Novacek & Aaltink
[2025] FedCFamC1F 157
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Novacek & Aaltink [2025] FedCFamC1F 157
File number(s): SYC 831 of 2023 Judgment of: CURRAN J Date of judgment: 13 March 2025 Catchwords: FAMILY LAW – PARENTING – Where the child has been living with the father for the past two years – Where the child has spent no overnight time with the mother in that time –Where on the final day of the hearing the father consented to orders for the mother to have sole decision-making authority and for the child to live primarily with the mother – Limited issues remained in dispute – Orders made for gradual increase in time with the mother as recommended by single expert and to spent time with the father Legislation: Family Law Act 1975 (Cth) pt VII, ss 4, 60B, 60CA, 60CC, 64B, 106A
Convention on the Rights of the Child ("CROC")
Cases cited: Eastley & Eastley (2022) FLC 94-094
Isles & Nelissen (2022) FLC 94-092
Division: Division 1 First Instance Number of paragraphs: 212 Date of hearing: 5, 6, 7, 10 & 11 March 2025 Place: Sydney Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: Capelin Law Counsel for the Respondent: Ms Windsor Solicitor for the Respondent: Sheldon Korneluk Solicitors Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Phillip A. Wilkins & Associates ORDERS
SYC 831 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NOVACEK
Applicant
AND: MR AALTINK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
13 MARCH 2025
ON A FINAL BASIS BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders shall be discharged.
2.The mother shall have parental responsibility for the child, X born 2022 (“the child”), and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) effecting the child.
3.In exercising parental responsibility and sole decision-making authority, the mother shall consult with the father prior to making any decisions about major long-term issues by:
(a)Notifying the father with as much notice as is practicable and, if practicable, not less than twenty-eight (28) days in advance of any decision she proposes to make;
(b)Allowing the father to have an input into the decision where the father shall respond in writing to the mother within seven (7) days of receiving a notification from her;
(c)Considering any written response by the father prior to making her decision; and
(d)Informing the father of the decision she has made in writing no later than forty-eight (48) hours after making the decision.
4.The child shall spend time with each parent during the NSW school holiday periods as agreed between the parents in writing and failing agreement as follows:
(a)With the mother for the first half in even numbered years commencing on the last day of the child’s attendance of the school term until 5.00pm on the middle day of the school holiday period and the second half in odd numbered years commencing at 5.00pm on the middle day of the school holiday period until the commencement of school or 9.00am on the first day of the child’s attendance of the school term.
(b)With the father for the first half in odd numbered years commencing on the last day of the child’s attendance of the school term until 5.00pm on the middle day of the school holiday period and the second half in even numbered years commencing at 5.00pm on the middle day of the school holiday period until the commencement of school or 9.00am on the first day of the child’s attendance of the school term.
5.The child shall spend special occasions with each parent as agreed between the parents in writing and failing agreement as follows:
(a)On Mother’s Day, with the mother from 6.00pm on the Saturday immediately preceding Mother’s Day until the commencement of pre-school/daycare/school (or 9.00am if a non-preschool/daycare/school day) on the Monday immediately following Mother’s Day.
(b)On Father’s Day, with the father from 6.00pm on the Saturday immediately preceding Father’s Day until the commencement of pre-school/daycare/school (or 9.00am if a non-pre-school/daycare/school day) on the Monday immediately following Father’s Day.
(c)On Christmas as follows:
(i)With the mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years and from 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years
(ii)With the father from 4.00pm Christmas Eve until 4.00pm Christmas Day in odd numbered years and from 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years.
(d)On the child’s birthday from 10.00am until 3.00pm if a non-pre-school/daycare/school day and from the conclusion of pre-school/daycare/school until 7.00pm if a pre-school/daycare/school day and the child is not otherwise spending time with that parent in accordance with these Orders.
(e)On Easter as follows:
(i)With the father from 10.00am Good Friday until 10.00am Easter Sunday in even numbered years and from 10.00am Easter Sunday until 6.00pm Easter Monday in odd numbered years.
(ii)With the mother from 10.00am Good Friday until 10.00am Easter Sunday in odd numbered years and from 10.00am Easter Sunday until 6.00pm Easter Monday in even numbered years.
6.For the purposes of communication between the parents:
(a)Each parent is to continue using the Our Family Wizard application or such other application as may be agreed between the parents.
(b)In the case of emergency communications and only in circumstances where the Our Family Wizard application is not working, the parents will communicate by text message or telephone in relation to the emergency issue until the Our Family Wizard application is functioning again.
7.Each parent shall keep the other informed of their residential address and contact details and notify the other within forty-eight (48) hours of any change thereto.
8.The parents shall ensure the other is kept informed of:
(a)Any medical problems, illnesses and hospitalisation suffered by the child whilst in their care;
(b)Any medication that has been prescribed for the child; and
(c)Any medical practitioners the child has received treatment from.
9.In the event of a medical emergency involving the child, the parent having the care of the child at that time shall do all things and sign all documents necessary to forthwith:
(a)Inform the other parent as to the emergency and state of health of the child.
(b)Provide to the other parent full particulars in relation to the medical practitioner and facility attended upon by the child within a timeframe that would allow the other parent to attend.
(c)Authorise for the other parent to attend upon the child and receive all information and records that parents of a child would be entitled by the medical practitioner or facility to receive, regardless of which parent presented the child.
10.These Orders are authority for any medical practitioner, dentist, counsellor, or other health professional who treats the child to provide information to the other parent upon request by the other parent, to the extent permitted by law.
11.Each parent is permitted to liaise directly with the child’s pre-school/daycare/school, sporting bodies and/or extracurricular organisation to obtain any necessary information about the child’s progress, and these Orders are authority for pre-school/daycare/school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
12.Each parent to provide their full contact details to the pre-school/daycare/school and be personally responsible for liaising with the pre-school/daycare/school directly and shall be responsible for obtaining their own records.
13.These Orders are authority for the child’s pre-school/daycare/school to provide to both parents with copies of the children’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
14.Each parent shall be at liberty to attend pre-school/daycare/school events for the child, being special events that parents are ordinarily invited to attend, including but not limited to sports days, assemblies, parades and parent teacher interviews.
15.Each parent is restrained by injunction from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence or on social media which may be viewed or accessed by the child and each parent will use their best endeavours to ensure that no other person does so.
16.Each parent shall be restrained from consuming alcohol in excess of the legal limit for driving being 0.05 BAC when the child is in their care and twelve (12) hours prior thereto.
17.Each parent is permitted to remove the child from the Commonwealth of Australia for the purposes of overseas travel provided the following conditions are satisfied:
(a)The travelling parent provide to the non-travelling parent with no less than sixty (60) days’ written notice of the proposed travel, including:
(i)Dates of departure from and return to Australia, of the proposed travel;
(ii)Purpose and destination of the travel
(b)The travelling parent provide to the non-travelling parent, no less than thirty (30) days’ prior to the proposed travel:
(i)Copy of return airline tickets;
(ii)Copy of itinerary provided by travel agent or airline;
(iii)Accommodation details and copies of any bookings for accommodation, including the names, addresses, telephone and email contact details of where and with whom the child will be staying; and
(iv)A copy of the child’s travel insurance policies and certificates, which include as a minimum, hospital and emergency medical cover.
18.Upon the request of either parent and the presentation of a passport application or passport renewal form to the other parent, both parents shall jointly sign and do all acts and things necessary to obtain and renew an Australian passport for the child, X born 2022, including:
(a)Filling out all relevant sections and signing the Passport Application forms;
(b)Paying one half of the ordinary Passport fee in the manner and timeframe required;
(c)Providing all supporting documentation necessary for the Applications; and
(d)Adhering to any time requirements for lodgement and Passport interviews.
19.Subject to Order 20 below, the mother shall retain the child’s passport.
20.In the event the father is to travel overseas with the child pursuant to Order 17 herein, the mother shall release the child's Passport to the father, at least thirty (30) days prior to the date of the father's proposed travel and the father shall return the child's Passport to the mother within forty-eight (48) hours of returning to Australia.
21.Each of the parents shall ensure that the child attends all extracurricular activities, medical appointments and/or therapy appointments that the child is enrolled and/or required to attend in the event that such activity or appointment occurs in the time that the child is in their care.
22.Within seven (7) days of the date of these Orders, the father shall deliver to the mother the following documents relating to the child:
(a)His Blue Book;
(b)All documents relating to his NDIS Plan, including all relevant passwords and log in details to access the NDIS Portal;
(c)All medical and therapeutic reports in relation to the child that have not already been provided to the mother;
(d)All therapy and treatment plans in relation to the child’s Speech Therapy and Occupational Therapy; and
(e)All details in relation to the private health insurance plan with B Insurance, under which the child is covered.
23.In the event that either party fails or refuses to execute any document required by these Orders, then the Registrar of the Federal Circuit and Family Court (Division 1) is authorised and directed, pursuant to s 106A of the Family Law Act1975 (Cth) to execute the said document in lieu of the defaulting party upon application made by the requesting party.
24.The mother is granted leave to provide a copy of these Orders to any educational institution/provider and health provider that the child attends upon.
ON A FINAL BASIS THE COURT FURTHER ORDERS THAT:
Live with
25.The child shall live with the mother as follows:
(a)From 3.00pm on Friday 14 March 2025 until 3.00pm on Saturday 15 March 2025.
