Ness & Firmin (No 2) - [2024] FedCFamC2F 191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin (No 2) [2024] FedCFamC2F 191

File number(s): AYC 144 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 15 February 2024

Catchwords: FAMILY LAW – final parenting orders – father have sole parental responsibility – children live with the father – whether the children spend supervised time with mother – risk of psychological and emotional harm to the children by undermining their relationship with other parent – where the mother cant be trusted to not denigrate the father and his family – mother attending final hearing via video link – concern of mothers mental health issues – orders for no time unless agreed in writing with father in changed circumstances

Legislation:
Evidence Act 1995 (Cth) s 140)

Family Law Act 1975 (Cth) s 60CA, s 60CC, s 60G, s 65DAC, s 67Z, s69ZW, s 128

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Bielen & Kozma (2022) FLC 94-12

Fox v Percy (2003) 214 CLR 118

Ness & Firmin [2023] FedCFamC2F 504

Division: Division 2 Family Law

Number of paragraphs: 187

Date of hearing: 14, 15, 16, 17 March, 5 May 2023

Place: Melbourne

Counsel for the Applicant: Mr J. Gates

Solicitor for the Applicant: Myers Family Lawyers

Counsel for the Respondent: Mr S. Howe

Solicitor for the Respondent: MMH Lawyers

Counsel for the Independent Children's Lawyer: Ms S. Taylor

Solicitor for the Independent Children's Lawyer: Joliman Lawyers
ORDERS

AYC 144 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NESS
Applicant

AND:
MS FIRMIN
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

15 FEBRUARY 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be and are discharged.
2.Mr Ness (‘the Father’) have sole parental responsibility for the children X born 2010, Y born 2012 and Z born 2014 (collectively referred to as “the children”).
3.The children live with the Father.
4.The children spend no time, and do not communicate, with Ms Firmin (‘the Mother’), unless agreed in writing (including by test message or email) between the Mother and the Father, and in the event of any dispute as to what was agreed, the last communication from the father shall prevail.
5.That pursuant to Section 68B of the Family Law Act 1975 (Cth) the Mother shall be and is hereby restrained from:
(a)attending at, approaching or being upon the premises of the school or any extracurricular activity attended by the children or any of them;
(b)contacting the Father or the children or any of them by any means whatsoever including through third parties, save as provided for in Order 5 herein;
(c)contacting the children’s school, medical and therapeutic practitioners or sporting clubs / extra-curricular activity organisers by and means whatsoever including through third parties;
(d)approaching the Father or the children or any of them at any time causing or encouraging any person to do so on her behalf;
(e)attending at or being 100 meters of any address at which the Father resided from time to time or works.

6.The Mother be permitted to send the children letters, cards and gifts no more than once per school term and on special occasions (birthday/s, Christmas and Easter) to the children by delivery to the Father and he keep the Mother informed of a manner for the delivery of such letters, cards and gifts.
7.The Father provide the Mother with a written 3 monthly update by email regarding the children’s educational and medical progress, including but not limited to the provisions of any school and/or medical reports prepared in that time and the parties keep each other informed of email addresses suitable for this purpose.
8.Copies of any documents produced on subpoena held by any party be destroyed 29 days from these orders.
9.I discharge the appointment of the Independent Children’s Lawyer.
10.All extant applications are otherwise dismissed.

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

Three children (aged 12, 10 and 7 at the time of final hearing) love their Mother and miss her.
The Applicant, Mr Ness asks the Court to order that the three children of the parties live with him and spend no time with their mother, Ms Firmin. She opposes the orders that Mr Ness seeks and by the conclusion of the hearing sought only that the children spend time with her supervised time with her.
The ICL seeks orders for only limited supervised time conditional on Ms Firmin completing psychological therapy and prolonged clean drug testing.
Ms Firmin’s participation in, and her conduct of, the proceedings has been chaotic. This is a case where some care must be taken to ensure Ms Firmin’s chaotic conduct of the litigation does not overshadow the children’s welfare and best interests and the importance of the children’s relationship with her.
THE DETERMINATIVE ISSUES
Although the litigation commenced as a contest about with which parent the children should live, the determination of the case boils down to whether there is a reasonable prospect of Ms Firmin containing her antipathy to Mr Ness so that the children can enjoy limited supervised time with her without the children experiencing significant distress and/or their emotional security and stability being undermined.
CONCLUSION: LEAST WORST OUTCOME
I have concluded that, at this time, final orders for supervised time are not in the children’s best interests. These are the reasons why even such restricted and limited time for the children who love Ms Firmin is not in their best interests. Orders that do not provide for any time or communication at all are the least worst outcome for them in all the circumstances.
BACKGROUND
The children have endured tumultuous living arrangements in recent times. They currently live with Mr Ness and have not spoken to Ms Firmin since Mr Ness unilaterally stopped the court ordered telephone communication parties in September 2022. The children have not spent time with Ms Firmin since the interim orders to spend significant and substantial time were suspended after Ms Firmin failed to return the children after unsupervised time.
Detailed Background in 2021 reasons
These are the third reasons in this case. The 2021 reasons[1] provide a detailed account of circumstances up to that time. Nothing has transpired since or been given in evidence that requires any qualification or reconsideration of the circumstances then observed on only an interim basis at that hearing. But sadly, events have moved on and the tentative observations and concerns at the time of the 2021 reasons have been demonstrated to be well founded.
[1] Anonymised as Ness & Firmin [2021] FCCA 1669 (‘the 2021 reasons’).
The parties have three children, X aged 12 years, Y aged 10 years and Z aged 7 years, collectively referred to as ‘the children’ hereafter. The parents commenced a relationship whilst they were in high school in or around 2006. They began living together in 2008 and married in 2015. At marriage the children were 5, 3 and 1 year old. The parties separated on a final basis in March 2019 (when the children were aged 8, 7 and 4 years) and are not divorced.
Mr Ness is aged 34 years and resides in the City B area. He is employed as a tradesperson and is in a relationship with Ms P. Mr Ness lives in a three-bedroom home with the children with Mr Ness and the children spending a few nights a week at Ms P’s house with her two children, aged 5 and 3 years. Ms Firmin is aged 34 years and asserts she is unemployed at the moment. She reluctantly gave evidence about her relationship status during the final hearing, and said she was no longer in a relationship, however her evidence on any point, including her relationships, pregnancy and living arrangements whether challenged or not, cannot be assumed to be reliable.
Mr Ness’ application
When Mr Ness commenced this court case, he did not specify the final orders he sought but he sought urgent interim orders that the children live with him and that the children spend alternate weekends with Ms Firmin. From when he filed an amended application in August 2022, Mr Ness sought final orders that the children live with him and spend no time with Ms Firmin and that he have sole parental responsibility for long term decisions concerning the children.
The ICL’s application
At the final hearing, the ICL pressed for final orders whereby Mr Ness had sole responsibility for long term decisions, that the children live with him and that after 12 months and Ms Firmin completing psychological therapy and drug testing Ms Firmin then have 6 occasions each year of supervised time with the children. In final address this was changed to 4 supervised times each year.
Ms Firmin’s substantial change of position application
Ms Firmin filed a response seeking final orders when the case started in May 2021. She then sought that she have sole parental authority, that the children live with her and that the time the children spent with Mr Ness be determined by the court. At the time of the second family report Ms Firmin did not, or could not, tell the report writer what orders she sought. But I infer, from the lack of any indication to the contrary and her persistent criticism of Mr Ness, that at that time and throughout the litigation until the first day of the final hearing, that Ms Firmin continued to want the children to live with her and remained unable to propose what time Mr Ness should have with the children.
On the first day of the final hearing, via her counsel, Ms Firmin sought very different orders. She sought interim orders only and to the effect that the children live with Mr Ness “until family therapy commences between the children and the mother” and that they spend time with her each alternate weekend from after school Friday until before school Monday with electronic communication each Tuesday and Thursday. This substantial change in position showed, for the first time in the litigation some insight on her part into the reality of the children’s lives.
Ms Firmin’s final position
On the last day of the final hearing her counsel submitted:
COUNSEL:The mother is now seeking, in essence, the – in line with the application of the independent children's lawyer, with the exception that she is not seeking a 12 month break before the four times per year start. So she’s looking for the first identity contact, if you like, to happen in three months time.
I take into account that late change in Ms Firmin’s case as showing some insight into the children’s best interests and also suggesting, or being consistent with, a capacity to put the children’s needs ahead of her own.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Reliability & credit of the parties
Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’) is a High Court case concerning the skid marks of a Kombi van on the correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
That is the context to that observation is that in Fox v Percy, the evidence of the rider of the horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with the horse and rider, the issue being upon which side of the road the collision happened. The High Court had to interfere with the first instance decision because by determining, by reason of the apparent reliability of the witnesses, which side of the road the collision occurred, the decision was wrong because the skid marks of the Kombi van incontrovertibly demonstrated that at all material times, the Kombi van had been on its correct side of the road.
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations. However, in this hard and tragic case, some findings are necessary and able to be made.
Parenting
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration. In doing so I am guided by, and apply, Part VII of the Family Law Act 1975 (‘C’lth’) (‘the Act’)[2] including section 60CC the Act. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act including sections 60CA, 60CC and 65DAC, which read as follows:
[2] Relevant parts recited later in these reasons.
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the children as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
…
65DACEffect of parenting order that provides for shared parental responsibility
(1)       This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Relevant legal principals

