Partington & Magra - [2023] FedCFamC1F 536

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Partington & Magra [2023] FedCFamC1F 536

File number(s): BRC 6900 of 2018

Judgment of: BAUMANN J

Date of judgment: 3 July 2023

Catchwords: FAMILY LAW – PARENTING – Contested residence – Where one child was removed from the father’s primary carer and placed in the care of his adult maternal half-sister – Where the father seeks the child be returned to his care – Where the mother has sporadically engaged in the parenting of the children throughout their lives – Where the mother now seeks a more substantial role in caring for the children – Where the parties agree to follow the wishes of the eldest child in her views as to where she lives – Where the eldest child has suffered serious adolescent mental health challenges – youngest child to return to the father’s primary care

Legislation:
Domestic and Family Violence Protection Act 2012 (Qld)

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode (2006) FLC 93-286

Hall & Hall (1979) FLC 90-173

Division: Division 1 First Instance

Number of paragraphs: 80

Date of hearing: 13–15 March 2023 and 28 April 2023

Place: Brisbane

Counsel for the Applicant: Mr Gunn

Solicitor for the Applicant: Alexander Law

Solicitor for the First Respondent: Litigant in person

Counsel for the Second Respondent: Ms Shepherd

Solicitor for the Second Respondent: Robyn McKenzie Solicitor

Counsel for the Independent Children’s Lawyer: Mr Hackett

Solicitor for the Independent Children’s Lawyer: TLG Law
ORDERS

BRC 6900 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PARTINGTON

Applicant

AND:
MR MAGRA

First Respondent

MS CASTELLO

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

3 July 2023

THE COURT ORDERS:
1.That all previous parenting Orders and parenting plans are discharged.

X
2.That the Applicant mother have sole parental responsibility for major long term decisions for the child, X born 2007, with the mother to consult the father in writing before making any major long term decisions, save in the case of an emergency, but ultimately after consideration of any views expressed by the father, the mother have authority to make the decision.
3.That X live with the mother.
4.That X spend time with Y as agreed between the mother and father.
5.That X spend time with the father as determined by X.
6.That pursuant to s 68B of the Family Law Act 1975 (Cth), the father be restrained from removing X from the primary care of the mother or attending the home of the mother, without the prior written consent of the mother.

Y
7.That the father have sole parental responsibility for major long term decisions for the child, Y born 2015, with the father to consult the mother in writing before making any major long term decisions, save in the case of an emergency, but ultimately after consideration of any views expressed by the mother, the father have authority to make the decision.
8.That Y live with the father from 12 noon on Thursday 6 July 2023.
9.That these proceedings be adjourned for Case Management Hearing at 9.30am on 17 July 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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