(b)From the week commencing Monday 17 March 2025, for a period of four (4) weeks:
(i)From 8.00am on Monday until 6.00pm Wednesday each week; and
(ii)From 8.00am until 6.00pm Saturday each week.
(c)From the week commencing Monday 14 April 2025, for a period of four (4) weeks:
(i)From 8.00am Monday until the commencement of daycare/pre-school or 8.00am Thursday each week; and
(ii)From 8.00am until 6.00pm Saturday each week.
(d)From the week commencing Monday 12 May 2025, for a period of four (4) weeks:
(i)From 8.00am Monday until the commencement of daycare/pre-school or 8.00am Thursday each week;
(ii)In week 1: From the conclusion daycare/pre-school or 3.00pm Friday until 6.00pm Saturday; and
(iii)In week 2: From 8.00am until 6.00pm Saturday.
(e)Thereafter, the child shall live with the mother and spend time with the father as set out in Orders 27 and 28.
26.Until the commencement Order 25(e) the child shall live with the father at all other times other than when living with the mother in accordance with Order 25.
27.Upon the child commencing to live with the mother in accordance with Order 25(e) and until the child commences school, the child shall spend time with the father as follows:
(a)In week 1: From the conclusion of daycare/pre-school or 3.00pm Thursday until the commencement of daycare/pre-school or 8.00am Friday; and
(b)In week 2: From the conclusion of daycare/pre-school or 3.00pm Thursday until 8.00am Monday.
28.Upon the child commencing school, the child shall spend time with the father during NSW school terms as follows:
(a)In week 1: From the conclusion of school or 3.00pm Thursday until the commencement of school or 9.00am Friday; and
(b)In week 2: From the conclusion of school or 3.00pm Thursday until the commencement of school or 9.00am Monday.
(c)These orders are suspended during the NSW school holidays periods.
Childcare attendance during transition period
29.Each parent shall ensure the child continues to attend childcare at C School at Suburb D and the mother shall not cancel that enrolment prior to 9 September 2025.
Changeover
30.Changeover is to occur at pre-school/daycare/school but in the event the child is not at pre-school/daycare/school changeover shall occur at McDonalds Suburb E at the conclusion and commencement of time with each parent.
Communication
31.Each parent shall facilitate the child communicating by audio/visual link by facetime or similar with the other parent at 6.00pm on each Sunday, Tuesday and Thursday in the event that the child has not otherwise been in that parent’s care on that day.
National Disability Insurance Scheme Plan
32.Within fourteen (14) days of the date of these Orders the father is to do all acts and things and sign all documents necessary to authorise the mother to administer and implement the National Disability Insurance Scheme Plan for the child.
Travel
33.The Australian Federal Police are directed to remove the name of the child, X born in 2022, from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Drug Testing
34.That the father be and is hereby restrained from consuming any non-prescription drugs or prescription drugs (save in accordance with legitimate directions of a treating medical practitioner and obtained on a bona fide basis for medical purposes only) during all periods in which the child spends time with him and for a period of twenty-four (24) hours prior to the child spending time with the father.
35.On and from 13 March 2025 until 13 April 2026, the father shall submit himself to hair follicle testing at F Company for the purposes of obtaining a drug test using the Drug Detection Agency’s standard 18-Panel Hair Drug Test within forty-eight (48) hours of any written request made by the mother through her solicitor, with no more than four requests to be made in the relevant period as follows:
(a)Such tests to be at least three months apart in request.
(b)Such tests to cover at least the three month period immediately prior to when such test is undertaken.
(c)The father shall instruct the testing facility to provide the testing results directly to himself and the mother through her solicitor and the father shall forthwith provide to the mother through her solicitor within twenty-four (24) hours of receipt any reports and hereby does irrevocably authorise the mother, through her solicitor, to request (if necessary) supporting documents from the tester directly.
(d)That the father be restrained from the date of this Order from dying or treating his hair in any way that would interfere with the testing to be carried out pursuant to these Orders and from cutting his hair or taking any action to cause his hair which is tested, including his underarm hair, to be of a length shorter than 4cm.
Independent Children’s Lawyer’s costs
36.The father pay one half of the costs of the Independent Children's Lawyer being $8,864.97.
THE COURT NOTES THAT:
A.The mother intends to continue to see her treating psychologist, Mr G, for the remaining seventeen (17) hours of counselling which has been granted by Victim Services.
B.The child spent overnight time with the mother on Saturday 8 March 2025.
C.The child will spend overnight time with the mother from 3.00pm on the day before his birthday until 3.00pm on his birthday.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Novacek & Aaltink has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
The submissions in this matter concluded on Tuesday. Given the child’s young age and the need to commence the arrangements to transition the child to his mother’s primary care without delay I prepared these reasons yesterday. It has been over two years since the interim arrangements for the child to spend no overnight time with his mother were put into place. Any further delay, even of several months for a more comprehensive judgement, would not be in the child’s best interest. My reasons follow.
INTRODUCTION
These are parenting proceedings between the applicant mother, Ms Novacek, and the respondent father, Mr Aaltink. There is one child of the relationship, X (“the child”) who was born in 2022.
The real issue in the proceedings became whether the child should live primarily with his mother or his father. It was agreed that the parent with whom he lived primarily should hold sole decision-making responsibility.
On the final day of the trial just before submissions, the father consented to orders sought both by the mother and by the ICL that the child live with his mother and that she hold sole decision making responsibility for the child.
There can be no doubt, on the evidence, that the orders now made by consent are in the best interests of the child and I make those orders accordingly.
BACKGROUND
The parties were involved in a causal relationship for around four years from 2017. The mother discovered she was pregnant with the child in 2021, at which stage the parties were still in a causal relationship.
The parties commenced cohabitation in late 2021 and separated on a final basis on 27 January 2023 after the father unilaterally vacated the parties’ residence with the child and did not return.
Both parties raised allegations of domestic and family violence against the other during the relationship. The mother also raised concerns about the father’s alcohol and substance usage. The father raised concerned about the mother’s mental health including whether she was making false or exaggerated reports to multiple doctors about perceived risk issues in the father’s care, referred to as her help seeking behaviour.
In late 2022 the mother was diagnosed with a medical condition. She underwent surgery and treatment. She was pregnant and had a termination of the pregnancy due to the need to undergo further treatments. To say that the family had a lot going on is an understatement.
The parties had a tumultuous relationship. On 26 and 27 January 2023 the parties had a number of verbal arguments. The mother allegedly screamed at the father after he was holding the child and hit his head. The tensions continued and the following day after further arguments the father left with the child. He did not return.
The father says he acted protectively to remove the child from ongoing conflict. This might be true – however the father’s conduct thereafter set the tone for the relationship that has existed since that time. He refused to contact the mother; he did not tell her where he or the child were and arranged no face-to-face contact whatsoever between the child and his mother for around a month following his departure.
On 10 February 2023, the mother filed an urgent recovery order for the child to be returned into her care. At this time the mother was undergoing treatment, following her diagnosis in late 2022.
On 22 February 2023, interim orders were made by Senior Judicial Registrar Jenkinson, for the child to live with the father and spend time with the mother on Tuesday and Saturday from 8.00am until 4.30pm and at other times as agreed.
After the orders were made the parties agreed that the mother’s time with the child be extended from 8.00am to 6.00pm on the Tuesday and Saturday, which the mother said accommodated the father’s work hours. No further additional time was ever agreed. The first overnight time the mother has spent with the child since the orders were made over two years ago was Saturday 8 March 2025.
It is agreed that after separation the father worked long hours each day, typically from 6.00am until sometime between 4.00pm and 6.00pm, during which time the child was cared for by either Ms H (“Ms H”) or Ms J (“Ms J”), two nannies from the “K Service”. Since 2024 the child has been cared for by a nanny on Monday and Wednesday, attends daycare at C School on Thursday and Friday, spends daytime with his mother on Tuesday and Saturday and spends Sunday with his father. The child spends each night in the home of the father.
The mother is seeking orders for sole decision-making responsibility for all major long-term decisions for the child, and that each party be responsible for day-to-day decisions. The mother seeks a change of residence, and for the child to live with her and spend time with the father each alternate weekend from 6.00pm Friday until 6.00pm Sunday. The mother is also seeking that the father undergoes drug and alcohol testing and that his time with the child is suspended if the father’s results are more than moderate.
The father initially sought orders for sole parental responsibility for the child, and that the child continue to live with him and spend time with the mother on each Tuesday between 8.00am and 6.00pm and each alternate weekend from Friday 6.00pm until Sunday 6.00pm.
On the final day of the proceedings, after the Independent Children’s Lawyer (“ICL”) presented their final minute of orders sought, which became exhibit 27, the father and mother, to their credit, were able to reach agreement on many issues. The parties agreed that the mother should have sole decision making for all long-term decisions for the care, welfare and development of the child, and agreed to the ancillary orders around the process of the mother notifying the father of such decisions. The parties agreed that the child shall live with the mother. They also reached agreement in respect of school holiday and special occasion time arrangements, communication arrangements, injunctive restraints, information sharing and overseas travel orders.
The parties agreed for a notation to be included in the orders with respect to the mother continuing to engage with her current treating psychologist, Mr G (“Mr G”), for the continuation of her allocated Victim Services Counselling sessions.