I do not start from any presumption that the interim 2021 reasons and orders are determinative of the best interests of the children on this final hearing. It is necessary that I look at, “the evidence in its totality without commencing with any presumption”[3].
[3] See Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 at 82,717.
I am guided by the observations of the Full Court of the Family Court of Australia (‘the Full Court’) in the authorities including Bielen & Kozma (2022) FLC 94-12 (‘Bielen’) where the Full Court observed:[4]
30While used on several occasions in the Act, there is no definition of the “welfare” of the child. We are of the view, however, that consideration of matters impacting upon the welfare of the child necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.
[4] And recited and applied by McClelland DCJ at [86] in Grier & Grier (2023) 94-135.
In Bielen the Full Court recited and emphasised settled law as follows:
…
51In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk” (Emphasis added).
52After referring to and applying that decision, the Full Court in Keane & Keane (2021) 62 Fam LR 190 at [84] stated:
In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
(Emphasis added)
53In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”
54Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]:
The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
55Having determined that the children were at an unacceptable risk of harm in remaining in the primary care of the mother, it was incumbent upon the primary judge to consider whether that risk could be mitigated in a manner that was consistent with the objects to Part VII to which we have referred. Relevantly, in this case, that included the possibility of the children spending supervised time with their mother (see Blinko at [83] referring to R & C [1993] FamCA 62).
…
SIGNIFICANT EVENTS AND EVIDENCE
I do not recite all of the significant evidence. I do not recite the abusive and sometimes vile and threatening communications of Ms Firmin to Mr Ness (after separation and during the litigation), his mother and partner that are in evidence, and not denied, but I do take that disinhibited behaviour, and the lack of expressed regret or remorse for how that would have affected the recipient into account.
Serious allegations of family violence
Ms Firmin has alleged that she suffered severe physical violence and sexual violence during the relationship, including in 2014, 2015, 2016 and 2019. Mr Ness denies the allegations. While the allegations and their denial coloured the entire final hearing, ultimately no party pressed for findings about these events and the outcome did not turn on findings about those serious allegations.
Shared care arrangement evolved
Following separation in 2019, Mr Ness alleged that, after a couple of weeks of him not seeing the children, the children commenced to live in a week about arrangement. Ms Firmin alleges or has alleged (to the extent just what she alleges can be ascertained) that the children lived with her, and spent substantial time, mostly, with the Maternal Grandmother, whilst Mr Ness worked in City Q. This dispute does not now turn on what those arrangements were. It is clear enough, and I am satisfied, that both parents were significantly involved with the children after separation by agreement or at least acquiescence between them. For some of this period, the children lived week about albeit that at times Ms Firmin stayed in Mr Ness’ home.
In approximately April 2020, when the COVID pandemic lockdowns began in Australia, the children began living predominantly with Mr Ness upon Ms Firmin starting a business and also caring for her ill mother. The children spent significant, but ad hoc, time with Ms Firmin by agreement. Also at this time Ms Firmin’s sister, Ms R, moved into Ms Firmin’s home. The reason Ms R moved into Ms Firmin’s home is unknown, however, Ms R assisted Ms Firmin care for the children because of her work obligations. Mr Ness’ mother, Ms S, assisted Mr Ness care for the children. There is no evidence of that time sharing being difficult to arrange or implement. The children returned to “at school” schooling in October 2020. The last Victorian covid pandemic lock down ended on 21 October 2021.
The trouble starts, “drugs in the tin” and parental relationship dissipates
Mr Ness asserts that the parents intended to resume the equal shared care arrangement in 2021 with changeovers to occur on Fridays. Because that allegation is unchallenged and is consistent with the pattern of care up to that time, I am satisfied that Mr Ness intended to resume an equal shared care arrangement up until the family fell into serious disharmony when Ms Firmin raised the “drugs in the tin” allegation in late October 2020. Ms Firmin alleged that Y (then 8 years) had taken a photograph of drugs in a tin in Mr Ness’ home. Ms Firmin sent Mr Ness the photograph alleged to have been taken by Y. She further alleged that Mr Ness had pornography on the children’s iPads. Whilst Mr Ness agreed that the tin alleged to contain the drugs was in his home, he denied that it contained any drugs.
The children remained in Mr Ness’ primary care after this controversy was raised by Ms Firmin, but continued to spend irregular time with Ms Firmin. However, the previous co‑operative relationship between the parents had completely broken down.
Mother retains children for the first time
In early December 2020, Ms Firmin requested to spend time with the children and initially Mr Ness refused, then relented, and on about 13 or 14 December 2020, Ms Firmin collected the children to spend time with them as agreed. Ms Firmin, contrary to the parent’s agreement or understanding, then retained the children and did not permit Mr Ness to see them at all. Ms Firmin then made reports to police regarding Mr Ness’ alleged behaviour and made an application for an Intervention Order. Ms Firmin told Mr Ness that he was “not getting the children back” and that they were moving in with the children’s “new Dad” who would look after them. The children spoke occasionally to Mr Ness by telephone but Ms Firmin did not permit any time. In early 2021 Ms Firmin’s then new Family Violence Intervention Order (FVIO) matter was listed at court. But Ms Firmin did not attend court and her application was struck out. But the application and allegations had caused significant trouble and worry for Mr Ness.
The “drugs” justification and demand for a hair follicle test
Ms Firmin’s (then) solicitors wrote to Mr Ness (on 20 January 2021[5]) and made clear Ms Firmin justified Mr Ness not seeing the children because he was “partaking in the consumption of drugs” and until he undertook and provided a hair follicle test Ms Firmin would “not make the children available” to him. Ms Firmin permitted Mr Ness limited time with the children over the weekend of the 23 January 2021 but supervised by his mother, Ms S.
[5] A more detailed recitation of the letter is at [23] of the 2021 reasons.
Father’s first Hair Follicle Test (HFT) provided and no reply
Mr Ness undertook a hair follicle test in January 2021 and provided the results (the test was clear of all illicit substances) to Ms Firmin’s solicitors on 3 February 2021 in a letter that complained of Ms Firmin unilaterally changing the children’s “happy and settled” arrangements on “baseless” allegations. That letter from Mr Ness’ solicitor was followed by another on 4 March 2021. Neither was replied to and on 23 March 2021 Mr Ness issued these proceedings. Mr Ness commenced these proceedings on 23 March 2021 with a first return on 25 May 2021.
It is clear that at this time Ms Firmin effectively dictated the minimal time the children could spend with the Mr Ness. Mr Ness became increasingly concerned, that Ms Firmin was using the force of her very powerful personality and her influence as the children’s much loved mother to damage the children’s relationship with him. Ms Firmin said X began refusing to spend time with Mr Ness and that she “feared” Mr Ness. After a visit between Y and Z in April 2021, Ms Firmin ceased telephone contact between the children and Mr Ness.
In early 2021 Ms Firmin made a further application for another Intervention Order against Mr Ness[6]. Ms Firmin made various allegations including, among others, that Mr Ness was stalking her, that he would take the children and not give them back, that Mr Ness had told her she was an abuser, and alleged that Mr Ness had perpetrated family violence towards her since 2011 including strangulation, throwing items in the home and gave her a black eye. An Interim Intervention Order was made and Mr Ness surrendered his weapons. In mid-2021 Mr Ness consented without admissions to an interim order and the application was adjourned for 6 weeks.
[6] The first had been struck out when Ms Firmin did not attend court in early 2021.
Father’s second HFT clear of illicit substance
That same day, in mid-2021, Mr Ness undertook another hair follicle test which was also clear of illicit substances as was the first (in January 2021).
First interim orders
A few days before the first return Ms Firmin filed an affidavit where at [23] she denied using illicit substances. At the first return of this matter on 25 May 2021 orders were made by consent for, among other orders, the children to spend alternate weekends from Friday to Monday morning with Mr Ness (but in the presence of the paternal grandmother without admitting the necessity for same). Orders were made by the Court for an Independent Children’s Lawyer (‘ICL’) to be appointed, orders for a private short form family report, Ms Firmin to undertake a hair follicle test (covering 6 months) and both parties to undergo CDT and liver testing. Hence at this point the children remained living with Ms Firmin.
Ms Firmin using an illicit drug while alleging same against Mr Ness
On 27 May 2021, two days after being ordered to undertake a hair follicle test (and six days after denying drug use in her affidavit filed 21 May 2021) Ms Firmin filed another affidavit conceding that she had engaged in illicit drug use in early 2021 (the period where she had been relying on allegations of Mr Ness’ drug use to prevent the children spending any time at all with Mr Ness) in circumstances where, she was said, she was working 18 hours a day and, she said, associated with a friend of Mr Ness’.
HIS HONOUR:          Hang on. Hang on. When I ask you a question, start talking, you stop, please. Now, getting back to my question, in your affidavit, you describe [illicit drug] use.
MS FIRMIN:              Yes.
HIS HONOUR:          It wasn’t clear to me the period that you are describing [illicit drug] use. My question to you is – hang on. Hang on. I want to remind you of your right that you can refuse to answer the question on the grounds that it would incriminate you. So with that reminder, I will ask the question again. In your affidavit, when you’re describing your [illicit drug] use, what is the period that you’re describing the [illicit drug] use?
MS FIRMIN:              It would’ve been over December – just wait. When was I working those long hours? Would’ve been about that. And – and January, when I was working the long hours. I can get up the exact dates.
HIS HONOUR:          All right. Was it earlier in 2020?
MS FIRMIN:              No, no, no. None in early 2020.
HIS HONOUR:          So starting in - - -
MS FIRMIN:              If I could afford - - -
HIS HONOUR:          Hang on. Hang on. Hang on. So you’ve said December, okay? So that’s December and January of – December of 2020, January of 2021.
MS FIRMIN:              Yes, and there was one shift where – in February, where I did have [the illicit drug].
Exhibit M2[7], 16 March 2023, being part of the transcript of evidence during the July 2021 interim hearing.
[7] The M prefix to the exhibit designating that the evidence was tendered during Ms Firmin’s (the mother’s) cross examination.
I repeat this was the period when Ms Firmin had been relying on allegations of Mr Ness’ drug use to prevent the children spending any time at all with Mr Ness. The inconsistency, or double standard in her position at that time, did not trouble Ms Firmin and she did not demonstrate any insight into how anyone else, except herself, would view such behaviour.
In June 2021 Mr Ness completed a CDT testing and liver test with such test not returning any concerns.
Ms S’s affidavit for interim hearing
On 4 June 2021 Mr Ness filed an affidavit. That affidavit included:
43.[Ms Firmin] alleges the "first time" I became aggressive and physical with her was in 2011. I say that this is false. I did not strangle her, throw her on the bed, or threaten to withhold [X] from her as she alleges. This is a complete fabrication. [Ms Firmin’s] sister [Ms T] was living with us at the time and has confirmed she witnessed no violence by me, nor did [Ms Firmin] ever allege I was violent to her.
44.I deny that in 2012 I locked [Ms Firmin] out of the house. This did not happen. The day before [Ms Firmin] gave birth to [Y] we had spent the day with [X] at the park together. We had just moved and after going to the park [Ms Firmin] rested while I unpacked. I had taken time off work to prepare for [Y’s] birth. In the days leading up to each birth [Ms Firmin] loved to walk to try and bring on the labour. We often walked together. On no occasion did I lock [Ms Firmin] out of the house.
The allegation in [44] incensed Ms Firmin and it is clear enough she denies the implicit allegation therein [44]. But Ms Firmin reading that affidavit inflamed the already highly conflictual parental relationship and the proceedings. This affidavit was filed, and I infer read by Ms Firmin, shortly before the interviews for the first family report. I am satisfied Ms Firmin found it difficult to cope the fact that those allegations had been made about her. I make no finding about the truth of the allegations nor was I asked to.
Children’s relationships observed in the first family report
On 11 June 2021 the “short form” family report[8] (‘the first family report’) was filed under cover of affidavit. The first family report detailed that Mr Ness presented “as an insightful but rather naïve man” and Ms Firmin presented as “quite ‘scattered’ and inconsistent throughout both of her interviews, often providing contradictory information.” The first family report raised inconsistencies between Ms Firmin’s affidavit material and her interview, including with respect to making reports of family violence to external services like Victoria Police. I take into account that Ms Firmin had only read Ms S’s affidavit a few days earlier. That affidavit was provided to the report writer.
[8] But actually a 29 page, 79 paragraph detailed family report.
The family writer was concerned about Ms Firmin exposing the children to her views and wishes and this issue was made clear to Ms Firmin by that report. Ultimately the first family report recommended that if Ms Firmin returns a positive hair follicle test the children should live primarily with Mr Ness and spend supervised time with Ms Firmin, and for Ms Firmin to undergo psychiatric assessment, but that in the interim the children spend at least seven nights a fortnight with their father.
The independent expert assessment of the children’s relationships as they were at that time, being early June 2021 was significant and crystal clear. The report writer observed:
…
48.[X] was informed at the beginning of her interview that she was not required to make a decision regarding which parent she would live with in the future, and it was emphasised that her parents and other adults would make this decision. Upon hearing this information, [X] appeared to physically relax as she released a large sigh and smiled at the writer.
…
68.When the children were observed in the presence of each of their parents, they appeared to share a positive and warm relationship with each of their parents… [Ms Firmin] successfully verbally engaged the other two children while most of her attention was focused on each child. Overall, the children engaged positively with their mother in this casual environment.
69.Similarly, the children engaged with their father in a positive manner as he focused on the emotional needs of the children. During the children's session with their father, they appeared less interested in the activities he brought for them and more interested in engaging directly with him. The children appeared to compete for his attentions, particularly [Z] and [Y], who sought ongoing physical interactions with him…. It was notable that the children's separation from their father was protracted as all three (3) children experienced difficulties separating from him and repeatedly returned for additional hugs. [X], in particular, climbed up on her father in a 'Koala hug' and snuggled into her father's shoulder while he carried her around the room. As [X] is 11 years old and on the verge of adolescence, this vulnerable and affectionate gesture which is most common in toddlers was significant in highlighting the positive and affectionate relationship [X] shares with her father.
…
79.The writer unsure at this stage whether [Ms Firmin’s] highly inconsistent accounts of events have been due to her abuse of illicit substances, underlying personality difficulties or an intentional attempt to provide misinformation to the Court to support her personal agenda.
The observations of the children’s relationships observed speak for themselves.
On 18 June 2021 the matter returned for an interim defended hearing, intended to be with the benefit of the first family report. The matter was adjourned to 1 July 2021. The orders requiring the presence of the paternal grandmother during the children’s time with Mr Ness was dispensed with.
Ms Firmin’s second intervention order application struck out

