Amendment Bill 2023 now applies to children’s matters. Significantly what has changed as relevant to these proceedings are the s.60B objects, the s.60CC factors and the legislative pathway.
In determining what parenting order to make, the best interests of the child remain the court’s paramount consideration. How a court is to determine what is in child’s best interests is assisted by s 60CC.
The court will ensure that any Order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG).
In M v M (1988) 166 CLR 69, the High Court held that a parenting Order ought not be made if such Order exposes the child to an “unacceptable risk” of harm. The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child and is not limited to sexual abuse. I am to consider “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards. The Full Court in Isles & Nelissen[5] has clarified that the test is one of possibility rather than probability with a consideration of the severity of harm that would arise form the risk. Nothing about the new legislation impacts or varies the application of those tests.
[5] Isles & Nelissen (2022) FLC 94-092
THE LIMITATIONS OF AN INTERIM HEARING
The Court is hearing the matter on an interlocutory basis. The Court’s determination therefore is based only on the documents before it, including the affidavits read, the documents tendered along with the submissions of the parties’ legal representatives. There is no provision for evidence to be tested in cross-examination, and so the Court cannot make findings of fact about issues in dispute. The court is left to review the respective claims and weigh up the questions of risk and do the best that it can with the information to hand.
The Full Court in Redmond & Redmond [2014] FamCAFC 155 has made it clear that the Court does not need to wait until the last piece of evidence is to hand prior to making a decision. The overriding factor must always be the safety and wellbeing of the child.
What the court must decide at this interim stage centres on child protection issues. The court must decide the level of risk to the child in the care of each parent. In that process the court will take into account the Full Court decision in Deiter & Deiter [2011] FamCAFC 82 at [61]:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In SS v AH [2010] FamCAFC 13 in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, the Full Court stated as follows:
100. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
What all of that means is that at an interlocutory hearing the court cannot ignore allegations made about risk. Because those issues are at the stage of allegations that are denied and no findings have as yet been made, does not mean that there is no risk for the child. The court must weigh the evidence in the balance and the overriding consideration will always be the safety and well-being of the child X.
CONSIDERATION
In the process of making this determination, while I may not address each and every piece of evidence in these reasons, I have considered the totality of the evidence and the section 60CC considerations in the context of the paramountcy principle.
In making any determination about care arrangements for children, safety must be at the forefront of the court’s mind. The risk factors alleged by the mother are family violence, and the allegations that the child is at risk in the father’s care through inappropriate touching and drug use by the father. The risk factors alleged by the father are the allegations that the mother is alienating the child and that she is the greater risk of harm.
I cannot, as suggested by the father, ignore the allegations of family violence simply because the mother has not detailed those in her affidavit for this Review hearing. Those allegations are detailed in the single expert report and there is an ADVO in place. Lapsing or otherwise, there is legislation in place which grounds the circumstances in which an interim ADVO is made. They are not handed out like lollies; there are grounds which must be satisfied before an order is made in the first place, whether it is final or provisional.
The father’s affidavit filed on 21 July 2025 reflects that the interim family violence order was made on 27 May 2025. The matter had been listed for trial that day but was adjourned at the request of the prosecutor to allow a review of the evidence. The lapsing DVO made until 25 November 2025. It is unchallenged that it will lapse on that date unless breached by the father. He gives evidence as to the police report including an opinion as to the mother’s motivation in making the application - being to gain the upper hand in these proceedings.
The father asks the court to consider that he has not been charged with any criminal offences, that there are orders for unsupervised time and no criticism arising from that time has been made. Indeed, the court can accept that to date all has gone well as the mother accepts that unsupervised time should continue.
The family violence allegations will be tested at trial and findings made about them. I cannot make findings about those allegations but nor can I simply ignore them where, if true, that may mean the child is placed at significant risk of harm and may explain some of the mother’s more challenging behaviours. On the other hand, if findings are made that the allegations of family violence are untrue or exaggerated then the trial judge may well make findings adverse to the mother.