After a brief relationship for nine months in 2006/2007, the parents in this case separated in March 2007 before the birth of their daughter, X, in 2007. Another child of the mother, Y, was born in 2015, his biological father being Mr B. The care arrangements for X from her birth are in dispute, but what is not disputed is that at least by April 2018 both X and Y were living with the father. In these Reasons I will describe Mr Magra as “the father”, even though it is clear he is not the biological father of Y.
The current proceedings seeking parenting orders for the children were commenced by the mother in June 2018 and as these Reasons reveal, has had a torturous journey that has necessitated an interim change of residence of the children to Ms Castello, the 26 year old daughter of the mother from an earlier relationship. It seems that the proceedings commenced by the mother in June 2018 was the first time a Court, exercising powers under the Family Law Act1975 (Cth) (“the Act”), was ever engaged by either parent. Although in different documents Ms Castello is described as “the half-sister” or as “the aunt”, to avoid confusion, in these Reasons I will simply describe her as “Ms Castello”.
The future care arrangements that are likely to meet the best interests of X and Y require some complex and hotly contested issues to be determined. The most significant issue where X, at age 15 years, has expressed by words and her actions a desire for fluidity in her care, is where Y should live and what time he spends with the other important adults in his life.
COMPETING PROPOSALS
After a short period from the close of evidence on 15 March 2023, when the parties were offered some time for reflection, Independent Children’s Lawyer (“ICL”), as directed, prepared a minute of order which was circulated and is Appendix One to these Reasons. On 28 April 2023, oral submissions were received using the ICL’s minute as a starting point. The father, Mr Magra, provided written submissions. Arising from the submissions by all parties, I summarise the parties’ final positions as follows:
Independent Children’s Lawyer
Mr Hackett of Counsel, representing the ICL, acknowledged that this is a difficult case. In some respects, the proposal which he makes is the least-worst option. The proposal provides for the future arrangements for X and Y to be different, reflecting not only the differences in ages but also the fact that all the parties regarded it as appropriate that X be given some flexibility to control her living arrangements. On balance, the ICL proposes that Y live with Ms Castello “for at least 24 months”. Although when pressed by the Bench, the ICL conceded there was “no magic” in the period of 24 months.
The ICL did not assert that Y having unsupervised time with the mother or the father (each parent to have one weekend in three) would expose him to an unacceptable harm in their care such that the time should be supervised. If Y lives with the father, then the ICL proposed that orders for prescribed time for Y to spend with Ms Castello should be made to preserve that relationship as well as the mother. The ICL also agreed, as the proposal attached failed to deal with school holidays, that Y should spend half of school holidays with the father and the balance shared by agreement between the mother and Ms Castello.
Ms Castello
In final submissions, Ms Shepherd of Counsel for Ms Castello broadly adopted the position of the ICL but raised concerns about the prescription of the child Y living with Ms Castello for 24 months because of the possibility of future proceedings. If the Court ordered that Y live with the father, then Ms Castello seeks an order for the child to spend one weekend a month with her and a proportion of the school holidays. She conceded that if Y lives with the father, he should have sole parental responsibility with an obligation to consult. Again, the submissions of Ms Shepherd should be interpreted as also accepting neither parent presents as an unacceptable risk to Y.
Mother
Mr Gunn of Counsel for the mother broadly adopted the orders proposed by the ICL as well. He again accepted, as the mother’s case outline filed 6 March 2023 made clear, that X’s position should be treated differently to that of Y. However, as was referred to by the Bench on occasions during the trial, the mother’s articulated position in her case outline that:
9.[Y] shall live with the third respondent.
10.[Y] shall spend time with the applicant on the weekends, and for the school holidays period of 6 months with a view to reintroducing [Y] to residing with the applicant full-time.
was a concern.
In submissions, Mr Gunn often, it seemed taking instructions directly from the mother somewhat “on the run”, did his best to persuade the Court that the mother would accept Y living with Ms Castello and that the Court would be wrong to conclude that once proceedings were finished, Ms Castello would not merely facilitate her mother’s longstanding desire for Y to live with her. In the course of these exchanges with Mr Gunn, the Court raised as a possible order some form of restraint against Y living with the mother (however difficult that might be to enforce) and Mr Gunn obtained instructions to agree with such an order. Although it was distressing for the mother to contemplate, if Y was ordered to live with the father then the mother proposed Y spend time with her every third weekend and half of school holidays.
Father
Despite the father during the hearing giving the Court the clear impression that he agreed that X and Y would be better served by different orders, the father’s ultimate final position was expressed in these terms:
1. That the children, [X], born […] [2007] and [Y], born […] 2015 live with the first Respondent, [Mr Magra].
2.That the first Respondent have sole parental responsibility for the long-term care, welfare and development of the children.
3.That [Y] spend time with the Applicant [m]other on each alternate weekend from 5:00pm on Friday until 3:00pm on Sunday with the overnight time to take place at [the] residence of [Y’s] half-sister [Ms Castello].
4.The handover of [Y] [and [X]] are to take place at the McDonald’s in [Suburb C] with the sister [Ms Castello].
5.That [X] spend time and communicate with the Applicant [m]other as agreed between the parties.
6.That [Y] have telephone call and video communication with the Applicant [m]other as agreed between the parties.
7.That the Applicant and Third Respondent not consume drugs or any illicit substances in the presence of the children or be in any way affected by them whilst the children are in that person’s care.
Although his case outline (also filed 6 March 2023) proposed that both children’s time with the mother be supervised, after all the evidence, the father did not seek to assert that Y’s time with the mother, if unsupervised, would expose him to an unacceptable risk of harm. The final proposal made by the father did not seek to prescribe time for Y to spend with Ms Castello. My clear impression from the father’s submissions is that he believes when Y spends time with the mother he will probably spend time with Ms Castello, as facilitated by the mother.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Act and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3), which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
The parties’ material relied upon was set out in their case outlines filed, although the father did not rely upon one of his witnesses. In the end result, the only witnesses cross-examined were the mother; the father; Ms Castello; Ms Castello’s partner, Mr D; and the family report writer, Ms E. Additionally, the Court had access to and has considered Exhibits 1 to 17 tendered during the course of the proceedings.
BRIEF CONTEXTUAL BACKGROUND
Statements of fact hereafter should be construed as findings of fact.
Both parents were born in 1979, and at the time of Judgment are 44 years of age. The mother has had a number of children, as these Reasons will reflect. The father himself has other children from earlier relationships.
I am satisfied that the parties commenced cohabitation in or about mid-2006 and separated on the first occasion in approximately early 2007 – that is, approximately a nine-month relationship. It clear that at the time of the separation, the mother was pregnant with X, who was born in 2007. X is now 16 years of age.
I am satisfied that shortly after birth, and because of the mother’s unavailability and erratic behaviour, X began living with the father, which she had continued to do until late 2021 – a period of some 14 years. I deal with the mother’s criminal history later in these Reasons, but that history is most clearly identified in Exhibit 3.
In 2014, the mother commenced a relationship with a Mr B, who was born in 1987. They cohabitated for a short period, during which it seems that the child Y was conceived. Mr B was incarcerated, not for the first or last time, in 2014. The mother and Mr B say they formally separated in 2015, two months before the birth of Y. Y is now eight years of age. Shortly after Y’s birth, the mother was incarcerated.
As I say, even before the birth of X, the mother had an extensive criminal history, at least from 1996 when, at the age of 17, she was charged with a drug-related offence but discharged with no conviction recorded. Exhibit 3 reveals a criminal history continuing between 1996 to and including 2019 involving:
(a)a number of drug offences;
(b)probation on fraud offences in 2001;
(c)suspended sentences in 2004 and 2005;
(d)periods of incarceration in 2007 and 2008;
(e)incarceration from late 2009 for a multitude of offences (the father described it as a “crime spree in [City F]”) from which she was released on parole in 2010;
(f)further incarceration for offences, where there was a period of imprisonment and release on parole from 2011, which was extended because of other offences until the following month in 2011; and
(g)the mother was convicted in 2013 for a number of offences, including “serious assault”, and sentenced to a period of imprisonment commencing 2013 with a parole release date of mid-2014.
As a result, the circumstances that arose after Y’s birth in 2015 were shaped by the mother’s past history to some degree, and the arrangements are confusing. The mother says in 2015 she turned herself in to police as a result of an outstanding warrant against her issued in late 2014. She admits to this imprisonment until late 2015, although Exhibit 3 is unclear in that respect. The mother says she left Y with a Ms G. No evidence from Ms G is provided by either party. The father says Y came into his care and he was already caring for X at this time. I accept the father’s evidence. After the mother’s release from incarceration in 2015 she says she engaged in counselling, drug and alcohol programs, obtained employment and secured rental accommodation.