During the period of the adjournment, in mid-2021 Ms Firmin failed to attend the second Intervention Order proceedings and the second application was struck out.
On 24 June 2021 Ms Firmin’s lawyer withdrew.
X does not attend time
I refer to and repeat [35-39] of the 2021 reasons as to events straight after the report writer’s observations of the children’s warm and close relationship with both parents recited above:
35.…11 June 2021 was the next time the Father was due to have Court ordered time with the children. We learned yesterday[9] in Court that on that day, the mother was in [City F] working.
36.At the attendance at the McDonalds for the children to be handed over, it is suggested that [X] refused to leave the car and locked the door. It was [Mr E][10] who attended to hand the children over. The two younger children went with the Father. [X] never left the car. It was asserted that she did not wish to come, and [Mr E] drove off with [X] in the car.
37.Whatever [X] had said to [Mr E], that event is very concerning because of the quality of the relationship with her Father that was observed a few days earlier on 7 June 2021 [as recited in the first family report].
38.A similar event causes me to have real concern about the capacity of the Mother's household to promote the children’s relationship with the Father, and that is the event of 25 June 2021. Again, as we learned yesterday[11], a day when the Mother was in [City F] for work and where the children would otherwise have been in the care of [Mr E].
39.That was a day of changeover for the children to spend the weekend with the Father, according to Court orders. Yet the principal of the school contacted the Independent Children’s Lawyer to advise that the two younger children had attended the principal's office that morning to advise that they did not wish to go with the Father.
[9] So 1 July 2021.
[10] Ms Firmin’s then companion or boyfriend but a person she had arranged to care for the children in her absence without consultation or notice to Mr Ness.
[11] That is during the interim hearing on 1 July 2021.
Those events troubled me then, notwithstanding the uncertainty of an interim hearing, and trouble me more so now that the parties have had the opportunity to test evidence and attitudes of the parents in cross examination. I am satisfied of Ms Firmin’s determination to undermine Mr Ness’ relationship with the children. In the circumstances of significant uncertainty in Ms Firmin’s life, Mr Ness’ relationship with the children, and that of his extended family, is a precious oasis of stability in the children’s lives.
Second interim orders: substantial and significant time conditional on drug testing
On 1 & 2 July 2021 the matter proceeded for interim defended hearing. On 2 July 2021, I delivered ex tempore reasons (the 2021 reasons). Ms Firmin gave evidence that she attempted to undergo hair follicle testing pursuant to the interim orders made 25 May 2021 however the service would not accept a photograph of her passport as evidence of her photo identification, hence a test had not been undertaken. Information also emerged from Ms Firmin that the children were being cared for by family members and her then partner, Mr E, during periods where Ms Firmin travelled interstate for work.
The interim hearing had the assistance of the “short form” first family report undertaken by Ms D,[12] parts of which are recited above.
[12] These reasons use the same anonymised pseudonyms for the Mother’s partner, Mr E and the report writer as used in the anonymised 2021 reasons.
I ordered Ms Firmin to bring the children to the ICL’s office that day at 4:30pm and thereafter, the children to live with Mr Ness and spent time with Ms Firmin from 10am until 4pm each Sunday, with telephone contact each Tuesday and Thursday for a 30 minute period. I further ordered if Ms Firmin returned a hair follicle test negative for illicit substances for a period of 30 days, and obtained a liver function test and CDT test, time with the children would then occur from the conclusion of school Thursday until the commencement of school Monday and the following Thursday until Friday morning, that is a 5/9 regime. Further orders were made for the parents to undergo psychiatric assessments with Dr C and the parties to attend appointments for a full family report. I also made an order that if Ms Firmin failed to return the children to Mr Ness, Mr Ness have liberty to restore the matter to the list within 24 hours by contacting the court via email. On 7 July 2021, in Chambers, I made an order listing the matter or Final Hearing to 15 August 2022 with an estimated hearing time of four (4) days.
More trouble after interim orders
Soon after the interim hearing of 1-2 July Ms Firmin made application for another (third) intervention order against Mr Ness. That application was struck out in mid-2021.
On 11 July 2021, the occasion of Ms Firmin’s first face to face time with the children since the interim orders, Ms Firmin took the children to the Police station and complained that Mr Ness had “smacked” Z. However, on this occasion, she returned the children to Mr Ness.
On Ms Firmin’s next two scheduled Sunday times with the children, 17 and 24 July 2021, she failed to attend but later resumed spending time.
Mother fails to return the children on Father’s Day 2021
By 5 September 2021 Ms Firmin had not completed the ordered hair follicle test. Hence her time with the children had not moved to the substantial and significant time contemplated by the 2 July 2021 orders. Hence the applicable orders provided for each Sunday (not overnight) time for the children with Ms Firmin. On the morning of 5 September 2021, being Father’s Day, Ms Firmin again attended the police station with the children to complain of Mr Ness’ care of them. Ms Firmin did not return the children to Mr Ness’ care that afternoon as required by the then applicable interim orders.
On 7 September 2021 Mr Ness filed an Application in a Proceeding seeking an urgent listing, and an order for the children to be returned to Mr Ness’ care. Ms Firmin alleged that Mr Ness had thrown a toothbrush at X and she had safety concerns for the children. A hearing was held the following day and a Senior Judicial Registrar made interim orders for the children to return to Mr Ness’ care by 12.30 that day and Ms Firmin’s time, but not the telephone communication, with the children to be suspended and the matter adjourned to 21 October 2021. Orders for time was never reinstated.
Mother undertakes illicit drugs hair follicle test (HFT): clear
In October 2021 Ms Firmin and her partner Mr E undertook hair follicle testing for illicit drugs. Both tests were clear of illicit drugs.
End of interim applications
On 21 October 2021 the Court received an email from the ICL attaching a signed minute on behalf of all parties seeking to vacate the interim defended hearing, for Ms Firmin to attend a psychiatric assessment with Dr C and with Mr Ness to pay for any amount of the report not covered by Victoria Legal Aid with intention to be repaid in any future property settlement. Further within seven days the parties were to make application to a contact centre to join the waiting list for the purposes of time between the children and Mother.
On 27 October 2021 the Court released a section 69Z response from the Department of Families, Fairness and Housing (‘DFFH’). The response is dated 30 August 2021. The DFFH indicated an intention to investigate and assess the notification it received by way of Ms Firmin filing a Notice of Child Abuse, Family Violence or Risk. The section 69Z response did not raise concern with respect to the children in Mr Ness’ care, but raised some concern about Ms Firmin’s mental health and drug use, and identified that Ms Firmin had failed to complete the hair follicle test for this court[13] and had not engaged with DFFH in relation to making an assessment or safety planning.
[13] By the date of the report Ms Firmin had provided a clean HFT.
On 4 November 2021 a new ICL was appointed. On 30 November 2021 the psychiatric assessments of both parties were filed under cover of affidavit. On 11 January 2022 the Court sent the parties a notice of re-listing the final hearing from 15 August 2022 to 22 August 2022 with an estimated hearing time of four days.
Dr C, Psychiatric examination of both parents as at late 2021
During the final hearing Dr C was not cross examined and the parents did not challenge his observation and opinions. He provided an expert report way back on 30 November 2021.
Mr Ness’ interview was conducted via video conference on 14 September 2021 due to COVID‑19 restrictions. Dr C’s observations included the following:
Mental State Examination ([Mr Ness])
…
16.His affect was within normal limit without evidence of significant depression or anxiety.
17. There was no disorder of form of thought.
18.In terms of thought content, there was no depressive or anxious themes or suicide or self-harm ideation. There did not appear to be any delusions.
19. There was no disturbance of perception or cognition.
…
Past Psychiatric History
…
32.[Mr Ness] denied any previous psychiatric history prior to [late] 2010, when he was woken by police and take to the Emergency Department under the Mental Health Act due to alleged suicidality. His alcohol level was noted to be 0.223 on admission.
33.According to the nursing assessment on admission, he was agitated and denied intent to self-harm...
34. [Mr Ness] was interviewed with his parents and they denied any previous or current psychiatric issues. [Mr Ness] reported being in a stressful period with difficulties with his ex-partner. His mental state examination was described as normal and there was no evidence or mental illness at all. He was discharged home with no follow up required.
…
Opinions and Recommendations
57.In my opinion, [Mr Ness] suffered from an adjustment disorder with anxious mood in the context of not seeing the children which has resolved.
58.He does not require any mental health treatment and there are no impediments from a mental health point of view to his care of the children.
59.In my opinion, the Emergency Department presentation in 2010 was not reflective of a mental illness. This is consistent with the assessment at the time.
60.There is no evidence to confirm the existence of a substance use disorder.
…
Ms Firmin’s interview was conducted via video conference on 9 November 2021. Dr C’s observations included the following:
Background
15.[Ms Firmin] was a well-dressed and appropriately groomed woman who did not display any evidence of agitation
…
21.[Ms Firmin] is a 32-year-old single woman who is living with her ex-partner, who is the mother of [X], aged 11, [Y] aged 9, and [Z], aged 7, who are the subject of the current proceedings and are in [Mr Ness’] care.
…
24.She described physical abuse from her father between the ages of 3 and 15 and she stated that her mother’s undiagnosed mental health conditions caused concern and her mother did not seek help until the year 2000. She said her mother had suffered from post-natal depression and was neglectful and emotionally abusive.
Mental State Examination
…
16. Her affect was distressed with periods of depressed affect.
17. There was no disorder of form of thought
18.In terms of thought content, she worried about the consequences on the children of being out of her car. She denied any depressive themes or suicide or self-harm ideation. There did not appear to be any delusions.
19.There was no new abnormality of perception or cognition.
20.In terms of insight, she acknowledged that she had suffered from anxiety and low mod and was accepting of psychological treatment. She was very concerned at the impact that being distressed and getting emotional during this assessment would have on her situation and she was distressed in relation to the observations made by the Family Consultant.
Substance Use History
28.[Ms Firmin] stated that she has used [an illicit drug] of three occasions in November 2020, in January 2021 and [in] March 2021. She stated she was working 16-hour days and used the [drug] to keep herself awake. She denied any tolerance or withdrawal symptoms. She denied usage since then.
29.Urine Drug Screen […] dated […] August 2021 was negative, Hair follicle tests […] dated […] October 2021 and TDDA dated […] October 2021 were negative.
30.She describe use of alcohol of approximately one glass of wine per dinner at times with a period of two months of increased use prior to Christmas 2020, where she was having six cans of [a mixed drink] every three to four days.
31.She denied any other substance use history.
32.She has not had substance abuse treatment.
33.She acknowledged that her initial affidavit did not report her substance use, and she, stated this was because she was advised to prepare an affidavit denying everything. She acknowledged substance use in a subsequent affidavit.