So while the father submits that there is no evidence that the child is unsafe in his care, there are allegations of family violence perpetrated by him, there is an allegation of inappropriate behaviour by the father during supervised time, and there is his history of drug abuse with the single expert of the opinion that he was in early remission at the time of interviews – noting that was almost a year ago. Certainly, such a long period of abstinence is impressive, and the father is to be commended for his commitment to remaining drug free.
I have considered the letter tendered from his psychologist[6] to the effect that the father is now engaging in counselling to address stress and anxiety around “losing” his daughter, psychoeducation to prevent drug relapse and understanding and better managing relationships. It is heartening that the father has finally commenced this engagement. It was first ordered in 2023, noting that order was vacated. Given the history reflected in the single expert report and the concerns that he has minimised his past drug use, this is a wise move on the father’s part. He is in the midst of highly litigious proceedings and that places an enormous stress on parties, and it is sensible to ensure the work he has done to remain drug free for 15 months continues. If the father can remain drug free then that can only be of benefit to the child.
[6] Exhibit M2
Having considered those matters I cannot agree that there is no evidence of risk; there is evidence of risk as outlined above but that evidence is challenged by the father and has been addressed, at least in part so far as drug use is concerned through the testing and now the therapy, and the allegation of inappropriate touching is addressed by independent evidence from the supervision service.
The father submits that it is the mother who poses a risk of harm to the child. Those are allegations that the court must consider but they do not cancel out the other allegations of risk in this matter. It cannot be argued that that we just forget the allegations made by the mother as to the risks that may lie with the father because there is evidence that the mother has behaved badly at times, if the opinions of the contact supervisors are accepted.
The fact that three different services have provided written criticisms of the mother is indeed concerning. I have however considered that the correspondence, in particular Exhibit F4, is highly critical of the mother, and in that case comes from a person against whom the mother has lodged a formal complaint. That correspondence is highly emotive. It is hardly a calm, rational recitation of concerns. It is instead a full blown and rather vitriolic attack. That may be justified, it may not, but it raises questions about the reliability of the evidence. That is however a matter for findings at trial. I have also considered that victims of family violence are not always consistent and reliable in their conduct or their approach to challenges and at times do not present well.
The father asks the court to consider that if his concerns are correct, then the mother is maliciously and deliberately attempting to destroy his relationship with the child; first through the unilateral relocation, and now through false allegations and attempts to alienate him from the child. He asks the court to consider the differences between what the child says when she refuses or resists time with the father and her pleasure in his company. This resist /refuse may indeed be due to the mother influencing the child either deliberately or inadvertently. Or it may be due to the child having lived in a house where family violence was routinely perpetrated by the father. It is not uncommon for children who have lived with family violence to find pleasure in time with a loved parent but to be anxious in advance of that time for fear of further violence. This court is not in a position to make findings about any of that. Certainly, I have considered that the single expert was concerned about the child’s exposure to the mother’s belief system about the father.
I have considered the mother’s evidence that she is seeking psychological supports to address the issues raised in the single expert report. I commend her for taking that step. She has also stepped back from her former insistence on supervised time and now seeks only that unsupervised time be limited to daytime only at this interim stage.
So, while the father argues that the mother poses the far greater risk, the court simply cannot make that finding at an interim hearing. It is but one of the risks the child faces.
If the mother is correct in her fears about the child in the father’s care, then the risks are great indeed. That is ameliorated by the time that has been spent in supervision, the father now engaging in therapy and the clear drug screens. The mother’s fears of inappropriate touching are addressed in the supervision reports, which state that no such touching occurred, despite what the child has said to the mother.
If the father is correct in his fears that the mother is attempting to alienate the child, then the risk of emotional and psychological harm to the child is very real.
X was three years old at the time of the interview with the single expert such that her views were not sought. The single expert did however express that she is securely attached to both parents and has a sense of connectedness to both parents.
The father asked the court to consider the contact supervisor notes tendered; that they reflect the child routinely asking to spend more time with her father and that the time was positive. I have considered that evidence. I have also considered that those records also reflect some resist and refuse at times.