The parties remained in dispute with respect to several discrete issues, including the time arrangements for the child and how these were to be implemented, the changeover location, the continuation of current daycare arrangements, whether a drug and alcohol testing is necessary, and the ICL costs.
ISSUES IN DISPUTE
The only issues in dispute between the parties are as follows:
(a)Whether the child should gradually transition to the care of his mother over three months as recommended by the single expert witness, Dr L (“Dr L”), or whether it should be an immediate change;
(b)What time the child should spend with his father on an ongoing basis;
(c)Whether the child should continue childcare at the C School for several months or until the end of 2025;
(d)Whether changeover that does not occur at childcare or school should occur at McDonalds Suburb E or Suburb M;
(e)Whether there should be facetime communication between the child and the parent with whom he does not live and at what frequency and at what time;
(f)Whether the father should be required to undergo drug and alcohol testing and if so for what period; and
(g)Whether the mother should pay one half of the ICL’s costs.
PARENTING ORDERS
Orders in respect of children are informed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child ("CROC").
Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child, those being:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In my consideration of the parenting orders that are in the best interests of the child, in particular in respect of the seven remaining issues, the Court is mandated to take into account the factors in s 60CC(2) of the Act and I have taken those factors into account in making these orders.
Decision making responsibility
The parties, to their credit, reached agreement that the mother should have sole decision-making responsibility for the child.
The parties have had very poor communication since the father removed the child from the home on 27 January 2023. There is no doubt on the evidence, that since that time the parties lack trust and have extremely poor communication.
The evidence supports and I find that the mother has taken active steps to endeavour to improve communication between the parties.
The difficulty of communication between the parties was recognised by the single expert, Dr L in her report dated 20 February 2024, tendered into evidence at exhibit 25. Both parents through their counsel and the ICL recognised that communication between the parties was central to many issues in dispute, with counsel for the ICL submitting that this matter is “characterised by a lack of communication.”
There were three illustrative examples raised during the proceedings that demonstrate the extremely poor co-parenting relationship stemming from communication issues between the parents:
(a)Teddy bear incident at changeover in July 2024 resulting in the father contacting police;
(b)Father’s failure to advise the mother of any medical or therapeutic appointments and daycare arrangements; and
(c)The mother’s communication attempts since January 2023.
Teddy bear incident at changeover in July 2024
The parties both agreed that there was poor communication and high conflict between them at changeover, which the child was often exposed to.
An example of high conflict was the incident which involved the child’s teddy bear at a changeover in July 2024. The father insisted on leaving a teddy bear with the child. The mother said they had the same bear at home and did not want to take the bear. The parties do not usually exchange any items at handover. The father said he started to leave, then returned and placed the bear on the bonnet of the mother’s car. When the bear was not returned that evening the father gave evidence that when he could not settle the child, he went with the child to the police station to report the mother’s failure to return the bear.
The events were entirely avoidable. The father insisted on leaving the bear when the mother had said she did not wish him to. The mother gave no evidence as to what she did with the bear, if anything. However, it was obviously within her power to retrieve the bear and return it to the father that afternoon, which she did not do. The fact that the child was taken to a police station to report the matter is an extraordinary response to such an issue, showing a lack of insight as to the impact of taking the child to the police station. Both parents are intelligent, articulate people who love the child. They could and should have acted better.
Failure to advise the mother of any medical and therapeutic appointments and daycare arrangements
The father has consistently failed to advise the mother of any medical appointments or their outcomes and has failed to provide the mother details or authorise the release of information to the mother about the child’s medical practitioners, therapeutic providers, and childcare provider. There were an extraordinary number of examples of the father’s failures in this regard. The father’s actions were in breach of orders made on 22 February 2023 by SJR Jenkinson, tendered into evidence and marked as exhibit 13. These orders provided that:
8.The parties provide a copy of these Orders to any day care, out of school care, recreational organisation or school which [the child] from time-to-time attends and each party is to:
a.List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving [the child] anytime a situation arises requiring an emergency contact, together with an alternative contact in the event that neither parent is able to be reached on such occasion;
b.Authorise such day care, out of school care, recreational organisation or school to communicate with each party on matters relating to [the child’s] welfare and education, including school events;
c.Authorise such day care, out of school care, recreational organisation or school to provide notices, newsletters and reports directly to each party; and
d.Authorise such out of school care, recreational organisation or school to contact each party in the event of an emergency.
9.In the event that [the child] suffers any injury, illness or requires any medical attention while in the care of a party, that party shall notify the other as soon as practicable of said injury, illness or medical treatment, but no later than one (1) hour, of the said injury, illness or medical treatment.
The following are just several examples of the father’s failure to communicate such information:
(a)The father had two paediatric appointments with the child’s paediatrician in December 2023. The father and nanny attended the first appointment on Friday 8 December 2023 and the father had a subsequent telehealth appointment on Friday 29 December 2023. Despite attending these appointments, he did not inform the mother of any of the issues discussed despite seeing her twice for handover the day following each appointment. The paediatrician prepared a report following these appointments, tendered into evidence at exhibit 12. It is undisputed that the mother only became aware of the existence of this report when it was annexed to the father’s trial affidavit filed on 9 February 2025. What is even more disturbing about this appointment is that the father was interviewed by the single expert in January 2024 only weeks after this appointment, during which time he failed to disclose to the single expert that the paediatrician had identified the child as possibly having autism spectrum disorder (“ASD”) traits, a concern that the mother had previously raised with the father. The mother was subsequently criticised by the single expert for seeking “further assessments or medical opinions about possible ASD traits when at this juncture it does not seem warranted.” One of the recommendations in the paediatrician’s report was to consider whether the child fulfils the criteria for a diagnosis of ASD or requires further formal testing to investigate.
(b)The father’s failure to inform the mother of speech therapy or of the “homework.” The mother was spending time with the child two full days each week and there was no communication directly to her or through reports or copies of notes from the nannies’ communication book about the child’s progress at speech therapy and the focus for developing his speech each week.
(c)The father failed to inform the mother of the child’s attendance at occupational therapy or of the physical exercises that were provided at any time since this commenced.
(d)The father failed to advise the mother of the decision to enrol the child in daycare. He agreed he did not include the mother on the enrolment or include her as an emergency contact, instead one of the child’s nannies was included as the emergency contact. The father was in direct breach of an order to list the other parent as the primary emergency contact, as noted above. He had no explanation for his decision to breach this order and exclude the mother from the opportunity to be involved with childcare. The father was not in attendance at the child’s first day at daycare, but the mother was not advised. Instead, Ms H, one of the child’s nannies, took the child. The child was deprived of the benefit of having either of his parents share in this moment with him. The mother was not advised of any special days or activities at daycare such as easter, Christmas or Mother’s Day.
(e)The father sought NDIS assistance for the child. He agreed he did not include the mother’s details and said it was because he “was not asked to.” The mother was required to prove her connection to the child to obtain information about the NDIS support the child was getting.
The father’s conduct in failing to inform the mother had the effect of marginalising the mother from the child’s life by refusing to inform her of childcare and ongoing medical interventions notwithstanding the mother spent two full days with the child each week. Despite the orders made on 22 February 2023, the father has simply chosen to entirely exclude the mother from these matters and wilfully breach the obligations created by the orders made. This does not reflect well on him or his attitude to the mother as a significant person to the child.
The mother’s communication attempts
The mother has endeavoured to improve communication between the parties. Despite the orders made for daytime only the mother has embraced a number of the recommendations in respect of improving communication.
Both parties gave evidence that their communication attempts at changeovers were not successful, whereby the mother stated the father would attempt to undermine her time with the child by shouting at her whilst she was leaving with or returning the child, and the father stated that the mother would not engage with him at all during changeovers.
The mother also contended that the text communications between the parties would escalate rapidly and stated that the father’s texts towards her were “aggressive”, “repetitive” and “finger pointing” so, as an alternate means of communication, the mother attempted to introduce a communication book between the parties. Exhibit 14 is a text exchange between the mother and the father from June 2024 discussing their poor communication and the introduction of the communication book.
In Dr L’s report, it is noted at [42] that in a meeting on 16 March 2023, the N Family Services workers had expressed their concerns about the lack of appropriate information sharing between the parties, with respect to the child’s needs, and suggested that the parties use a communication book that would travel with the child.
The father replied by text to the mother, confirming that he would use the communication book. He did not do this, notwithstanding that the father uses a communication book with the two nannies who look after the child while he is at work. The communication book that the father maintains in his household included details of what the child has eaten, bowel movements, reports of nappy rash and records of his OT and speech therapy. The father has the capacity to communicate through such a means with paid carers but inexplicably, despite advising that he would do this with the mother, simply chose not to. He could not explain why.
Dr L stated that the current concerns about the child’s wellbeing “relates to the parents’ complete lack of ability to communicate in any constructive way about his needs.” She recommended that the parents restrict their communication to a co-parenting app such as “Our Family Wizard” or “2Homes.”
From 1 June 2024, the mother has been subscribed to Our Family Wizard and has sent communications regarding the child through the app. The mother’s lawyers sent a letter to the father on 20 June 2024 requesting that future communication occur through the app.
Exhibit 8 shows the mother using the app to regularly communicate with the father, where she reported to the father matters relevant to child’s care and made inquiries to the father relating to the child.