Past Psychiatric History
…
39.She denied any history of psychosis or mania.
40.She has a referral to a psychiatrist for medication to assist her to calm down. She is not opposed to taking medication.
…
Opinions and Recommendations
54.In my opinion, [Ms Firmin] has suffered from a chronic adjustment disorder with depressed and anxious mood, including symptoms of a post-traumatic symptoms.
55.She has had [drug] use that, in my opinion, does not appear to have met the threshold for a [drug] use disorder and appears from the event testing to be in remission. I do not believe she required any specialist drug and alcohol intervention at this time…
56.It is clear that there has been contradictions in her materials, for example, the initial denial of drug use, and the inconsistencies in relation to police notification, but I am not convinced that this has a bearing on psychiatric diagnosis, and, whilst potentially ill-advised, could be viewed as an attempt to influence the proceedings in her favour.
57. I note that opinion of [the Family Report writer] about [Ms Firmin] presenting ‘scattered’ and note that she did not present that way to me, and I note that there is concern from Court about aspects of chaotic functioning, which in my opinion, should be addressed by her psychiatric supports.
58.It is appropriate that she have ongoing psychological treatment and a review of her medication as previously planned.
59.It is clear that she has a degree of ongoing distress at present, which, in my opinion, is understandable given the loss of custody of her children. Her psychiatric supports can address this, and clearly, any changes in the arrangements in her favour would be beneficial to her mental state.
60.Having carefully considered all of the materials and my assessments of her mental state, notwithstanding the challenges she has had with the Court process including the challenges of self-representation, and the other allegations that have been made that are a matter for the Court to determine, I do not see any major impediments from a psychiatric point of view to her care of the children at this point in time.
I accept Dr C’s observations and expert opinions of Mr Ness. Because of events subsequent to Dr C’s assessment of Ms Firmin and her demeanour during the final hearing, I do not accept that Dr C’s assessment (as emphasised at [60]) of Ms Firmin as at November 2021) remains as an accurate assessment after November 2021. There is no evidence of Ms Firmin having ongoing and/or any psychiatric support save for the hospital admission later on in mid-2022.
Mid-2022: Father charged with assault of Mother from 2019
In mid-2022, and I infer based on allegations made by Ms Firmin, the Police charged Mr Ness with offences against Ms Firmin back in early 2019, with a first return in court in late 2022. Those charges were withdrawn in late 2022.
May 2022: the second family report interviews
On 7 July 2021, I made an order for a second Family Report to be made. Those interviews were conducted on 9 May 2022, 30 May 2022 and on 31 May 2022. That is the interviews were from mid to late May of 2022 and are a snapshot of concerns at that time. Following these interviews, the second family report was prepared on 28 June 2022 and, I infer from the usual practice of private family reports and the absence of any evidence of anything to the contrary, released soon after.
Relevant parts of the second report include the following:
31.[Ms Firmin] claimed the children had been subject to emotional and psychological family violence by [Mr Ness] throughout their relationship and witnessed his abuse of her via emotional, psychological, and physical assaults and threats...
32.In her affidavit material, [Ms Firmin] reported that in 2011, the day before [X] started school, that [Mr Ness] had hit her face, blackening her eye, that he had strangled her and punched her while she was pregnant with [Y], and that he had grabbed her by the face and pushed her instigating the parent separation in May 2019...
…
37.During her interview for the purpose of this assessment, [Ms Firmin] reported that she had recently lodged a statement providing photographic evidence of injuries she had sustained from the physical violence perpetrated by [Mr Ness] with Victoria Police and anticipated that [Mr Ness] would shortly be charged with multiple charges […] suggesting it was likely he may receive a prison sentence[14].
[14] Ms Firmin was successful in having Mr Ness charged. He was charged with offences in mid-2022. The charges were withdrawn in late 2022.
…
45. [Ms Firmin] expressed concerns for the children's mental health due to their experiences of family violence, particularly while in the care of [Mr Ness].
46. [Mr Ness] expressed concerns for [Ms Firmin’s] mental health, claiming that she had struggled with her mental health throughout their relationship as a result of her traumatic family of origin and claims that she and her family have a long history of mental health issues.
47. During his interview for the purpose of this assessment, [Mr Ness] claimed that he was experiencing poor mental health, inclusive of high anxiety as a consequence of [Ms Firmin's] ongoing harassing behaviour towards him, inclusive of contacting him and making false allegations about him on a daily basis.
…
66.It appears that in November 2021, [Ms Firmin] expressed significant concerns for the children's emotional, psychological and physical wellbeing Correspondence between the principal and staff indicated that the children were happy and healthy at school; however, [Ms Firmin] appeared to not believe school’s reports and intended to report their neglect to higher education authorities. The principal was required to have all staff refer and forward all correspondence from [Ms Firmin] to himself by mid-November 2021, as teachers were feeling harassed and stressed by [Ms Firmin's] constant emails and accusations.
…
68.[Ms Firmin] interviewed twice for the purpose of this assessment. [Ms Firmin’s] first interview was over two (2) hours long, which necessitated a further interview to be scheduled... During this assessment, [Ms Firmin] was reluctant to share her parenting proposals with the writer and therefore did not advocate for any particular parenting arrangement.
…
73.Further, [Ms Firmin] suggested that [Mr Ness] has used the legal system against her to perpetuate his family violence towards her, weaponising the Court and community services. She also reported that [Mr Ness] gaslights her by making her doubt her own experiences of the family violence she has endured and continues to experience and that he currently stonewalls her by refusing to share pertinent information regarding the children...
…
81.During her interview, [Ms Firmin] also suggested that she held concerns that [Mr Ness] may have sexually groomed the children and, therefore, they could be a risk of sexual abuse within their father’s care…
…
84.[Mr Ness'] primary concern for the children is their ongoing exposure to their mother's manipulation…
…
88.Throughout his interview, [Mr Ness] spoke with grief that he would like the children to have the opportunity to have a positive relationship with both of their parents. [Mr Ness] reported that the children love their mother and wished to spend time with her; however, he understood that then being excessively exposed to her negative views regarding him is emotionally abusive for them. He understands that the children blame him for separating them from their mother…
89.[Mr Ness] is currently convinced that if the children spent significant unsupervised time with their mother that their relationship with him would be eroded as [Ms Firmin] has embarked on a campaign of denigrating him with multiple agencies and currently uses her limited time of communication with the children to undermine their relationship with him...
…
102.There is a complete absence of appropriate communication and trust between the parents as both parents expressed fear of the other. [Mr Ness] reported that he was currently subject to ongoing stalking and harassing behaviours from [Ms Firmin], which were currently being managed by Victoria Police, while [Ms Firmin] advocated that [Mr Ness] was perpetuating family violence against him by weaponising the legal system against her. At this point, there appears to be no capacity for the parents to be able to coparent the children or make joint decisions in relation to their future care.
…
106…[X] reported that she loved both of her parents and was frustrated that she had been ‘left in the dark’ regarding why she was unable to spend time with her mother. [X] was aware that there were ongoing 'adult issues' and conflicts playing out in the background, to which she was not privy, and she was hopeful that these would be resolved shortly...
107.[X] identified that her father was currently very stressed and that when he was stressed, he tended to yell more at the children as he had a short fuse. She understood that her father was becoming frustrated about adult issues and felt that, at times, he took this out on the children. [X] reported that she loved her father, and she was not angry at his behaviour, but rather she expressed worry and concern for him. [X] believed that upon returning to her father's care full-time, her relationship with her father had significantly improved and that she also enjoyed spending time with her paternal grandmother. [X] indicated that her paternal grandmother had always been a significant figure in her life, and she understood that recently her mother's relationship with her paternal grandmother had changed as she no longer spoke positively about her as she had in the past.
…
110.In discussing her relationship with her mother, [X] reported that she currently communicated with her Tuesdays and Thursday evenings; however, she indicated that this was not enough time with her mother. Overall, [X] emphasised that she loved both parents and was hopeful that her parents could end their conflict to enable her and her siblings to spend significant time with both parents.
…
113.…[Y] indicated that she would like to spend more time with her mother and did not understand why she was not able to spend time with her. [Y] grieved her mother and was confused about the many adult issues which surrounded her involving Courts and Victoria Police…
…
117.[Y] reported that she and her siblings often spend overnight time with their paternal grandparents and go on holidays with them. [Y] explained that her paternal grandmother "was really mean," although she reported that she used to have a close relationship with her. [Y] also stated that her mother also thought that her paternal grandmother was mean, and the writer was unable to distinguish why [Y] felt that her grandmother was now mean and to what extent this belief was influenced by her mother. [Y] also suggested that she was anxious about living with her father as she was scared that "something bad is going to happen." [Y] was also aware that her mother was worried that her father would hurt her or one of her siblings, suggesting, “it is just a matter of time." [Y] was unsure what bad things might occur; however, she confirmed that this was a belief she shared with her mother
…
123.In discussing his parenting arrangements, [Z] suggested that he lived with his father, and his mother called twice a week. He described this parenting arrangement as "good.” When he was asked if there was anything he would like to change about this parenting arrangement, he suggested that his mother call him five (5) times per week rather than twice a week as he believed his mother wanted to talk to him more.
124.[Z] believed that his parents did not like to talk to each other, and he understood that they were fighting. [Z] understood that his mother wanted to see him and his siblings. [Z] suggested that he would not mind seeing his mother as he had not seen her in a very very long time.”
125.… [Z] suggested that he would like more of a structure regarding where he is sleeping so that he knows which house he will be sleeping at each night.
RECOMMENDATIONS
On the basis of this assessment and unless there is additional information presented to the contrary, it is respectfully recommended that;
151. Consideration is given to providing [Mr Ness] with interim sole parental responsibility for [X], [Y] and [Z].
152. In the interim, [Ms Firmin] is prohibited from contacting [U School], the children’s medical and therapeutic practitioners and their sporting clubs and affiliations.
153. [Mr Ness] provides [Ms Firmin] with a quarterly update regarding the children's educational and medical progress, inclusive of any school and medical reports prepared in that time.
154. The children live with their father.
155. Until the Final Hearing, the children spend limited time with their mother, supervised by Children's Contact Service.
…