The single expert noted that X is of Country N and Country O heritage. She was of the opinion that X’s presentation may indicate ADHD and that as she gets older or it affects her functioning she may benefit from further testing. She noted however that trauma symptoms often present as behavioural symptoms which can mimic those of ADHD.
The single expert expressed concern for X in the future if she is repeatedly exposed to the parental conflict, and if the mother continues to denigrate or instil fear of the father in her. She did not however make any recommendations for therapy for or assessment of the child at the current time.
The single expert was satisfied that each parent has a good understanding of X’s needs. She spoke positively of each parent’s parenting style.
The court has concerns about capacity of both parents arising from the risk factors addressed earlier in these reasons. The court urges both parties to review the single expert evidence with an eye to the recommendations for courses and counselling. The court has considered that each parent gives evidence of taking steps to address those concerns and, through that, both parents are seeking to ensure that risks for X are minimised.
Dr F considered the likely psychological harm to the child if she continues to be exposed to the parental conflict. The court will focus on orders that will likely reduce parental conflict and minimise risk for X.
Dr F expressed the opinion that the mother had periods consistent with a major depressive episode and indicators consistent with a diagnosis of borderline personality disorder. She is of the opinion that the mother has a “pattern of anger-fuelled reconstruction of the current narrative” and is clearly sceptical as regards the risks the mother perceives in the father[7].
[7] Report of Dr F released 30 April 2025 Pages 52 - 53
Dr F expressed the opinion that the father has a diagnosis of substance use disorder, “specifically stimulant use disorder (cocaine) – moderate severity in early remission” and indicators also consistent with a diagnosis of borderline personality disorder. She expressed the opinion that he may have normalised aggression in close relationships and that he may have experienced a major depressive episode.[8]
[8] Report of Dr F released 30 April 2025 Pages 53 - 54
The father submits that Dr F was troubled about the mother exposing the child to a loyalty conflict. It was submitted that if the mother continued to denigrate the father, fear may be instilled in the child. I have considered that submission however that was only one of the many concerns expressed in the report. The father’s submissions failed to acknowledge Dr F’s opinions as expressed about him and that there are great complexities to the issues with both parents.
The father’s submission that the mother is vexatious in her concerns and allegations in a bid to destroy the father/child relationship is simplistic. It overlooks the other side of the coin and the positives that Dr F saw in the mother. As explored by Dr F, if the mother’s evidence as to family violence in the relationship are true, then her motivations and belief system are likely to be far more complex. Certainly, Dr F perceived a shift in the mother’s view of the father, as she recognised that risks could be mitigated by the father engaging in treatment, maintaining good mental health and being drug free.[9] Dr F also considered that the mother has a capacity to facilitate and encourage a close and continuing relationship between the child and the father.[10]
[9] Report of Dr F released 30 April 2025 Page 57 at line 1715 - 1720
[10] Report of Dr F released 30 April 2025 Page 58 line 1735 - 1740
While Dr F saw positives in the father, she also expressed concern about a potential prioritisation of his own needs above that of the child in his expressed desire to become X’s primary carer.[11] She expressed the opinion that each parent exhibits a degree of anger towards the other and a sense of hurt, but that was likely to attenuate over time once the proceedings were over and with the assistance of therapy.[12]
[11] Report of Dr F released 30 April 2025 Page 58 line 1741 - 1750
[12] Report of Dr F released 30 April 2025 Page 58 lines 1758 - 1761
The father argues that if the child attends school and experiences changeover closer to his home, it will allow for improved relationships with both the extended maternal and paternal family. There is no evidence before the court from extended family members at this interim hearing. I have considered that each parent has the capacity to facilitate extended family relationships, particularly now the father is spending greater periods of time and that time is no longer supervised.
The father made submissions as to the mother’s history of withholding. If the mother held genuine and well-founded fears for the child’s safety and wellbeing, then that conduct may be said to have a reasonable excuse. If findings are made adverse to the mother, then the opposite applies. The court can consider circumstances such as the withholding coinciding with the refusal of the father to change contact centres but the meaning of that is beyond an interim hearing. The father submits that the mother withheld for no reason, but that is not the mother’s evidence. The court has differing versions of events and motivations and cannot make any such finding as sought by the father.