The father indicating his agreement to using the app on 28 June 2024, through a letter from his solicitor which was marked as exhibit 15. However, despite this the father has not responded to any of the mother’s queries on the app. Extraordinarily, despite having agreed to using the app to improve and assist with communication the father did not ever use it. He did not even download it. He did not see any of the messages sent by the mother. He had not downloaded it at the time he was being cross examined. He said in evidence that he would now use the app for communication. He could not offer any explanation as to why he said he would communicate through the app and simply did not do so.
Orders for decision making
Although the communication between the parties is extremely poor and often hostile, the mother has demonstrated her willingness to engage in appropriate communication with the father and adapt to facilitating communication through multiple mediums. To date the father has not.
The ongoing and incredibly poor communication and mistrust is one reason why the consent orders sought by the parties, for the mother to have sole decision-making authority, are appropriate in such circumstances. I am satisfied that the orders made are in the best interests of the child.
The very poor relationship between the parties is also relevant to my consideration and determination of a number of the issues in dispute as set out below.
Whether the child should gradually transition to the care of his mother over two or three months as recommended by Dr L or whether it should be an immediate change
The mother contended that an immediate change rather than a graduated transition over two to three months as recommended by Dr L was the order that should be made in the child’s best interests.
The father and ICL contended that a more graduated regime over three months as set out in the ICL’s minute was in the child’s best interests.
Senior counsel for the mother contented that one single significant change that would be brought about by adopting the mother’s orders sought would be less disruptive to the child and therefore in his best interests. Senior counsel relied upon what was set out in the paediatric reports prepared by Dr O (“Dr O”) from December 2023 and December 2024.
Exhibit 12 is the Paediatric Report prepared by Dr O (following consultations on 8 December 2023 and 29 December 2023). In this report Dr O stated that the child exhibited features such as sensory sensitivity, motor stereotypes, dislike of change, which raise the risk of ASD. The reference to the child exhibiting features such as dislike of change was highlighted in support of the mother’s position of an immediate change rather than multiple incremental changes which was contended may be more difficult for the child to adjust to.
A further report was prepared by Dr O around 12 months later on 6 December 2024. The report noted that the child had started attending daycare twice a week and was socialising well. It goes onto state that “initially, he had trouble settling in and could become overwhelmed. He now actively participates and enjoys activities like sandpit play.” Dr O indicated that the child had shown significant improvement, however, still exhibited features of neurodiversity.
It was contended, in support of the mother’s orders sought, that the child has ultimately adjusted well to the big change of attending daycare two days per week and that he will similarly adjust to the change of living primarily with his mother.
The father in his evidence said that the child adjusted perfectly well without issue to the arrangements of living only with the father when the father left with the child in early 2023. At that time the child was not yet one year of age. The evidence of the father that the child adjusted well to such a big change is also supportive of the proposed immediate change being something that the child will cope with and adjust to.
The mother’s own evidence was that the child doesn’t cope well with change, whereby she stated that if it was a “slight change, and then another slight change I think that would be more difficult for him than an immediate change.”
The only evidence from a psychologist that was available to the Court was the opinion expressed by Dr L in cross examination.
Dr L, in evidence was firm in her view that if there was a change in primary care (at that time it was not a consent position) that it should be gradual and over three months, or slightly less. She maintained that there should not be an immediate transition. Her evidence was that a child of this age, being over two years old, needs time to adjust to such a change.
The single expert was firm in her opinion that the child should remain in the primary care of the father; however, eventually gave her opinion as to the best transition if that were not the ultimate outcome of the proceedings.
Dr L said that as the child is settled in his daycare she would like to see that continue so there is continuity of care and because the childcare workers have gotten to know him it also provides a safety net. She recommended “a gradual increase with a few more weeks of one night and then maybe build up to two nights and so forth” over a period of three months. She maintained that it should be slow and steady “giving the child time to adjust.”
Dr L also recommended the parties avoid face-to-face handovers given the history of conflict. There is no doubt that this opinion is supported on the evidence.
The best interests of the child dictate that the transition back to the primary care of the mother should occur in the context of providing the child as much stability as is possible and reducing his exposure to changes that may upset or overwhelm him.
The evidence is that the child had not spent any overnight time with his mother in two years. Not once in the two years since the child was removed by his father did the father offer an overnight time with the mother, even after the mother made requests for this to occur. This is regrettable and reflects frankly very poorly on the father, particularly after he had the benefit of the mother’s treating psychologist’s opinion as to the mother’s mental health. As regrettable as this is the child is not yet three and has global developmental delay and neurodiverse traits. His transition to the primary care of the mother must be undertaken with consideration as to what is in his best interests and how he will cope.
For the reasons set out above, including the last two years of routine, his young age and his special needs, I give weight to the opinion of Dr L that a gradual change is warranted.
A second aspect to the mother’s orders sought was the significant reduction in the time that the child will spends with his father, despite his young age, of one block of two nights in a two week period.
The single expert opined that the impact on the child of changing from seeing his father daily to having periods of not seeing his father for 11 days in a row on the mother’s application would be detrimental to the child.
The single expert also opined that the child should spend time every week with his father rather than block time in the alternate week as she said “two weeks is a very long time in a two year olds life.” I accept this opinion and agree that the child should not go long periods without seeing either parent. He has seen his mother two days each week although no overnights over the past two years. An ongoing level of contact with each parent is supported given his young age and the significant overnight time he has spent with his father, since the interim orders were made.
The single expert put weight on the child maintaining regular time with his paid carers as important and something that should continue. Without in anyway dismissing the role the nannies have played in providing paid care to the child, noting he now spends one day with Ms H and one day with Ms J, I accept the submission that absent any risk factors, there is a benefit to the child being cared for by a parent where the opportunity presents itself rather than a paid carer. In this case the mother is presently available to provide care for the child. This is a relevant factor.
It is also the case that the nannies have been involved in taking the child to and from childcare and that these arrangements may continue thereby allowing the child to continue contact with the nannies if the father so decides.
In considering the evidence, I am not satisfied that one big change as sought by the mother is in the child’s best interests. I also accept Dr L’s opinion that for the child to have a period of 11 days without seeing his father is not in his best interest. He is very young being almost three years of age and over the past two years has been regularly cared for by each of his parents and other carers during each week.
I am mindful of the report of the paediatrician that the child initially had some trouble settling into childcare at the beginning of 2024 and this was a significant change for him. I accept the opinion of Dr L that a child of this age should be given time to adjust. I agree that for the child to have multiple changes over multiple weeks may be, as identified by the mother, unsettling. The orders have endeavoured to ensure consistency in the days the child spends with each parent, increase the time gradually, with similar numbers, but reducing face-to-face handovers. The transition period will occur over the three periods of four weeks with slight adjustments after each month maximising the times the child will be in the care of the mother on days he is not attending child care.
I accept that 11 days of not spending time with his father is not in the best interests of such a young child. I note in fact that the mother’s alternate position (if the child were to remain living with his father) was that she sought to spend an extended weekend in one week and one night in the off week. She considered this was best for the child if not living with her. This is a very similar proposal as the orders now sought by the ICL and the father.
What is of utmost importance is that the transition back to the primary care of the mother, as consented to by the parties, is undertaken in a way that best supports the child adapting to the change.
I also am mindful that the child has recently transitioned to childcare and the evidence of both parties is that they intend for him to continue to spend time at childcare including on a Monday. If this were to occur it will minimise personal handovers and potential conflict.
The child is very familiar with his home at his mother’s house where he has spent every Tuesday and Saturday in accordance with the orders for the last two years. At his mother’s home he has been cared for from 8.00am until 6.00pm. He had daytime naps and is cared for by his mum with whom he has, undoubtedly, a close and loving relationship. His familiar home with his decorated bedroom provides a further element of familiar routine which will likely assist him to settle into the new arrangements with the further assistance of the adjustment period.
In the circumstances the order that best transitions the child to the primary care of the mother, as sought by consent, has fewer changes than the orders sought by the father and ICL, to limit the potential unsettling of him while maintaining regular time with his father. The orders I make enable a transition over the recommended three months so that the child can adapt.
The orders I make attempt to achieve this outcome, provide a balance between the identified competing considerations of limiting unnecessary change while providing a slow and steady opportunity for the child to adapt. They will also limit face-to-face handovers as much as possible. The transition will continue over a three-month period to enable the child a sufficient period to adapt to again primarily living with his mum.
Accordingly, until the child commences school he will live with his mother and spend time with his father as ordered.
What time the child should spend with his father on an ongoing basis
Upon the child commencing school he will continue to spend Thursday overnight return to school Friday in week one and in week two from Thursday after school until Monday before school with his father during school term.
The benefit of the regular time each week with the father enables his father to be involved in the child’s regular school routine of collecting him every Thursday from school and taking him to school each Friday thereby engaging in the usual school activities, meeting his teachers and continuing to be involved, while also being engaged in weekend activities and spending the usual weekend routine each alternate weekend.
There can be no doubt that the child has a close and loving relationship with both of his parents. He was observed by the single expert as having a close bond with each parent. He has the benefit of being a little boy who has two dedicated and loving parents who each want what is best for him.
In her report, Dr L observed that the father was patient in his interactions with the child and at [28] opined that the child “appears to have a well-established relationship with his father” and that “he appeared to be genuinely loving and attentive to him.”