I accept the observations and the expert opinions of the report writer and I give considerable weight to her recommendations.
Mid 2022: Ms Firmin alleges Mr Ness not Y’s father
It is important to note that there is no reference in the first or second family report to Ms Firmin’s allegation that Mr Ness was not Y’s father. I infer from that that at the time of the second report interviews (mid to late May of 2022) the allegation Y’s parentage had not been raised. Y was then 10 years old. Mr Ness was the only father she had known. By mid‑2022 the interim orders for significant time were still suspended following the 2021 Father’s Day overholding but the court ordered telephone calls were still proceeding.
Ms Firmin then alleged Mr Ness was not Y’s father. Mr Ness became aware of this allegation on 13 and 14 June 2022. That is in the gap between the second report interviews and the release of the report. Mr Ness states within paragraph 204 and 205 of the affidavit filed 10 January 2023 that this is the first time he became aware of these allegations and that these messages were a surprise to him.
204.On 13 and 14 June 2022, I received messages from [Ms Firmin] out of the blue saying:
“This is a courtesy message before it comes forward in proceeding. I suggest you get a paternity test for [Y]”.
“I have made child support and Centrelink aware that a paternity test is required and they have advised this could mean your payments and child support case will cease and you have to apply as a third party carer. I am required to lodge a section 16A and state order. I am confident [Y] is not your daughter and you require a DNA test. I remind you that you were away for 6 weeks at time of conception and we were not together I strongly advise you to get the test. It’s [Y’s] right to know who her father is.”
Mr Ness denies that he is not the father of Y. It is not disputed that Mr Ness is the only father Y has known. Ms Firmin later took this allegation further in October 2022 when she sent abusive and insulting text messages about Y’s parentage to Mr Ness’ mother.
Mid-2022: Mother’s hospital attendance
Ms Firmin was admitted to a Mental Health facility as an inpatient for a period in mid-2022.
It was put by counsel for Mr Ness that Ms Firmin may have fabricated an attendance at a psychiatric facility in mid-2022 to delay the family law proceedings in her favour. Ms Firmin’s records from the facility were exhibited into evidence. Within closing submissions, counsel took me to page 21 of exhibit F6, where Ms Firmin told staff:
Reports he [Mr Ness] manipulates things, tells lies about her activities, feels he is a psychopath.
Orders of 18 August 2022 made by this Court adjourned the trial set for 22 August 2022 due in part, to Ms Firmin attending that mental health facility hospital and being, she said, unable to file her trial material on time.
Counsel for Mr Ness submitted that it was unclear if Ms Firmin’s voluntary hospital admission was genuine, or merely calculating and manipulative.
COUNSEL:So what would have come out in these proceedings is – if you look at the timing of the last hearing when we were listed for trial and it was adjourned, there was a reference there to her going into a facility, and what that turned out to be was [mid] 2022 at the […] Hospital in a psychiatric voluntary admission. Now, of course, [Dr C] says there’s no suicidal ideations or self-harm, but of course, what the subpoena material would have revealed is that’s why she put herself in for that.
In closing submissions, counsel addressed Ms Firmin’s behaviour (Ms Firmin was distressed at times during her evidence) and admission to hospital:
COUNSEL:I've no idea, your Honour, and this – I say that respectfully. I don't know whether [Ms Firmin] is being calculating, is crying when it suits her, is genuinely upset, is finding it – I have no idea, and I say that because the way she presented to that hospital where she talked specifically about her case just before a court case, to me, sounds manipulative, on those facts. That's not me assuming it, it's that conduct sounds manipulative[15].
[15] I understood counsel’s “sounds to me” meant “I submit”.
I am satisfied that Ms Firmin’s hospital admission was of a serious nature and that Ms Firmin was unwell at that time. The situation at the time of actual poor mental health does not exclude that the admission was a calculated and manipulative decision. I am not satisfied that Ms Firmin was well at the time of her admission or that her admission was solely or mostly motivated to derail the then soon approaching final hearing. But the fact of that admission, together with Ms Firmin’s behaviour and demeanour during the litigation and final hearing and her involvement in multiple FVIO applications and (what I am satisfied is) her campaign against Mr Ness, his family and partner, cries out for reliable evidence of her current mental health. There is none.
Joint request to vacate long awaited final hearing
On 16 August 2022 my chambers received an email from the ICL proposing to vacate the final hearing on the basis of non-compliance of filing trial material by the parties and the hospital admission by Ms Firmin. A signed consent minute was provided. On 18 August 2022 I made orders in Chambers vacating the final hearing on 22 August 2023 and adjourning the matter for final hearing on 14 March 2023.
Father stops Mother’s telephone calls to the children
In September 2022 Mr Ness was still concerned that Ms Firmin was attempting to undermine his relationship with the children. Her only contact with the children was by telephone at this stage. Unfortunately, his prior experience, including X not coming on court ordered time as described earlier in these reasons in mid 2021, gave him good reason to be concerned. On 8 September 2022, the children spoke to Ms Firmin on a speaker facility and Mr Ness put his phone on record and went about his business of home duties.
The almost universal unwritten law of family law is that the recording of the children’s conversations usually rebounds against the parent doing the recording. On this occasion the following conversation was recorded[16] between Ms Firmin and Z (then 8 years old):
[16] The Father relied upon the aid memoire that was tendered as Exhibit F1 on 15 March 2023. This is Mr Ness’ accurate enough transcript of a small part of a phone call between Ms Firmin and Z. I am satisfied exhibit F1 is accurate from compared to the recording played in court.
[MS FIRMIN]:           Your dads a [f---ing] asshole and if she[17] didn’t want to go with your nan and [Ms V] she doesn’t have to.
[17] Likely a reference to X or Y.
[Z]:I know.
[MS FIRMIN]:           And its [a special occasion] why should you be separated from your family on [a special occasion]. He’s already taken your mum away from you.
…
[MS FIRMIN]:           do you?
[MS FIRMIN]:           do you love him or do you not like him[?]
[Z]:don’t like him but I do love him a little bit because hes still my dad.
[MS FIRMIN]:           He’s not [Y’s], did you know that
[Z]:   na
[MS FIRMIN]:           yours and [X’s], you’ve got the same mum but not the same dad.
It is common ground that Mr Ness did not facilitate phone calls after this time.
Mr Ness also denies discussing the parentage of Y in front of the child or that it was him that gave Y wind of the allegations. At [209] of his trial affidavit Mr Ness explained his position:
209.In September 2022, I became aware that [Ms Firmin] had spoken to [Y] in a telephone call about the notion that I was not her biological father, and had referred to me in that call as “a [f---ing] arsehole”. I instructed my solicitor to write to [Ms Firmin’s] solicitor by email indicating that in these circumstances, I would not be facilitating any further calls between [Ms Firmin] and the children. No response was received from [Ms Firmin’s] lawyer/[Ms Firmin] to this email. I have not facilitated telephone calls between [Ms Firmin] and the children since this time.
Within Ms Firmin’s oral evidence throughout her cross examination, she asserts that Ms Firmin and Mr Ness had breaks in between their relationship. Within these breaks, Ms Firmin states that she had a sexual relationship with another man.
COUNSEL:Sure. So, prior years, you’re saying you had discussions with the father about the parentage of [Y]; is that what you’re saying?
[MS FIRMIN]:           There was a timeframe we weren’t together.
…
COUNSEL:In one of those breaks, you have said to him that he’s not the father of [Y]; is that what you’re saying?---
[MS FIRMIN]:           No. He – in one of those breaks he knew that - -
COUNSEL:                He knew. Yes?
[MS FIRMIN]:           I had been with someone else, yes
…
COUNSEL:And you have now said to this court that you had a discussion with the father about [Y’s] parentage many years ago?---
[MS FIRMIN]:           About me being intimate with someone else, yes.
Ms Firmin asserts that at the time of conception, Mr Ness was on holiday and therefore Mr Ness cannot be the Father.
COUNSEL:When do you say you knew – your mind – that [Y] was not the biological child of [Mr Ness]?—
[MS FIRMIN]:           I mean, I’ve always had the thought in the back of my head. It wasn’t until I went back and checked the dates and the scans and realised he was [on holiday]
COUNSEL:                Sure?--- - - -
[MS FIRMIN]:           when she was - - -
COUNSEL:                When did you do that?
[MS FIRMIN]:           conceived.
COUNSEL:You have told [Y] that [Mr Ness] is not her biological father, haven’t you?
[MS FIRMIN]:           Yes, she did overhear the court proceedings between [Ms W] and [Mr Ness] and yes, I have spoken to her about that on more than one occasion. And it – it’s accurate. He’s not her biological father.
COUNSEL:When did you - - -?---So - - -When did you first speak to her about that?
[MS FIRMIN]:           When she had overheard [Ms W] and [Mr Ness] having a discussion about it
Ms Firmin’s oral evidence about sex with another man during the relationship that she said resulted in Y’s conception had a taunting and derisory tone to it. The manner and timing of how Ms Firmin raised this allegation and her demeanour in oral evidence at final hearing satisfied me that whether or not Ms Firmin believes the allegation she pursued it with the intention, at least in part, to hurt and embarrass Mr Ness and his family. I am satisfied she raised the allegation in the manner she did for her own emotional needs and satisfaction and was reckless as to the likely impact on Y and/or the other children.
The stress for Z in being asked to tell his mother he does not like his father, as recorded in the conversation above, is self evident. Ms Firmin did not express any regret for these events and what she said to Z. I am satisfied that, if Ms Firmin got the chance, Ms Firmin would again and again be unable from demonstrating her antipathy to Mr Ness to the children and that this would be psychologically harmful to them.
Criminal charges against Father withdrawn
The first return of the then pending criminal charges of offences against Ms Firmin was in late 2022 but those charges were withdrawn the following month. I am satisfied that those charges caused Mr Ness trouble and upset and this was, at least part of, Ms Firmin’s purpose.
The mention hearing on 30 January 2023
On 17 January 2023 Ms Firmin’s lawyer withdrew. On 23 January 2023 I listed the matter for mention (on 30 January 2021) to canvass whether the section 102NA family violence cross‑examination scheme applied. I determined it did, and ordered that the parents be prohibited from personally cross examining each other and that Ms Firmin apply to be legally represented through that scheme. I made a further order for a section 69ZW report from the DFFH, and permitted Ms Firmin to rely on her previous affidavits filed 21 May 2021 and 27 May 2021, as well as file any further material by 27 February 2023.
On 30 January 2023 I brought the matter on for mention in the circumstances where Ms Firmin had been represented previously but was then unrepresented and section 102NA of the Act was likely to be in play. Ms Firmin appeared electronically and in person. Ms Firmin complained of Mr Ness not facilitating the court ordered telephone time and it was conceded he wasn’t facilitating the telephone calls. Ms Firmin sought that the final hearing then listed for 14 March 2023 be vacated or adjourned.
I refused Ms Firmin’s application for an adjournment because I was concerned about the lack of any time or communication between the children and Ms Firmin.
I made an order that prohibited the parents personally cross examining each other and ordered Ms Firmin to apply for the non means tested assistance of the section 102NA cross examination scheme and gave her leave to rely on any affidavit she had previously filed, provided notice of that reliance was given to Mr Ness. Because she was represented by solicitor and counsel at the final hearing, I infer she did make an application for, and was provided, assistance pursuant to that scheme.
I recall it was necessary to mute Ms Firmin from time to time during that hearing because she refused to stop interrupting the other parties’ submissions: she refused the conventional practice of parties taking turns to address the court. Notwithstanding that difficulty it was clear Ms Firmin knew and agreed to the final hearing proceeding in person in Melbourne notwithstanding that the parties lived or had lived in reginal cities.
He following exchange occurred at 10.13am:
HIS HONOUR:          ... The other matter I am going to raise, and I don’t know if it has been raised previously, is whether this hearing should be in person or by videolink. Where are you living [Ms Firmin]?
[MS FIRMIN]:           I’m happy to do it in person.
HIS HONOUR:          Happy in person?
[MS FIRMIN]:           Yep.
HIS HONOUR:          But that would be in Melbourne?
[MS FIRMIN]:           Yep.
HIS HONOUR:          Righto, thank you.
On 14 February 2023 lawyers appointed pursuant to the cross-examination scheme filed a notice of address for service on behalf of Ms Firmin. On 27 February 2023 I released the section 69ZW report. Save for an outline of case, no further evidence was filed by Ms Firmin.
FINAL HEARING
Ms Firmin filed an outline of case on 10 March 2023 that maintained her allegations of Mr Ness neglecting the children and the children being subject to emotional and psychological family violence by him throughout the parent’s relationship.
Notwithstanding what Ms Firmin had told me on 30 January 2023, Ms Firmin then appeared at the final hearing by video link, although she had not sought the court’s leave, and the other parties and the court acquiesced in that fait acompli. Ms Firmin refused to give evidence about where she lived, or intended, to live, or where she was attending electronically from, save that she was in a library and that was in a region of New South Wales.
Evidence at final hearing included that Police at City B sought to locate Ms Firmin and execute an issued warrant for her arrest arising from alleged breach of FVIO’s by Ms Firmin by posting on social media, “[Ms Firmin] is wanted on Warrant. If you any knowledge of where she may be please contact…Police…” Her evidence included she expected to be arrested if she returned to the area where the children live with Mr Ness.
The final hearing commenced on Tuesday, 14 March 2023, proceeded sporadically on 14, 15, 16 and 17 March 2023 and was adjourned part heard to 5 and 8 May 2023. Ms Firmin did not make an appearance on the first day of the final hearing. Despite attempts by her counsel to ascertain her whereabouts, this information was not obtained. In the afternoon I arranged for a Microsoft Teams link to be sent to Ms Firmin so that she could join. She did not do so. I adjourned to the following day to give Ms Firmin the opportunity to participate. Counsel for Mr Ness and for the Independent Children’s Lawyer notified me that in the event Ms Firmin did not attend the following day, they would seek leave to proceed undefended.
On the second day of the final hearing Ms Firmin appeared via Microsoft Teams. Ms Firmin initially refused to provide her whereabouts, even just the state she was in, however subsequently confirmed she was in Town N, that is a long way from where the parties had lived (and Mr Ness and the children still lived). The matter proceeded with Ms Firmin giving evidence via Microsoft Teams.
Toward the end of the third day of the final hearing, 16 March 2023, Ms Firmin disappeared from the Microsoft Teams link and did not return. She, through her counsel, indicated she was having technical issues that extended both to her laptop and her phone. Ultimately, the matter was rolled over to the next day. The following day Ms Firmin made no attempt to appear via Microsoft Teams, instructing her counsel that she was experiencing difficulties due to a new pregnancy and that she would be attending the doctor that evening.
The matter, which had originally been listed for four days, had run a little over two days as a result of Ms Firmin’s absences. I adjourned the matter part-heard to 5 and 8 May 2023 to conclude Ms Firmin’s evidence, for cross-examination of the Family Report Writer and closing submissions. I made orders, among others, requiring both parents to be in attendance on the adjourned date, Ms Firmin to file an affidavit which included medical evidence of her absences on 14 and 17 March 2023, and reserving Mr Ness and Independent Children’s Lawyers costs. My reasons for doing so are in the second reasons in this case being (anonymised) Ness & Firmin [2023] FedCFamC2F 504 (‘the adjournment reasons’).
Ms Firmin failed to file and further court material and failed to appear at the Melbourne registry on 5 May 2023. When the matter came before me, counsel for Ms Firmin indicated Ms Firmin was ready, willing and able to join via Microsoft Teams however she had not been able to travel from New South Wales to Melbourne for the purposes of the hearing due to financial restraints. I reserved my reasons with respect to Ms Firmin appearing via Microsoft Teams, and arranged for a link to be sent. The reason I permitted Ms Firmin to again appear electronically was because it may have been true that she was impoverished and because of the seriousness, for the children, of the applications before me. What was at issue was whether the children would see their mother, who they miss, again. Ms Firmin joined the meeting immediately.
Ms Firmin appeared surprised at the suggestion that she was pregnant or having a complicated pregnancy. She neither confirmed nor denied her current health status. Ms Firmin’s behaviour continued to be irrational, interruptive and dismissive of the court processes and procedures whilst she continued to give evidence. Due to Ms Firmin’s heightened emotional state, she was unable to, or just refused, to answer any further questions by counsel for Mr Ness. Counsel for the Independent Children’s Lawyer made an attempt to cross-examine Ms Firmin, however her endeavours were not fruitful and Ms Firmin appeared to experience what could only have been described as an emotional crisis. I determined that Ms Firmin’s cross-examination would cease. The Family Report Writer was called to give evidence. Closing submissions occurred that same day and I reserved my reasons and orders.
Documents relied upon
Mr Ness relied upon a long and detailed affidavit of evidence in chief, witness affidavits of Ms S (the paternal grandmother) and Ms P, his partner as well as various annexures from his previous affidavit which were tendered during the proceedings. Mr Ness also relied on the two family reports prepared in this matter and psychiatric assessments of both parties. The parties proceeded on the basis that annexures were in evidence and I proceeded on that basis and regard them as having been tendered into evidence and bear the identification as described in the affidavit.