I have considered the evidence from the contact centres. I have considered that evidence is not yet tested. I have considered that it is persuasive evidence as it appears four centres have withdrawn their services and in doing so are critical of the mother.
DETERMINATION
As a preliminary issue the father asked the court to consider that the initial relocation by the mother with the child in or about May 2023 was a unilateral relocation. He submits that is an underlying pervasive issue which should inform the decision to be made. I have considered that submission in making this determination but again it does not override the risk factors each party alleges.
Time spending 2025
The parties are in agreement that for the remainder of the 2025 year the child should continue to see the father twice a week from 10:00am to 4:00pm – and they also agree those days should incorporate one weekend day. That makes eminent sense and the court is satisfied that it is in the child’s best interests that she spend time with the father from 10:00am – 4:00pm on Tuesday and from 10:00am – 4:00pm on Sunday each week.
I do not propose to make the orders sought by the father for time spending on the father’s birthday and the child’s birthday. I agree with the Independent Children’s Lawyer that this involves significant travel for the child on those special days when instead she can simply have a second celebration either before or after the event.
The father proposes that time on Easter and Christmas Day be extended to include overnight time while the mother proposes that time remain daytime contact only. The ICL supports the father’s position. She submits that in five months’ time, there would be no reason why an overnight on Christmas Day could not occur. She expressed a similar view as to the father’s proposal for overnight time at Easter. In her opinion the orders sought by the father for those two special occasions were appropriate.
I am of the view that there should not be any rush to overnight time. The single expert and the authorities all urge caution and a gradual approach. I am of the view that introducing overnight on special days only is the perfect cautious and gradual approach; it allows the first overnights to be on those special occasions where family and celebrations will create a positive environment. For those reasons I will make orders for Easter and Christmas as proposed by the father.
Time spending 2026
The mother opposes the father’s application to increase time in 2026 to incorporate significant overnight time. Her proposal is that time should remain daytime only, and shift to two days each alternate weekend. She concedes that 12 days between time with the father would be too long for the child and therefore proposes that the father travel to the area where the child lives to spend time with the child after school for three hours each Tuesday. In support of this she submits:
(a)The father gives evidence of having flexible work hours;
(b)Her proposal would allow the father to attend the child’s school, meet her teachers and be involved in her education;
(c)Starting school in 2026 will be a significant change for the child. To also start overnight time three nights each week with the father is not in line with the single expert recommendation for gradual change;
(d)The child will not have turned 5 years when she commences school in 2026 so a cautious approach to overnight time is urged;
(e)The cautious approach is also urged because of the father’s history of substance abuse. Although the clear hair follicle tests since April 2024 were conceded, the court was referred to the evidence of the father’s treating therapist that he had attended only one session regarding drug and alcohol relapse prevention at the time of the report.
The father submits that time should be significant and substantial if not equal as there is no risk in his care and further submits that this is supported by the single expert. I do not agree. As is clear from these reasons I do not accept that the mother’s failure to address family violence in her affidavit allows the court to ignore the issue. This determination is about the child’s best interests, and the legislation is clear as to safety being a significant issue in that process.
On the father’s proposal X would do a lot of travelling or the mother would be forced to relocate. The ICL expressed confidence that the court would not make interim orders for the child to commence school 100kms from where she currently lives or for the child to live with the father on an interim basis. She was correct. The court will take a slow and cautious approach with the history and risk factors in this matter. For those reasons the mother’s proposals for time in 2026 are preferred. This is particularly so for school days and special days where travel will be minimised.
For the same reason that I made orders as proposed by the father for overnight time on Christmas Day and Easter in 2025 I will make those same orders applicable in 2026 and thereafter.
School Enrolment
The child currently attends P Preschool and Q Preschool near where she lives with the mother. She is due to start Kindergarten in 2026. The mother seeks no orders about school as her view is the child should simply follow the pathway open to her at her current education facilities and feed into kindy in her local area. The father wants the child to be enrolled next year in a school in the Suburb L area near where he lives. The ICL does not support the child being enrolled in a school in Region M Sydney when she lives in Region B. She supports the mother’s orders as being the most practical.