The observations made by Dr O in exhibit 19, observed that the child engaged well with the father and appeared content.
Both of the child’s nannies observed positive interactions of the father and the child, with one noting that the child smiles and is excited when the father arrives home.
The mother seeks the father spend time only from Friday afternoon until Sunday each alternate weekend. This is a drastic reduction in the time the child would be spending with a significant adult in his life. There was no evidence supporting that such a significant change is in the child’s best interest.
In support of the orders sought it was contended that the child was largely cared for by nannies and daycare workers and that care from his mother was preferable, which I accept. However, to reduce the time so significantly completely disregard the benefit the child receives from the evening, bedtime and morning routines that he has with his dad. The evidence of the father and Ms H is at times the father is home by 4.00pm and that he often takes the child to the park before they have dinner and engage in his bathtime and bedtime routine including reading stories. The Sunday routine included spending time with other friends with children and regular activities. These times and this bond remains an important feature of the child’s relationship with his father. It is the quality of the relationship that is significant.
Maintaining the application for such a drastic reduction in the regularity of time shows, in some respects, a lack of insight on behalf of the mother as to the important role the father will continue to play in the child’s life although it will, by necessity, involve less time in the father’s household.
Despite the father’s long working hours and the practicality of the orders sought, the father, through his counsel, submitted that that he would make arrangements where possible to collect the child from daycare. There is no criticism of a working parent in seeking assistance with managing care arrangements.
For the above reasons and the with regard to the benefit to the child of having regular and meaningful time with his father while in the primary care of the mother, I find that it is in the child’s best interests to spend time each alternate weekend from after childcare on a Thursday and return to the mother or childcare on the Monday and in the other week overnight from after childcare Thursday return to childcare the following day. This arrangement should continue once the child commences school.
The parties agree that the child should spend half of the school holidays with each parent once he commences school. This is an appropriate order.
Whether the child should be required to continue at childcare at C School until the end of 2025
While the child transitions to the primary care of his mother the single expert opined that he would benefit from the routine and stability of remaining at C School where he attends two days per week. The mother seeks an order that he remain there during any transition period and for three months thereafter. For the reason that follow I agree that this proposal is in the child’s best interests.
The mother by consent holds sole decision-making authority. She may decide after the six months to enable stability during the transition, to change his childcare arrangements. Equally she may decide that there is no benefit to the child in making such a change. I agree that the concern of the possibility of their being a difficulty at childcare is not a basis to order a change of childcare and would be no more than speculative.
It may be that the child is well settled and no change to the childcare will ultimately occur.
However, the parties have confidence that the mother will make appropriate parenting decisions moving forward. They have sought an order for her to hold sole decision making for that reason.
The mother impressed as very focussed on what is in on the child’s best interests. She has on the evidence, for the most part, conducted herself with a focus on the child and has been able to mostly retain that focus. Examples are in the way she attempted to improve communication by implementing the communication book, seeking ongoing support and therapy aimed at improving her coping and regulation, improving communication and developing strategies to co-parent. In her oral evidence, which I accept, she gave evidence of her commitment to co‑parenting and to having the child’s best interests at the forefront of her decisions. I have no doubt the mother will make decisions with her primary focus being the child’s best interests.
I am confident she will comply with the Court orders and, if she wishes to change the preschool will consult the father and consider his views before making a decision that is in the child’s best interests, in accordance with the orders made.
Any restraint on a change to childcare is primarily to assist the child with stability during the period where his day-to-day arrangements will, by necessity, be changing as a consequence of the consent orders now made. The period of stability and transition is for three months as recommended by the single expert. The single expert, however, was not asked to express a view as to the timeframe for that familiar childcare routine to be retained.
The transition orders adopt the slow and steady approach recommended by the single expert in respect of ensuring the child adjusts as well as he can to the new arrangements. For there to be a further period of three months as proposed by the mother of maintaining his stability at the same childcare centre until September 2025 is an order which is, in my view, in the child’s best interest. This is because the initial adjustment period recommended was three months for a child of his age. It is also because, as I say above, the mother holds by consent sole decision-making authority and I accept she will exercise it in the child’s best interests. If there is a change then made, the child will have been living in the new arrangements for over six months.
There is no need for any restraint to extend beyond that point. That does not mean there will be a change, just that the mother is able to consider the arrangements that are best for the child at that time in exercising sole decision-making authority.
Whether changeover that does not occur at childcare or school should occur at McDonalds Suburb E or McDonalds Suburb M
The father sought a change to the changeover location from McDonalds Suburb E to McDonalds Suburb M. The parties’ interactions at changeover has been poor and highly conflictual with each alleging the other behaves in a way that is of concern. Each party, at times, video records the other.
Wherever possible the parties should avoid coming into direct contact as whoever may be at fault, they have been unable to improve their co-parenting as illustrated by the events around the child’s bear referred to above. The poor behaviour occurs regularly in the presence of the child.
All changeovers, as far as possible, are to occur at childcare or school to avoid the tension and conflict and to avoid the child being exposed to ongoing poor behaviour.
However, there will be a need for changeover from time to time to occur directly between the parties including during the transition period. The Suburb E location has been where changeover has been occurring. There was no evidence to support the father’s proposed change to Suburb M as being a more convenient location or that it was in the child’s interest for such a change to occur. It was not suggested to the mother when she gave her evidence that a change was necessary or why. There was no evidence at all about the proposed change.
There is no basis upon which I am satisfied that such a change is in the best interests of the child. I order that changeovers continue to occur at Suburb E McDonalds, a location where changeover has been occurring for the last two years. The child is familiar with the location and it is a location that is reasonably proximate to both parties residences.
Whether there should be facetime communication between the child and each parent and at what frequency and what time
The mother is seeking orders that the child have facetime or telephone communication with the child each Wednesday at 6.00pm and that each parent shall permit, not prevent or interfere with the child making and/or receiving facetime or telephone calls from the other parent.
The father is seeking orders that the child can communicate with the other parent through facetime or telephone each Tuesday, Thursday and Sunday at 6.00pm.
The mother stated that the father has refused to facilitate facetime communication between herself and the child, contrary to the interim orders made by SJR Jenkinson on 22 February 2023.
On 29 July 2024, the mother stated the father terminated the facetime call after two minutes and alleged that the father was telling the child that he did not want to speak with the mother.
On 19 August 2024, the mother stated that she called the father to speak with child, after which she waited four minutes for the father to retrieve the child, she called out to the father stating that she was still here, and the father disconnected the call.
The mother stated that she stopped trying to call the child in December 2024, because her calls were not being answered. She stated she has not had a facetime with the child since September 2024.
The father contended that he tried to accommodate the mother’s facetime calls with the child, however, stated that during some of these calls the mother would make disparaging comments.
The father stated that he tried to negotiate with the mother to change the time for facetime calls with the child to accommodate his routine at night, however, stated that he was met with hostility.
The single expert recommended that the child should continue to have the opportunity to facetime his mother, but at times that fit in with the child’s schedule, and not whilst the child is in the bath, as was suggested by the mother.
Communication generally including the facetime communication has been fraught with difficulty.
The father failed to comply with the orders of the Court to facilitate facetime of this very young child with his mother. The father was obliged by the orders to facilitate time each alternate day. There was no proper explanation as to why the father failed to comply and facilitate what was intended to ensure regular contact between the child and his mother. His explanation for his failure to comply was inadequate. To suggest it interrupted bath time or was in some other way was an inconvenience is no explanation or excuse. The father by refusing to facilitate the time that was ordered unfairly deprived the child of meaningful communication with his mother over a significant period of time.
To now deprive the child of that opportunity on an ongoing basis would be to continue to deprive him of the opportunity to communicate with the parent with whom he is not living. That would not be in his best interests as he is a very little boy. As the single expert explained, a week is a very long time for a small child. Facetime provides a means of the child communicating with each parent. As the child gets older he will more easily be able to engage in a conversation or a story over facetime and it will provide important opportunities for the child to engage with each parent when he is not otherwise spending time with that parent.
I have no doubt from the mother’s evidence that she will, as she said, respect the father’s role in the child’s life and do all thing to properly facilitate and encourage the communication for the child’s benefit. Despite the father’s poor compliance with the orders to date, given he is seeking such mutual orders and given the conclusion of the legal proceedings with hopefully a reduction in the tensions that litigation can create, I am satisfied that such orders are in the child’s best interests.
I will order the parents to facilitate a facetime between the child and the other parent each alternate Sunday at 6.00pm when the child is in their care.
I will order the father to facilitate a facetime between the child and his mother at 6.00pm each Thursday night when the child is in the care of his father and the mother to facilitate a facetime between the child and his father at 6.00pm each Tuesday night when in the care of his mother.
Given the child is over two years old he should have the capacity to engage at 6.00pm with the parent with who he is not living so that each parent can be involved and informed of the child’s day. This audio-visual communication will maintain the child’s connection with each parent and is an additional aspect of supporting his development, psychological and emotional welfare.
Whether the mother should pay one half of the ICL's costs.
The father consented to payment of one half of the ICL’s costs. I make that order.
The mother opposed payment of the ICL’s costs due to her own financial circumstances.
The mother will be the primary carer for the child as a consequence of the consent orders today made. She earns a modest income and is a single parent. Exhibit 22, being an updated child support assessment, recorded the mother’s 2023-2024 annual provisional income as $74,530.00. The mother is currently on leave from her employment.