Ms Firmin did not file any trial material. She was permitted to rely on previous affidavits filed 21 May 2021 and 27 May 2021. It is unclear why Ms Firmin did not file further material as she had indicated an intention to do so. Ms Firmin also relied on two family reports prepared in this matter and psychiatric assessments of both parties.
In addition, there were 16 further exhibits (not annexures) tendered during the proceedings which I had regard to when preparing these reasons.
Witnesses
Mr Ness, Ms Firmin and the Family Report writer were cross-examined. Mr Ness was a mostly reliable witness. The report writer was given the luxury of the unfolding events that had occurred between the interviews and the final hearing date prior to being cross examined. The unfolding events only increased her concern for Ms Firmin’s involvement with the children.
Ms Firmin is clearly articulate and intelligent. Ms Firmin was a boisterous and challenging witness. Ms Firmin’s interruptions during the final hearing, both whilst Mr Ness was giving evidence and during her evidence, did little to assist her case. Despite a multitude of reminders and requests to cease her interruptions, Ms Firmin could not contain herself from providing elaborate and emphatic speeches on where she perceived counsel was taking a question, or just information she wanted to put before the court. Ms Firmin’s frustration at her perceived treatment by the Court process found a very loud voice. This occurred throughout the entirety of her cross-examination to such a point that on the last day of the final hearing, Ms Firmin’s inability to compose herself resulted in the conclusion of her cross-examination.
Ms Firmin failed to file any updating court material prior to the commencement of the Final Hearing, although I infer that she had an intention to do so. It is unclear why this was not done given that she was legally represented at least one month prior to the Final Hearing commencing. Further, she failed to file an updating affidavit with respect to her health status during the first four days of the final hearing as ordered by the Court. Such failure resulted in an ability for Ms Firmin to properly put her case before me.
Two of Ms Firmin’s siblings gave evidence on affidavit in Mr Ness’ case and that evidence went to contradicting the allegations of violence by Mr Ness on Ms Firmin and less than ideal care of the children by Ms Firmin. In the end, given how the respective applications moved on, nothing turned on this evidence and I do not place any weight on it.
Ms Firmin’s demeanour in evidence, particularly when describing the Ms P and Ms S, had at times, a strange air of joy. Ms Firmin appeared to find satisfaction and emotional comfort in describing these women as she did, and I am satisfied she did so intending to shock the listeners and upset Mr Ness and cause harm to him by that upset. This was so notwithstanding this was harmful to Ms Firmin’s case and she knew and understood that. I am satisfied she felt compelled to behave so self destructively. This demeanour, in the formality of the courtroom, sadly informs the finding as to whether Ms Firmin can and will, restrain herself during supervised time from, subtly or otherwise, undermining the children’s relationship with their father. I conclude that I am not satisfied she will so restrain herself.
Ms Firmin did not attend court and was cross examined over Microsoft Teams. Ms Firmin was cross examined on Day 2 & 3 of the Trial. She did not attend court on the first or fourth day due to illness. The explanation for her alleged illness is unknown as she did not provide any medical certificate pursuant to Order 4 of Orders 17 March 2023. I am not satisfied that Ms Firmin was prevented from attending Court via video link by any physical illness or pregnancy or difficulty with the pregnancy. I do not rule out that psychiatric illness or crisis, contributed to the issue.
Throughout the Final Hearing, Ms Firmin would not disclose information to the Court in fear of disclosing personal information while Mr Ness was present in Court.
[MS FIRMIN]:           Well, he’s in the room, and you’re forcing me to give my personal information - - -
HIS HONOUR:          No?
[MS FIRMIN]:           that is none of his business.
I infer that this attitude to the provision of everyday information was, at least in part, due to her knowledge that the Police were seeking to execute arrest warrants on her.
67Z Report dated 31 March 2021
Pursuant to the Family Law Act 1975 (Cth), a section 67Z report is made when there has been an allegation of child abuse and for the Department of Family, Fairness and Housing (“the Department”) to now be involved.
An allegation in early 2021 raised historical concerns of the children within their Mother’s care. The report recited concerns of neglect of the children, emotional manipulation of the children as well as concerns over X’s mental health not being addressed.
A Notice of Risk (filed by Mr Ness) was then filed on 23 March 2021, alleging Ms Firmin’s drug use and neglectful parenting of the children before and after school.
The outcome of the 67Z report was that it was then assessed that the Department will take no further action within this case. The report indicated that there were historical concerns however there is no indication of current risk or significant harm to the children.
69ZW Report dated 26 February 2023
I made an order within the Orders of 30 January 2023 that a 69ZW report be prepared by the Department.
The report that was provided to this Court from the Department included concerns and reports raised by both Ms Firmin and Mr Ness beginning from early 2021 through to late 2022.
The report raised concerns of the continual parental conflict and the custody disputes that play a part in the children’s overall well-being. The Department state that the concerns raised within the family is suggestive of an ongoing need for family service involvement.
The Department assessed that this Court is the most appropriate forum to address the issues raised.
Fathers parenting case and presentation
Mr Ness was a largely careful and responsive witness. The witness attended Court in person. Before Mr Ness was cross examined, Counsel made an application for a Section 128 of the Family Law Act 1975 (Cth) certificate about evidence he was going to give and this was granted by the Court. Mr Ness was cross examined on Day 2 of the trial.
Mr Ness alleges that he has a serious concern about the emotional and psychological abuse of Ms Firmin to the children, to him and to his family including his new partner.
It is Mr Ness’ case that he denies committing family violence against Ms Firmin. He claims that Mother’s accusations of Mr Ness are false and these allegations have only been brought forward since the commencement of proceedings and for the purpose of harming him.
Mr Ness states that Ms Firmin is ‘campaigning’ against him and trying to break down the relationship between him and the children.
Not only does Mr Ness allege Ms Firmin is ‘campaigning’ against him, but he alleges that her poor treatment of Ms P is also concerning. Mr Ness’ annexures a concerning number of vile and sexualised messages sent by Ms Firmin speaking of his partner.
Mr Ness ceased phone calls between Ms Firmin and the children due to concerns of emotional and psychological harm to the children.
Mr Ness no longer supports the children having a relationship with Ms Firmin. Mr Ness does not wish for Ms Firmin to spend time with the children, regardless of if it is supervised.
COUNSEL:... He has found this very difficult, but he did what he had to do, and the idea that we can trust the mother to turn up to a supervised visit, control her emotions, regulate herself in such a way that the children don't find it destabilising with their relationship with the father is a real risk, in any – it's not a supervision, as I say, that protects one from a hit, it's a supervision that protects one from demeanour, and all the children have to pick up is, "Mum is really sad", and how does that then go.
I accept that submission.
Although there was ultimately no objection to sole parental responsibility from Ms Firmin or her Counsel, within the closing submissions of Mr Ness, counsel submitted:
COUNSEL:This is somebody, in my submission, who has no credit whatsoever and the idea of her and the father somehow having to deal with each other in relation to the children … would do nothing more than make the father’s life stressful and difficult.
I accept that submission.
The oral and written evidence of Mr Ness is that he is committed to the children and cares deeply for them. His case was that he has adequate housing and facilities to care for the children. Although the current arrangements are not ideal, he has plans for a new home with his partner which is much bigger and will accommodate the children better. His case is that the children are safe with him and his new partner and the relationship between everyone in that household is healthy. I accept that evidence.
Counsel for Mr Ness, in closing submissions, asserted that the evidence that was given by Ms Firmin should not be given weight because of the way she conducted herself within court proceedings.
However whilst not accepting her factual assertions, the nature of the oral evidence of Ms Firmin informs the issue of whether supervised time would be in the interest of the children notwithstanding their love for their mother.
The Mother’s parenting case and presentation
By the end of the case Ms Firmin seeks the orders that are in line with the ICL however to not have the12 month waiting period, merely 3 months instead.
Although Ms Firmin has filed limited material, she filed a Response to Final Orders on 21 May 2021 and until represented by counsel at the start of the case, she sought;
·Ms Firmin have Sole Parental Responsibility;
·Children live with Ms Firmin; and
·Children spend time with Mr Ness as deemed appropriate by the Court.
The main contentions Ms Firmin put forward in her affidavit and oral evidence was, in substance:
·Mr Ness is not the biological parent of Y.
·Mr Ness committed Family Violence against Ms Firmin and the children.
·Mr Ness uses illicit substances.
·The statements (on abuse and insults) about Mr Ness’ partner and his mother were true and hence needed to be said.
Section 60CC factors
I turn now to the application of the law to those facts recited earlier. I must determine what orders to make in this matter on the basis that the best interests of the children are the paramount consideration. I must take into account the primary and additional considerations set out in section 60CC. The parties did not craft their submissions around the provisions of Section 60CC, but appropriately concentrated on the factual disputes and took it as read that the Court would apply the well-known provisions of Section 60CC.
Primary Considerations
I paraphrase the provisions of section 60CC (recited earlier) for convenience but take into account the whole of the provision.
Meaningful relationship with both of the children’s parents
Mr Ness does not agree that there is benefit to a meaningful relationship between each of the children with Ms Firmin. Both of these parents love the children very much. However, Mr Ness seeks sole parental responsibility of these children and the sole care of the children with no time for Ms Firmin. Those are drastic orders.
These children love their mother and grieve her absence. They have a strong emotional attachment to her. Absent the potentially harmful and disruptive effect on the children of a relationship with their mother, there are real benefits to the children of a meaningful relationship with their mother.
The need to protect children from physical or psychological harm
It is Mr Ness’ case that if the children are in Ms Firmin’s care and/or during supervised or unsupervised time, the risk of psychological harm is of great concern. His concern is well founded.
These parents have a highly conflictual relationship and are limited in their ability to communicate about the children. The parents need to protect the children from the conflict between the parents, the intensity of their feelings about the other and the parenting and financial disagreements. I am satisfied Mr Ness is better able to protect the children from his feelings about the parenting dispute and the other parent.
I am satisfied that the children are well cared for in Mr Ness’ care.
I am satisfied that Ms Firmin has undertaken a “campaign” against Mr Ness and his family and partner with the intention to undermine Mr Ness’ relationship with the children. I am not satisfied Ms Firmin will cease this campaign. Undermining Mr Ness’ relationship would undermine the precious stability in their lives. On all of the evidence I am satisfied there is a real risk of psychological harm to the children of Ms Firmin undermining the children’s relationship with Mr Ness and his family, even in supervised time.
Additional Considerations
Any views expressed by the child
There is no doubt that the children love Ms Firmin.
I accept the evidence of the family report at paragraphs 106-125, recited earlier. I accept the family report writer’s opinions of the children’s positions. The children are desperate to see their Mother. I give the children’s expressed views considerable weight. The children want more time than what is ultimately sought by Ms Firmin. The conflict between what they want and their best interests is at the heart of this case. Because of other evidence (including as recited in these reasons) it is clear the children’s views, or what they want, are not in their best interests.
Nature of relationship with each of the child’s parents and other persons
The children have a close and appropriate relationship with Mr Ness. Despite the children not seeing Ms Firmin and having not contact at all since September 2022, I am satisfied the children would have a close relationship and still have a close attachment with their Mother. An aspect of that relationship is Ms Firmin’s antipathy to Mr Ness and her both sharing that with the children and expecting them to incorporate her antipathy into their relationship with Mr Ness. The central question in this case is whether the furtherance of that relationship is in the children’s best interest. There is substance to Mr Ness’ caution that, whether by mental health or personality, Ms Firmin simply can’t be trusted to not undermine the children’s stability if she sees them at all or in a supervised capacity.
Extent to which the child’s parents have taken or failed to take opportunities
I am not satisfied Ms Firmin has taken every opportunity to spend time with the children and be involved with important decisions about them.
Ms Firmin has not filed any material since 27 May 2021, outlining her case and allowing her case to be best heard. Ms Firmin has also not complied with trial directions. Ms Firmin, by withholding the children son after the July 2021 hearing (and before the HFT and next period of time) sabotaged arrangements for herself to spend time with the children. Ms Firmin, by nature of her communication with the children in telephone calls, sabotaged arrangements to communicate with the children.
Extent to which each parent has fulfilled or failed to fulfil obligations to maintain the child
I am satisfied that Mr Ness maintains his obligation to support the children. Because of my uncertainty about Ms Firmin’s mental health, I am not satisfied she currently has the capacity to work and earn an income to assist maintain the children. Hence I place little weight on her failure to assist maintain the children in recent times.
Practical difficulty and expense
I am not satisfied that there is unmanageable expense for either parent in spending time with the children. Because of Ms Firmin’s capacity for, if not determination to, undermine Mr Ness’ relationship with the children, and her “force of nature”, but difficult, personality and her uncertain mental health, there is a real practical difficulty in Ms Firmin’s supervised time with her children. The burden and stress upon supervisors in this case, will be substantial and cannot be underestimated.
Capacity to provide for the child’s emotional and intellectual needs
I am satisfied Mr Ness has adequate capacity to provide for the children’s needs. I am not satisfied of Ms Firmin’s capacity to care for the emotional needs of the children.
Attitude to the child and to the responsibilities of parenthood
The obligation to respect and support the children’s relationship with the other parent, with all the emotional and psychological consequences of harm to the children of an unreasonable failure to do so, is an important factor to consider when making these orders. I am satisfied that the relationship between the parents is conflictual and irreconcilable and take that into account.
I am satisfied that Ms Firmin’s campaign against Mr Ness and her attempts (and partial success) at undermining the children’s relationship with him area serious deficiency in her attitude to the responsibilities of parenthood.
The partial success referred is demonstrated by the deterioration in Mr Ness’ relationship with X between the observations of relationships in the first family report[18] and the events soon after when X did not get out of the car when due to spend time with her father. The attempts include Ms Firmin attempting to persuade Z in the recorded telephone conversation (recited above) to tell her he did not like his father despite the obvious discomfort to Z.
[18] Recited above.
Save for recognising that the consumption of an illicit drug is entirely inconsistent with proper parenting, Ms Firmin has not expressed or demonstrated any regret for her behaviour or campaign of denigration of Mr Ness, his family and his partner, whether in the recorded telephone call or after the first family report and her threatening and abusive text messages to his mother. Rather, when called to give oral evidence, she treated the witness box as a grandstand to continue the denigration. Whether her evidence in the witness box was due to malice or poor mental health or immaturity or all of the above is not possible to determine but none of those conditions can be excluded.
Family violence including section 60G
Ms Firmin’s evidence was that she is a victim of Family Violence since 2010 where Ms Firmin would claim Mr Ness would drink excessively and commit violent attacks. Ms Firmin alleges on at least two (2) separate occasions, Mr Ness has strangled Ms Firmin. Ms Firmin alleges on numerous occasions Mr Ness would punch her, resulting in a black eye.
The history and risk of future family violence is always important. Ms Firmin was highly critical of Mr Ness, giving the appearance of feeling proud of the comments she had made about him and his partner in text messages and on online platforms. Ms Firmin stood by her own berating of Mr Ness. In the end it was not pressed that I make findings about the serious allegations of family violence. In that circumstance, and the chaotic evidence of Ms Firmin that impacted her case, it is not appropriate that I do.
Final or interim orders
Mr Ness sought final orders be made during the final hearing. Ms Firmin initially sought interim orders however ultimately adopted the orders sought from the ICL (but with three months of treatment not twelve). The ICL sought final orders, but conditional ones.
I place significant weight on the Orders that ensure a cease in litigation between the parties. This matter has been on foot for three (3) years and I have no doubt that the proceedings have taken a toll on both parents emotional and mental health.
Counsel for Mr Ness in his closing submission, raised the point of the Court to make final orders to ensure this matter is finalised and I place weight on his submissions.
Parental responsibility