I do not propose to make interim orders that in 2026 X attend school 100kms from where she lives with her mother and where she has lived for over two years. The father’s submission that because the mother unilaterally relocated the child in 2023 the court would be justified in this determination was not persuasive.
To make orders to change a long-standing status quo on an interim basis is beyond the scope of what the court can do in the circumstances of this case. There is no evidence that satisfies the court to make such a substantial change. None of these issues are new; what is new is that the father now has the opinion of third parties who agree with him. As noted during submissions, however, the court is unable to make findings. The parties are at odds about so many risk factors – the alleged family violence, the extent of the father’s historical drug use - although it appears to be conceded that up to late April 2025[13] he had 15 months drug free. I am therefore unable to make the findings urged upon me that the mother has acted maliciously and deliberately to undermine the father’s relationship with X, not just in the relocation but in her subsequent withholding of the child and the allegations she has made about the father.
[13] the most recent hair follicle test
To make orders that the child be enrolled in school in the Suburb L area is to enrol her 100km away from her primary home, requiring her to travel 200km return to school each day. That makes no sense, particularly when you factor in busy peak hour traffic. That application can only be a back door relocation to seek the mother’s return to Region M Sydney. Such an application will not be determined at an interim hearing after two years. That is a matter for trial.
The father made submissions to the effect that the single expert supported a move to substantial and indeed equal time. This was disputed by the mother and I was unable to find such a recommendation in that report. If I am wrong about that the report also says that any changes to the child’s living arrangements must be gradual.[14] There is nothing gradual about the father’s proposals for the child’s education or indeed her living arrangements in 2026. For those reasons I decline to make the orders as proposed by the father.
[14] Report of Dr F released 30 April 2025 Page 60
Changeover location
For changeovers on the Tuesdays in 2026 the mother proposes those occur in the region where the child lives. Given that the time is to occur after school and for a period of three hours only I propose to make orders in those terms. It is not in the child’s best interest to travel any distance mid-week after school for a relatively short time.
The mother proposes to move the location for the other changeovers to a halfway point between herself and the father. In accordance with the current orders the mother is required to do all the travel and prior to that the father has done the travel. It is undisputed that the parties live about 100km apart, such that if the mother does the travel she must either do two round trips of about 200km or wait in the area for six hours while the child spends time with the father. Whilst it appears to be undisputed that the mother has extended family in the area, it is not the same as being in your own home or workplace.
The mother submits that while the child will always be required to do the travel, if the changeover location is moved to the halfway point, the child can get up later in the morning and will be home earlier in the day, such that what is currently a long day will be significantly improved. The mother also submits that undertaking all the travel impacts on her ability to study and work.
The father’s position is that up until the current orders he did all the travel - in effect his submission means that in his view it is the mother’s turn. He further argues that it is no longer appropriate for him to do all the driving or that the child should be limited to an area to suit the mother’s convenience. I have considered that the mother is not proposing changeover continue where she lives but rather that it occur at the midway point. It is the father who seeks a changeover location now that is convenient to him. The court understands the basis for that and his frustration that the distance has been created by the mother’s relocation, but the decision of this court will be guided by the best interests of the child and not what is fair for the father, or indeed for the mother.
The father argues that meeting in the middle will halve his time with the child. The mother disputed this submission. No independent evidence of the estimated travel time was provided however it seems unlikely that travel of about 50km will take an hour and a half, even in Sydney traffic. Currently the six hours the father spends with the child involves little travel time.
The father submits that by seeking to vary the changeover location, the mother is seeking to reduce his time with the child. I have however considered that travel is a real part of the equation where the parents live so far apart, and I am uncertain why travel time cannot be fun time. The father does not have to set the child up with an iPad and ignore her – they can sing songs, tell stories, and play games. Extended family could join them for the travel, and some of the time could be spent on outings on the way or in the area of the changeover location. I therefore do not accept the submission that moving the changeover location would reduce the child’s time with the father. It simply places a greater burden on him to make that part of their time together productive.