The mother has incurred significant expense in the running of these proceedings. The orders that have been consented to are largely the orders that she has sought since the commencement of the proceedings by her in 2023.
I am satisfied that it would cause the mother hardship to impose the additional burden of the ICL costs.
I note the important work undertaken by the ICL in this case and thank the ICL for her assistance in this difficult matter.
RISK ISSUES THAT REMAINED
The mother and the father each contended that a significant issue in this matter is whether the child’s safety is at risk in the care of either parent.
The mother’s mental health issues
The father contended that the mother has suffered from “mental issues or ailments” that have been unaddressed.
In late 2014, the mother was charged with a high range prescribed concentration of alcohol (“PCA”) which was dealt with under the mental health act. The mother stated that she was diagnosed with an adjustment disorder and was subsequently hospitalised for a period of three or four days.
The mother disclosed that she voluntarily admitted herself to the hospital in mid-2019 for two short periods, at a time which she was struggling with her mental health.
In mid-2021, the mother stated that she sought psychological assistance through victim services counselling. At this point the mother began to engage the services of Mr G, who she continues to be her psychologist.
Following an incident between the parties in late 2021, DCJ conducted an investigation through which they requested the mother complete a mental health assessment, which she completed in early 2022.
Ms H stated in her affidavit that when she was caring for the child whilst the mother was present she “felt as though [she] was looking after both of them.” She stated she was concerned about the mother’s struggles with her mental health as she was often confused, sad, angry, crying, screaming or swearing, and would not try to contain herself in from of the child.
During these times, Ms H stated that the mother’s moods would quickly change, and she would have to convince the mother to eat, leave the house, care for herself, and would have to explain the importance of a health physical and mental environment for the child.
Ms H was a childcare worker who had worked with the mother for a period of less than four weeks at the time the parties separated. I accept Ms H’s evidence as to her observations of the mother during the period of approximately four weeks were accurate and the mother was unwell and was emotionally dysregulated. While I accept her observations they are during a limited period of time where the mother, on her own evidence, was dealing with significant health issues, the primary care of the young child, and the parties failing relationship.
The mother had been through surgery after diagnosis of a medical disease and had undertaken a period of treatment. The mother had also recently terminated a pregnancy before commencing treatment and the parties both agree there was tension and arguments in the party’s relationship at the time. She had a young baby to care for. Although the father said he was at home assisting with care at this time this was in direct conflict with the evidence of Ms H who recalled the father leaving for work early in the mornings and on most occasions, Ms H being home with the mother and the child.
The mother’s evidence was that when she completed her final treatment her circumstances began to improve.
In respect of the father’s report of the mother exaggerating her medical symptoms and the seriousness of her diagnosis, a theme that was embraced by the single expert, I reject that there is any evidence to support such a finding.
In addition to the surgery the mother required surgery in respect of another medical issue. She received treatment to address the disease impacting her bowel and her liver. Whether the mother had stage three cancer or stage four with metastasis is not something that I can find on the state of the evidence, nor do I need to. I am, however, satisfied that the mother was diagnosed with a medical disease that required surgery and treatment. Whether that treatment was preventative or was to address specific issues in not clear on the evidence. The mother described her understanding that she had lesions. She gave evidence that after treatment completed that she has been advised she had “no evidence of disease” (“NED”).
In the single expert report, Dr L stated that the mother was independently assessed by Mr P, who concluded that she did not meet the criteria for any mental health conditions and that no pre-existing personality disorders were identified. Mr P viewed the mother as “not showing any mental health concerns that would adversely impact on her parenting.”
Dr L stated that she largely agreed with the assessment of Dr R, psychiatrist and Ms Q, psychologist, who identified in 2022 before the child was born the mother as having a “borderline and histrionic personality organisation with significant emotional dysregulation, impulsivity and outburst and poor distress tolerance.” At that time the mother was being supported by Mr G. The assessments of these doctors were tendered into evidence and marked as exhibit 16.
The mother’s current treating psychologist, Mr G, prepared an affidavit annexing his report of 29 November 2024 and was required for cross examination. Mr G was provided with a copy of the report prepared by Dr L, as was recommended by Dr L in her single expert report.
The mother engaged in psychological counselling since 2021 with Mr G. His evidence was that the mother had worked to develop strategies to minimise and control dysregulated behaviour, that she is doing well and that there is no DSM diagnosis. He was a frank and impressive witness. I accept his evidence and am persuaded by his opinion as to the state of and improvement to the mother’s mental health.
Mr G stated that he has been engaged with the mother since mid-2021 through Victim Services approved counselling. The mother’s victim services counselling allocations were extended in 2023 and 2024. He stated that at the time of preparing his report the mother was attending three to four weekly appointments, and that she had attended a total of 37 sessions since mid-2021.
Mr G stated that the mother’s symptoms do not meet the criteria for a diagnosable mental health disorder and that her symptoms appear consistent with the psychological stressors she has encountered. He also stated that her symptoms nor her demeanour does not impact her capacity to care for the child.
His evidence was that she had continued to be engaged. Her session are funded by victims services and would continue. The mother said, and I accept, she intends to continue to be supported by Mr G. Well before the parties separated the mother was engaged with support from him. I accept that she will continue to seek support as and when she needs to do so.
I accept the evidence of Mr G.
Issues of psychological harm from the mother’s “help seeking”
Dr L’s report stated that the mother was concerned that the child may be showing some ASD traits. The report writer stated that the child demonstrated good non-verbal communication skills, which is not common in children with ASD. The report writer stated that she was concerned that the mother may seek further assessments or medical opinions in relation to her concerns that the child may have ASD, “that do not seem warranted.”
This criticism of the mother of unwarranted help seeking was a basis for concern of the single expert. The single expert had not been told by the father that the child’s paediatrician had identified the possible ASD traits in the first meeting with the paediatrician in December 2023 nor that Ms H had also raised possible ASD traits with the father. The possible diagnosis and neurodiversity remained a feature of the paediatrician review twelve months later in December 2024.
The mother took the child to appointments with doctors following her observation of bruising and other injuries on the child. This was described by the single expert as help seeking behaviours about which the single expert also expressed concern as to the mother’s mental health.
Curiously, despite the single expert being taken to the photographs of the bruising observed, and to her own note that three of the four doctor entries identified the bruises were above average in number and size than would be expected for a child of this age, the single expert maintained her concern that the mother was unnecessarily help seeking.
The mother was kept entirely in the dark by the father as to the medical needs of the child. He refused steadfastly, despite agreeing to use the communication book and then agreeing through lawyers to use the Our Family Wizard app, to communicate with the mother or respond to any query she had in respect of the child. She asked how the bruising had occurred. A simple explanation may have assuaged her concerns and avoided the mother taking the child to what the father then contended were unnecessary appointments.
The single expert was critical of the mother for what she described her oral evidence as “the dramas that happened around the ENT.”
As with the ASD concern, the mother had correctly identified the child had language delay and gave evidence, that was not in contest, that the father told her that the child needed surgery. The mother was not challenged in respect of her evidence as to what she was told by the father.
The father told the single expert that he did not say that the child needed surgery but that he may require surgery.
Whatever was said, the mother believed that the child was to have surgery that was not required. She was in the dark due to the father’s failure to communicate with her. The mother sought opinion and wrote to say she did not consent to any unnecessary medical procedure. There is no criticism that could be levelled at the mother in circumstances of the father’s steadfast refusal to inform the mother as to any medical issues despite a court order requiring him to so advise her.
A further criticism of the mother, by the single expert, related to the mother’s own help seeking in respect of her medical diagnosis and treatment. The single expert concluded at [199] of her report:
As I have summarised in paragraphs 190-193 above, my assessment of [the mother] has raised some significant concerns about her personality functioning and her pattern of engagement with medical services and other professionals. I struggled to make sense of her engagement with various services around the treatment of her [illness] and to follow the exact nature of her diagnosis because she appears to have gone to several different services for treatment. In my experience this is quite unusual. Most people engage with a [medical] service at one hospital and follow recommendations and protocols set out by their [specialist]. Her repeated presentation of [the child] to medical services is, in my opinion, much more about meeting her needs for reassurance, and possibly attention, rather than anything to do with risk for [the child].
The evidence does not support such a concern or conclusion. The mother had limited daytime contact with the child. The father refused to communicate with her. She asked about the cause of observed injuries including the bruising referred to above and injuries to the child’s face and head. She was not given any explanation. In those circumstances the mother seeking help from medical professionals is understandable and not as suggested a need for reassurance and possibly attention.
I do not accept on the evidence that the mother has engaged in unwarranted help seeking behaviours but accept that she has sought advice reasonably in the circumstances.
The notation
The mother consented to a notation sought by the father that the mother would continue to see Mr G for the balance of the remaining 17 hours that have been approved through Victims Services.
A notation has little utility other than perhaps flagging to the father her commitment to her mental health. The mother’s evidence, which I accept without reservation, is that she is committed to her mental health and engaging with appropriate supports where necessary as she has done since 2021. The purpose of the notation may be simply to assuage the father’s concerns. In fact, had he read the report of Mr G when it was received, it would have reduced any concern held by the father as to the mother’s mental health or commitment to accessing supports when needed.