In this case the parents ultimately agree, or do not dispute, that there should be an order for sole parental responsibility to Mr Ness.
Discussion of evidence, submissions and needs of the children
I take into account all of the evidence and the discussion above and synthesize the evidence, the law and the submissions as follows.
Real benefit of children maintaining connection with their mother
I am satisfied that supervised time would maintain a connection between the children and their mother. That connection would be important to them in many ways. It would assist develop their sense of self and mitigate, in a small way, their missing their mother and their longing to see her.
Burden on contact centre workers
I have concern for the behaviour of Ms Firmin in any supervised visits and what she may say/do that may create further issues and distress to them and undermine the stability of their father’s home and care.
I have real concern for the significant burden that this may place on the supervisors at the contact centre and the continual need for supervision to occur for a considerable amount of time. However, I have no reason to doubt that the supervisors at the contact centre are highly skilled in the very difficult job of supervising troubled families and are capable of intervening when necessary.
Likely dynamic of the supervised visits
This matter was raised by counsel for Mr Ness in his closing submissions
COUNSEL:Because this is a case where, amongst other things, the court needs to make orders that are less likely to lead to further proceedings; 60CC(l) (l)… One can imagine one visit where there's a supervised contact centre. All the mother needs to do is turn up, look at the children, break down crying, say, "I never wanted this," something to that effect, and the children have to deal with that. The visit is cancelled. What happens next? Does it come back to court? Does it come back to court with some sort of application? An application in a proceeding that - or no, we start again, because we haven't got an application in a proceeding; there's nothing on foot. So we then say it's a Rice & Asplund point, everybody. Let's go to a registrar and let's go through our process and then go to a senior judicial registrar, who hasn't heard anything about this five days of proceeding, and the father pays privately and has to go through that proceeding. This is the risk that is involved, and the balance to it is him as a primary carer, him as having stability.
…
COUNSEL:It really does present a practical problem and I note your Honour's comments about the ability of a supervised contact centre to be proactive. What I would add to that, however, within every organisation you can have a good solid worker who has got a great background who intervenes, and then you can have an employer who's not quite up to it, and everyone within that organisation is able to be - - -
HIS HONOUR: And if I can interrupt you for the moment. The next issue the consequences for the children of the intervention and the distress because it's unlikely that the children and the mother would go, "Okay. We'll all just go away now. Goodbye". It would be a traumatic and distressing scene.
COUNSEL:And all it takes, in my submission, is a comment like, "Your dad did this", or, "I want to see you. He won't let me". How does a little child get over that? It doesn't take much. This is not a case where someone has to protect someone from being hit with a hammer. It's more subtle. It's just the words said and she has shown by her conduct in the phone call in 2022 what she's prepared to do to the children, and one looks at [Ms D’s] report with [Z] and with [Y]. They were coached pure and simple. [Z] gave a description of mum being locked in the house when he was aged 1 or 2. It's impossible. And there's descriptions there of things that have been said. "Why did you break up in 2020? What happened? Why did you leave?". "Because mum had to get away from the fighting". This is not a child recalling. "And what fighting was that?". "We don't know. Mum received a text from [Ms P]", they say, "And that made her mad". These things are shared with the children and this is the risk. The risk is somebody who can't control herself. You don't get called a narcissistic C by somebody, and everything else under the sun, and then somehow get the respect to be able to treat them as a father figure in the children's lives, respect that relationship and be positive to the children about him, or simply say nothing about him.
The behaviour of Ms Firmin and her campaign against Mr Ness and his family, the disinhibited abuse of them in text message and email and Ms Firmin’s demeanour during her evidence, including her use of the forum of the court to denigrate and insult Mr Ness, his mother and his partner and Ms Firmin obtaining emotional comfort from that, all provide substance to the final submissions of counsel for Mr Ness.
Against that consideration I must weigh what will be perpetual sadness and grief for these children in not being able to see and hear and touch their mother. They will have to deal with an emptiness in their hearts where their relationship with their mother should be. They will observe their peers’ warmth and comfort from contact with their mothers and will observe that over and over again and that will likely cause them sadness and grief on every occasion. They will likely have, at least, some of that grief when they do have supervised time with their mother if that is to happen.
I am not satisfied that supervised time can “ameliorate or mitigate against ….risk such that the child(ren) can maintain a meaningful relationship with the other parent” in this case.
Conditional orders sought
The case of the ICL for final orders for supervised time is that supervised time is to start at the end of 12 months from the end of the trial, hence May of 2024, and is conditional. The ICL orders sought[19] includes:
[19] ICL 1, 14 March 2023.
…
12. Upon the Mother:
(a)Providing a certificate to the Father confirming that she has attended and completed a co-operative parenting program, “It’s about the Kids” and Circle of Security parenting program/s; and
(b)Providing a report from her treating psychologist confirming that the mother has engaged in ongoing treatment for a period of twelve (12) months with respect to her mental health and/or anger management and has complied with all reasonable directions, including taking any prescribed medications; and
(c)Providing to the Father the results four (4) consecutive clean hair follicle tests undertaken by an accredited pathology centre over the period of twelve (12) months, such testing to be undertaking within 24 hours of a request made from the Father, such request not to be more than once each third calendar month; and
(d)Providing to the Father the results of twelve (12) consecutive Liver Function Tests (“LFT”) and Carbohydrate Deficient transferrin (“CDT”) which shows alcohol consumption to be in the ‘normal’ or ‘lower’ range; and
(g) THEN, the mother commence spending time with the children pursuant to Order 4 herein.
…
I am satisfied that implicit in the proposal for “a report from her treating psychologist confirming that the mother has engaged in ongoing treatment for a period of twelve months with respect to her mental health and/or anger management” is that the treatment and engagement would have been satisfactory and sufficiently satisfactory for limited supervised time to then begin.
That Ms Firmin changed her position to align with and seek the ICL’s final orders (but with a 3 month treatment period not the ICL’s 12 month period) shows, in all the circumstances, some insight on her part and an intention to work on and improve her psychological and emotional health. However I have no evidence that Ms Firmin is capable of obtaining such treatment, and then maintaining it, whether for 3 months or 12 months, and benefitting from it all, or to the extent that she would be able to resign herself to supervised time and not undermine by spoken word or demeanour the children’s emotional stability.
No delegation of decision
However, I must determine the best interests of the children, on the evidence, and taking into account all of the evidence and not, in effect, delegate that function to the supervisors at the contact centre or to a treating psychologist. I am not satisfied that there is a reasonable prospect that Ms Firmin can and will, over and over again, conduct the limited supervised sessions in a manner that supports their living with Mr Ness and not undermine the stability of their home and the relationship with their father who will be solely responsible for caring for these children in difficult circumstances, and ones not of his choosing, I cannot be satisfied orders for supervise time will be in the children’s best interests.
There is no good outcome for these children. I must choose the least worst outcome for them.
I cannot delegate to a treating psychologist (assuming Ms Firmin retains one), or to the contact centre management or the supervisors of the contact centre, the responsibility for assessing whether such treatment has been satisfactory and sufficiently satisfactory for limited supervised time to then begin. Were Ms Firmin to have ever satisfactorily undertaken the regime of “treatment” and drug and alcohol testing contemplated by the ICL’s order [12] that would be a very different case, with very different evidence, to the one that I have heard.
I am also satisfied that the necessary and inevitable adversarial aspect of the litigation has exacerbated the conflict and antipathy between the parents and also both parent’s emotional stability. The emotional stability of Mr Ness is essential to the children’s lives. There is a fragility to Mr Ness’ emotional stability in the face of what he realistically experiences as Ms Firmin’s “campaign” against him. These considerations contend for final orders not interim ones. No one now seeks interim orders in any event but, after notice to the parties that I was considering interim orders and considering their responses, if I determined interim orders were in the children’s best interests I would not shrink from making interim orders.
In the end, balancing all of the evidence and submissions, I am satisfied that there is a very real and substantial risk, and an actual likelihood, that limited supervised time, even if considered as recognition or connection time, would undermine the children’s relationship with Mr Ness and the stability their home environment and compromise their short term and long term psychological health, emotional stability and welfare. There is a real need to protect the children from that risk.
No orders for time
I am ultimately persuaded that it is not in the best interests of the children to spend four (4) supervised visits each year with their mother (with or without the conditions pressed by the ICL) at the contact centre nominated by the ICL. Hence the drastic and sad decision I must make is for the no time at all orders as pressed by Mr Ness. Mr Ness did not begin his life separated form Ms Firmin intending.
That the children may never again see their mother, who they love, weighs very heavily on me. I am not satisfied supervised visits would allow the children to maintain a connection with Ms Firmin and limit the risk of psychological harm and distress to them of their relationship with their father, their sole carer. I will make orders largely as sought by Mr Ness. I will not simply order no time but rather that there be no time or communication unless agreed in writing, including by text or email, so that in the event that circumstances have changed by Ms Firmin abandoning her campaign of denigration and undertaking psychological therapy and appropriate drug testing Mr Ness could reconsider whether time with the children’s mother was appropriate.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 15 February 2024