The father submits that the mother’s family are in Region M Sydney, and thus available to spend time with the child and maintain connections with her if changeover is near his home. It is however a matter for the mother to choose when and how she facilitates those extended maternal relationships.
The father submits that the child should be enrolled in school in Region M Sydney and therefore it is appropriate that changeover also occur in that location. I have already determined that the interim orders sought by the father regarding education will not be made.
The ICL was of the view that it was important for X to spend as much quality time as possible with the father, but she was also conscious that whatever the changeover location it was X who would be in the car.
The risk factors in this matter will not be ameliorated by having the changeover location closer to the father or more rapidly introducing overnight time. Rather those risk factors will be addressed by both parties recognising and working on the issues of concern raised by the single expert and ensuring that their conduct and communications are child focussed. The parties each bring evidence that they are now doing that work for which the court commends them.
I am of the view that the child will be assisted by shortening the day, rather than insisting that all of the father’s time with the child must be exclusive of travel. I therefore propose to make the orders as sought by the mother, noting that she narrowed it down to the C Venue in submissions. I shall leave it with the father to work on making travel time a positive part of the time he spends with the child.
Immunisations
X is not up to date with her vaccinations. The mother proposes that the child’s vaccinations be done based on a catch-up schedule imposed by her doctor. The father wants to see that schedule, have the chance to get his own medical advice and if they can’t agree undertake further consultations.
The mother submitted that she was not “going rogue” so far as vaccinations were concerned. She was simply seeking to undertake a catch-up schedule and that this would be done in conjunction with the standard vaccinations under the care of the child’s GP.[15]
[15] Mother’s affidavit filed 10 July 2025 at [42]
The court agrees with the ICL that given the number of Applications in a Proceeding and Applications for Review filed in these proceedings, any orders that propose the parties reach an agreement may well lead to further conflict. The father agrees in principle that the child should be vaccinated but is concerned about a family history of reactions. I have no medical evidence about that, however it is a simple matter for the parties to advise the child’s GP of that family history so that it can be taken into account by the GP when planning the catch-up schedule. I therefore propose to make the orders as sought by the mother.
Make up time
The court will not make orders that require the parties to negotiate or attempt to negotiate make up time where they clearly have limited ability to agree, noting the number of applications already filed.
Art Therapy
The mother gives evidence of challenges faced by the child – separation anxiety not only at changeovers but at preschool. The father’s evidence is that he has seen no signs of this but the mother submits that as primary care giver she would simply have more exposure. She hopes that this could be addressed through play therapy but would have no objection to family therapy as an alternative.
The father opposes individual therapy for the child given her young age but would support family therapy. The ICL agrees with the father, in circumstances where it would be without the consent of both parties and involving a four-year-old.
The single expert has not made a recommendation for therapy for X at this time. Given X’s young age in circumstances where it is opposed by the father and not one of the single expert’s recommendations, I do not propose to make the order sought by the mother at this time. It may however be something that will benefit X as she gets older if the parental conflict continues.
Both parties advise the court that they are supportive of attending family therapy and the ICL does not oppose it, although expresses some cynicism give the long term and highly litigious conflict between the parties. If the parties are able to agree on a family therapist it would no doubt be of benefit to the child for that to occur, and I encourage them to jointly make those arrangements.
Expedited Trial
This is not a matter where there is any urgency which would allow the final hearing to be leap-frogged over the many matters awaiting trial. It was sensible of the father not to press this order in oral submissions. Most matters in the court system involve parents who want finalisation as soon as possible. To expedite this trial in circumstances where the father has only recently commenced spending unsupervised time with the child twice each week and where there are risk factors alleged in the care of both parents would be premature.
Other Orders
The mother seeks leave to release the single expert report to her own treating therapist. I propose to make orders as sought in the expectation that it will assist her therapist to support her in addressing the concerns raised by the single expert, but limited to that purpose only.
CONCLUSION
The court is satisfied that the orders now made are in the best interests of the child X,
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 4 August 2025
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