Given it was a consent position, I include the notation as sought by the father and consented to by the mother.
Whether the father should be required to undergo drug and alcohol testing and if so for what period
The other issue of alleged risk, that was subject of previous Court orders, was the application of the mother for the father to continue with drug and alcohol testing monthly over the next three years.
The mother is seeking orders restraining the father from consuming any alcohol and non‑prescription or prescription drugs (save in accordance with legitimate directions of medical practitioners) during all periods that the child is with the father and 24 hours prior to the child being in the father’s care. The mother also seeks orders for the father to undergo randomised drug and alcohol testing and that his time with the child be suspended if he does not comply with and or satisfy the requirements of the test.
The parties agreed to an order that each parent be restrained from consuming alcohol in excess of the legal limit for driving whilst the child is in their care and 12 hours prior thereto.
The mother's drug and alcohol testing orders, as outlined in her Further Amended Initiating Application filed on 4 July 2024 are as follows:
22.That the Father be and is hereby restrained from consuming any alcohol and non prescription drugs or prescription drugs (save in accordance with legitimate directions of a treating medical practitioner and obtained on a bona fide basis for medical purposes only) during all periods in which [the child] spends time with him and for a period of 24 hours prior to [the child] spending time with the Father.
23.That the Father undertake random supervised urine analysis in accordance with standard AS/NZS4308 within 24 hours of any written request made by the Mother through her solicitor, with the Mother being permitted to make no more than one request per month, at an accredited testing laboratory in accordance with chain of custody procedures for the detection of all drugs and alcohol including but not limited to cocaine, opiates and amphetamines and the Father shall instruct the testing facility to provide the testing results directly to himself and the Mother and the Father shall forthwith provide to the Mother within 24 hours of receipt any reports and hereby does irrevocable authorise the Mother to request (if necessary) supporting documents form the tester directly.
24.That the Father shall submit himself to hair follicle testing at [F Company] for the purposes of obtaining a drug and alcohol test using the Drug Detection Agency's standard 18-penal hair drug test within 24 hours of any written request made by the Mother through her solicitor, with the mother being permitted to make no more than one request per calendar month, and the father shall instruct the testing facility to provide the testing results directly to himself and the Mother and the Father shall forthwith provide to the Mother within 24 hours of receipt any reports and hereby does irrevocable authorise the Mother to request (if necessary) supporting documents from the tester directly.
25.That the Father be restrained from the date of this Order from dying or treating his hair in any way that would interfere with the testing to be carried out pursuant to these Orders and from cutting his hair or taking any action to cause his hair which is tested pursuant to Order 24 above, including his underarm hair. to be of a length shorter than 4cm.
26.In the event the Father fails to undertake any testing pursuant to Orders 23 and 24 treat his hair in any other way including cutting it. dying it or interfering with it so as to interfere with the veracity of any testing at the time of each testing interval or such test result shows the presence of illicit. illegal or non‑prescribed drugs taken without legitimate direction from a treating prescriber, then [the child’s] time with the Father pursuant to these Orders is suspended until such time as the Father returns a negative test result.
27.That within 24 hours of a request by the Mother's solicitor in writing, such requests to be made no more than fortnightly the Father shall submit to chain of custody blood testing for the purpose of a carbohydrate-deficient transferrin (CDT) test to be analysed using the high -performance li quid chromatography (HPLC) method with the results of such testing to be provided to the Mother's solicitor within 24 hours of issue .
28.The Father is to authorise and direct the laboratory to forward the results of such testing directly to the Mother's solicitor [...] and these orders shall constitute an Order of the Court authorising the laboratory to forward such results as soon as reasonably practicable after they issue.
29.In the event the Father fails to undertake a CDT test in accordance with Order 27 returns a result above the cut-off for moderate consumption of alcohol. then [the child’s] time with the Father pursuant to these Orders is suspended until such time as the Father returns a test result below the cut-off for moderate consumption of alcohol.
30.That orders 23 to 29 inclusive apply for a period of 3 years from the date these orders are made.
Senior counsel for the mother accepted that a 48-hour timeframe would be appropriate, as opposed to the 24-hour timeframe sought. The previously ordered drug and alcohol testing regime made in the Orders of SJR Jenkinson on 12 December 2023 also imposed a 48-hour window in which to submit to the test.
The father opposed the mother's orders for drug and alcohol testing on the basis that such orders were unnecessary and oppressive. Counsel for the father submitted that if the Court were minded to make orders for drug and alcohol testing, it would be appropriate for the tests to occur for not more than four times a year for a period of one year, but maintained that such orders were not necessary.
The basis for the mother seeking such orders was due to the father’s history of prior drug use, the father's non-compliance with the drug and alcohol testing regime ordered by SJR Jenkinson on 12 December 2023 and the mother's concerns of the father's continued drug and alcohol use as a posing a potential risk to the child.
The task of assessing risk involved an evidence-based analysis following consideration of the factual circumstances, including historical conduct (see Isles & Nelissen (2022) FLC 94-092). Findings of past conduct will assist in the prospective assessment as to whether there is a possibility of harm arising in the future.
To make orders that are in the best interests of the children and best promote the safety of the children and each person who has care of the children, the Court must undertake an assessment of their safety in the individual circumstances of each case. In this case consideration must be made of the cumulative effect of the whole of the evidence in determining an assessment of risk, as opposed to dealing with each individual allegation in an isolated fashion (see Full Court in Eastley & Eastley (2022) FLC 94-094).
The father’s history of substance and alcohol use
The mother contended the father has a history of problematic illicit and prescription substance usage and engaged in excessive drinking.
The mother asserted that the father drinks alcohol to excess and would engage in frequent substance usage during the parties’ relationship, including illicit substance usage and recreationally taking prescription substances.
The mother alleged that during the relationship the father would regularly leave the house and would often return home smelling of alcohol and under the influence of drugs. The mother stated that during the parties’ relationship she would observe the father using illicit substances several times a week. The mother conceded to using an illicit substance after feeling pressured to do so by the father but stated that she has not used it since having the child.
The father contended that prior to the child being born both parties would, infrequently consume an illicit substance together. The father stated that there was an instance in December 2020 where the mother arrived at his house unannounced with $2,000.00 worth of an illicit substance. The father denied ever forcing the mother to partake in drug usage.
The father stated that during the relationship he would occasionally drink, he denied having any problems with alcohol. The father disclosed that in 2019 he was charged with a drink drive offence by NSW police but stated that he had only consumed two “schooner” glasses on that day and had very little food and water, resulting in being over the limit.
The mother alleged that in around late 2022 the father filled and took her painkiller prescription. The father denies doing this. The father stated that he had a conversation with the mother’s doctor about getting a script of painkillers for her following her direction to do so, as she was in extreme pain and could not speak.
The mother stated that on around 6 March 2023, whilst she was cleaning the child’s room she discovered prescription painkillers, which she stated the father would recreationally take multiple times a week during the parties’ relationship.
The mother conceded that she has observed the father being a loving parent when he is sober and not using drugs, however, maintained her concern that in the absence of rehabilitation and mental health intervention the child will be at risk of psychological and physical harm. The mother stated in cross examination that when the father is not under the influence of drugs and alcohol that “he is exactly what [the child] needs as a father and is capable of giving [the child] what he needs.”
The mother conceded that although she did not know if he was currently still engaging in illicit substance use or excessive alcohol usage, she stated his behaviours at changeovers have been, at times, questionable of some sort of substance abuse. She agreed that the risk of harm that the father’s substance and alcohol use creates for the child is ameliorated by the drug and alcohol testing regime, however, to date she has not had confidence that the father has not engaged in substance and alcohol usage due to his continued non-compliance with the testing regime as required by the SJR Jenkinson Orders.
The father gave evidence that he no longer drinks or uses drugs since being ordered by the court to undergo hair follicle, CDT and Liver Testing.
Exhibit 4 is a record of the father's drug and alcohol test results. The mother suggested the results from the test have appeared out of the ordinary, whereby the father's Liver Function test results from 21 March 2024, 1 May 2024 and 30 May 2024 indicated a result above the normal range. The father's hair follicle testing from 29 July 2023 detected the presence of the drug Flunitrazepam. The father provided no explanation in his affidavit, as to the detected presence of Flunitrazepam in his test results.
In the single expert report, Dr L addressed the mother’s allegations about the father’s drug and alcohol usage. In the report Dr L references the Hair Test Result Interpretation report dated 24 October 2023, which was prepared by Dr S at the mother’s request. Dr L stated that the interpretation report addressed two hair follicle tests, including the test on 29 July 2023, which appeared with the Flunitrazepam result.
Dr L summarised the findings of this report stating that:
94.[Dr S] states that Flunitrazepam, which is a type of benzodiazepine, is the active ingredient in commercial medication such as Hypnodorm. It is only legal in Australia when prescribed and is used for the treatment of severe insomnia. Prescribing instructions do not recommend continuous long-term use i.e., longer than two to four weeks.
95.[Dr S] refers to literature in which users of the drug generally had concentrations of below 50pg/mg. The summary of the studies he quotes appear to indicate that doses above 160 pg/mg were not found. [Mr Aaltink’s] hair sample contained a concentration of Flunitrazepam of 480pg/mg. [Dr S] notes that “this concentration appears high.” He considers that it would be consistent with the regular use of Flunitrazepam, possibly at high doses between early April 2023 and early July 2023. The information in [Dr S’s] report concludes that this level of use of Flunitrazepam would potentially significantly impair [Mr Aaltink] ability to care for a child.