File number(s):	AYC 144 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	15 February 2024
Catchwords:	FAMILY LAW – final parenting orders – father have sole parental responsibility – children live with the father – whether the children spend supervised time with mother – risk of psychological and emotional harm to the children by undermining their relationship with other parent – where the mother cant be trusted to not denigrate the father and his family – mother attending final hearing via video link – concern of mothers mental health issues – orders for no time unless agreed in writing with father in changed circumstances
Legislation:	Evidence Act 1995 (Cth) s 140) Family Law Act 1975 (Cth) s 60CA, s 60CC, s 60G, s 65DAC, s 67Z, s69ZW, s 128
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Bielen & Kozma (2022) FLC 94-12 Fox v Percy (2003) 214 CLR 118 Ness & Firmin [2023] FedCFamC2F 504
Division:	Division 2 Family Law
Number of paragraphs:	187
Date of hearing:	14, 15, 16, 17 March, 5 May 2023
Place:	Melbourne
Counsel for the Applicant:	Mr J. Gates
Solicitor for the Applicant:	Myers Family Lawyers
Counsel for the Respondent:	Mr S. Howe
Solicitor for the Respondent:	MMH Lawyers
Counsel for the Independent Children's Lawyer:	Ms S. Taylor
Solicitor for the Independent Children's Lawyer:	Joliman Lawyers

AYC 144 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NESS Applicant
AND:	MS FIRMIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	15 FEBRUARY 2024