(Emphasis added)
Dr L stated that she asked the father about these results to which he responded that on occasion he did use benzodiazepines and Hypnodorm, to address symptoms that he experienced due to an injury he had previously sustained after a car accident. The father agreed that he had used the prescription in May 2023 when he was experiencing pain and struggling to sleep. He did not give this evidence in his affidavit but deposed to having “not taken illegal drugs or prescription drugs that have not been prescribed to me since September 2021.” He gave no evidence as to what drugs have been prescribed to him.
The father stated to Dr L that he was unsure why the results depicted such high levels of Flunitrazepam and suggested that it may have been due to a medication he was taking to treat male pattern hair loss. Dr L noted in her report that “it is outside my area of expertise to comment as to the possible veracity or otherwise of this explanation.”
Counsel for the father submitted that, save for this one test result, there have been no other occasion where the father has tested positive for the use of drugs. Counsel stated that the testing regime orders as sought by the mother are unnecessary and oppressive and that despite the results that the father had provided the mother could not accept that the father was not using drugs or alcohol.
Counsel for the ICL made submissions that the Court would comfortably find that the drug abuse and alcohol abuse alleged by the mother does not pose a risk to the child, and that the test results, although not fulsomely complied with, do provide assurance to the Court that the father is not engaged in ongoing and consistent usage of drugs.
The father’s non-compliance with the Orders of 12 December 2023
There were orders made by SJR Jenkinson on 12 December 2023 by consent between the parties which restrained both parties from consuming illicit substances or prescribed medications not in accordance with the prescriptions, they also restrained the parties from consuming alcohol in excess of the legal driving limit when the child is in their care and 12 hours prior thereto.
The Orders also stated that each party was to undergo CDT testing, a Liver Function Test, hair follicle testing at the request of the ICL and that those tests were to be undertaken within 48 hours of receiving the request. These orders were tendered into evidence and marked as exhibit 13.
The father has failed to comply with the terms of the orders made on several occasions. The ICL case outline, marked as exhibit 3, set out the dates and times of the requests made and times the requests were complied with, or if they were complied with at all.
The mother has complied with the hair follicle testing when requested and her tests have been negative. She contended the father has not complied with the orders by either submitting the testing late or not at all, and on every occasion submitting hair strands that were non-compliant with the four cm length, as required in Order 4 of the Orders.
The correspondence requesting he undergo drug and alcohol testing from the ICL became exhibit 11; the exhibit shows that in total 13 requests were made by the ICL between 31 January 2024 and 17 February 2025. Exhibit 3 indicates that out of the 13 requests made by the ICL to the father, only two requests were complied with in respect of the 48-hour timeframe for compliance. Exhibit 3 also indicates that there were three occasions where the ICL did not receive any results from the father. In submissions counsel for the ICL stated that this did not necessarily reflect that the father had failed to complete the testing, as some of the results were not supplied to the ICL. Notwithstanding this submission, the father’s failure to provide the tests to the ICL was in and of itself a breach of the orders.
Upon review of the T Company Drug Screening Certificate at Exhibit 4, there is a period between 18 April 2024 until 11 June 2024, that is not covered by the drug testing completed. Counsel for the ICL submitted that the results that were provided would satisfy the Court that the father has not engaged in ongoing and consistent usage of drugs and that the tests provide did cover a long period of time.
The father stated that he has complied to the best of his capacity to complete any testing request from the ICL. He gave an explanation about the delay in complying with the requests in the relevant time period. The order made had a level of ambiguity in that the father was ordered to contact his GP within seven days of the orders being made to facilitate the 48-hour notice periods. Although there may be some ambiguity he was and remains legally represented. The orders were made by consent. There was a suggestion he could not comply due to his work schedule and the father continually stated that during this time there was “a lot going on” in explanation of his failure to comply with orders generally. The issue of the potential risk to the child is not addressed by continued non-compliance with orders to produce drug and alcohol testing as ordered.
It was put to the father in cross examination that his non-compliance with the testing regime would not give the mother reassurance that he was not engaging in alcohol or substance abuse. The father denied in cross examination that he was “dodging” the testing reports. He was not responsive to the question put to him in cross examination and was not able to consider how the mother may feel in respect of the father’s continued non-compliance with the orders.
In submissions, senior counsel for the mother stated that the Court would not accept the father’s evidence that there was “a lot going on” and that the Court would not be satisfied with the father’s level of compliance with the Orders. Senior counsel submitted that mother’s ongoing degree of suspicion or concerns about the validity and nature of testing was understandable given the father’s lack of compliance with the testing regime.
This application is not a contravention application. His failure to comply with the orders is one factor, but not a matter that I give significant weight. What is significant is the finding that I make now of possible risk of harm to the child and if such a risk exists what orders can ameliorate that risk.
Given the possibility that the use of flunitrazepam would potentially significantly impair the father’s ability to care for the child, as observed by Dr S and reported to Dr L, there is a risk of harm to the child in the care of his father when impaired. This risk can be ameliorated by the father undergoing the drug testing regime for a period of time. While I accept the ICL submission that there are long periods of negative drug screens, there was a request made for hair follicle testing in July 2024 which would have covered the previous three months which were unaccounted for, as stated above. No results were provided.
The father admits to the single expert of the use of a drug which could potentially impair his capacity to care for the child. He was opaque in his own evidence as to the circumstances of this use.
In the circumstances, orders requiring drug screening of no more than four requests over the next twelve months will provide assurance to the mother and will establish his abstinence if the drug screens are clear. If the father is, as he says, drug free, the ultimate outcome of the testing will be that it reassures the mother’s concerns. If, as the mother fears, the father has continued to use illicit drugs it provides notice and therefore a safety net for the child. The orders are of a limited duration of twelve months and on no more than four occasions and are warranted in the circumstances of the case being necessary to ensure the child is in a safe and drug free environment. He is a young child who is vulnerable by reason of his age and his global developmental delay. A cautious approach to this possible risk is appropriate.
The mother seeks that the child’s time is suspended in the event a positive result is produced. I will not make such an order. If the results are positive the mother will have the information to make an application to the court seeking to suspend or vary orders in the event that an agreement cannot be reached following such a result. If it is necessary for an application to be made in those circumstances the mother can pursue costs incurred by the necessary application. A self-executing order simply suspending time without any evidence as to the nature and extent of alleged drug use is not warranted in the circumstances of this case and with the history of distrust between these parties.
As stated above the mother is also seeking that the father undergo testing with respect to his consumption of alcohol. However, as put by counsel for the ICL in submissions, the Court would comfortably find that the father’s alcohol use does not pose a risk to the child. The father stated in cross examination that he does not drink and denied that he had intentionally provided hair samples shorter than that which was ordered, in an attempt to evade the detection of alcohol in his test results.
The mother contended that, in addition to the father’s hair follicle test results of 29 July 2023 which detected the presence of Flunitrazepam, the father also had various Liver Function test results which appeared out of the ordinary. The mother stated that the results of 21 March 2024, 1 May 2024 and 30 May 2024 indicated a result above the normal range. Exhibit 4 only includes the test results from 1 May 2024. There was no evidence before me to establish the cause of any blood test results outside the normal range, nor was there any evidence relied upon that interpreted the results.
The CDT results at exhibit 4 were between 1.3 per cent and 1.5 per cent which the report states is not a result that is considered to be equivocal (being 1.7 per cent to 2 per cent). There was no report relied upon in the proceedings interpreting the CDT results. The mother’s evidence as to her interpretation can be given no weight. Additionally, notwithstanding the results, there was no evidence that the father had engaged in excessive alcohol consumption that posed a potential risk for the child since separation, as to support an order as sought by the mother for the father to undergo alcohol testing.
There was no evidence of regular or ongoing alcohol misuse that supports the making of the CDT tests sought by the mother other than her speculation that the father’s “substance abuse” may have been the cause of what she perceived as questionable behaviour at changeover.
It must be recognised that there must be some end to the drug testing. It must also be recognised, however, that four tests per year, in the circumstances of this case, cannot be regarded as onerous.
The mother’s solicitor did not press for both urinalysis and hair follicle testing and accepted that hair follicle testing was sufficient testing for the concerns that had been raised.
I decline to make the orders for CDT and urinalysis testing.
THE CHILD’S BIRTHDAY
This year, the child turns three. The mother will spend overnight time with him from after childcare on Friday until Saturday afternoon. The mother sought time until 4.00pm. The father sought that time end at 2.00pm. The time will conclude at 3.00pm for the reason that it is the midpoint and might encourage the parties to embrace compromise at some stage in the child’s life. A 3.00pm handover also enables the father to spend time in the afternoon and have an early birthday dinner with the child so that he enjoys this special day with both parents.
The child has been the subject of litigation since before his first birthday until today. I sincerely hope his parents can change their entrenched behaviour toward each other and start to put the child’s needs and best interests ahead of their conflict. If they are able to do so the child may well have the benefit of two loving engaged parents to help him reach his full potential.
CONCLUSION
For the above reason I am satisfied that these orders, together with the consent orders the parties reached, are in the child’s best interests.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 13 March 2025
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