As her criminal history reveals however, this did not cause her to act without criminal behaviour after these alleged programs and the like. I am satisfied, accepting the father’s evidence, that he facilitated the children spending time with their mother but that they continued to live primarily with him, including during a period of reconciliation in Town H from late 2016 and then in the mother’s home for a time at Town J. It is impossible to be satisfied as to when this reconciled relationship came to an end, on the evidence before me. However by possibly April 2018 Y began living with the father and X against the mother’s wishes, which caused her to commence proceedings for a recovery order in June 2018.
After those proceedings were commenced there were many Court events, however the major events that were the subject of court orders included the following:
(a)On 18 September 2018, Judge Coates made an order that the children live with the father and there be no time with the mother. By some time in 2019 paternity testing had been conducted which established that Y was not the biological child of the father, but of Mr B. Nonetheless, in all respects I find that Y regards the father as his psychological father, as Mr B has not had an active role in the child’s life;
(b)On 12 August 2019, Judge Jarrett (as he then was) made Orders for Y to have supervised time with the mother and made further Orders for urine analysis to ascertain the level of intake of illicit substances by both parties;
(c)Although Judge Jarrett on 17 January 2021 ordered that there be three s 65L visits overseen by a Family Consultant, there is no evidence that the mother attended all of those visits. When the matter returned to Judge Jarrett on 4 December 2020, his Honour made Orders for the mother to spend supervised time at K Contact Centre;
(d)The Court has the benefit of the notes from the K Contact Centre (see Exhibit 5) and some aspects of those visits are referred to later in these Reasons;
(e)Because of an issue that apparently arose in late 2020 (early 2021), on 26 February 2021 Judge Jarrett was persuaded to make an injunction restraining the mother from attending the children’s school;
(f)On 15 July 2021, family report writer Ms E interviewed the family and produced a report dated 2 August 2021. After that report, a consent Order was made by a judicial registrar on 18 November 2021 in relation to the mother’s time with the children which were in all respects subject to continual drug testing;
(g)Shortly after those Orders, in late 2021 the mother retained X in her care. The father construed this as the mother taking the child from him. Simultaneously with the child coming into her care, the mother made an application for, and the police secured, a temporary family violence order under the Domestic and Family Violence Protection Act 2012 (Qld). Later in these Reasons I consider the result of a final hearing of that application in mid-2022 where the mother’s application was dismissed. At the time of the hearing before me no family violence order exists between the parties;
(h)On 13 December 2021, Ms E was asked to prepare a second report, specifically in relation to the child X to give some context to the change in residence that occurred in late 2021;
(i)the matter proceeded to trial before Judge Firth and during the course of that trial, for Reasons published by her Honour, which I have read but do incorporate in these Reasons, Judge Firth made very detailed Orders in relation to the children, in particular a change of residence. Those Orders are reproduced as Appendix B to these Reasons. A significant aspect of those Orders is that there was no prescribed time for the children to spend with the father. This was a significant change for particularly Y but was seen as appropriate by her Honour for the reasons she carefully gave at the time of the orders. It was intended the matter return to her for a further hearing and during that period other events occurred including an attendance by X with mental health authorities when she had been self-harming in mid-2022 and the family violence trial in mid-2022;
(j)As a result of Orders made and facilitation by the then Independent Children’s Lawyer, a third family report was prepared by Ms E from interviews on 4 August 2022, and dated 11 September 2022. For reasons, I assume given orally, on or about 20 September 2022 her Honour Judge Firth was asked to recuse herself from hearing the matter, which she decided to do. The proceedings were then transferred to Division 1; and
(k)The matter came before me quickly on 2 November 2022 and the matter was listed for trial to commence on 13 March 2023 for three days, which it did.

I intend to consider the evidence and discuss the competing proposals within the matrix of the relevant primary and additional considerations prescribed by the Act, but before doing so, I regard it as helpful to deal specifically with the only expert evidence the Court received, being that from experienced social worker Ms E.
Family reports
The ICL relied upon three family reports prepared by Ms E, filed by way of an attachment to her affidavits on 12 August 2021; 10 January 2022 and 15 September 2022. Ms E was the final witness cross-examined – with the Bench, as the transcript reveals, asking a number of questions of Ms E. By way of context for her cross-examination, her reports opined inter alia that:
(a)the first report was founded on interviews conducted on 15 July 2021. In those interviews the mother confirmed she had given birth to six children including Ms Castello, before giving birth to X and subsequently Y. All these children (save for X and Y) had been substantially raised in care. Ms E evaluated the mother as:
126.[Ms Partington] experienced a compromised childhood. She was in and out of Care for much of the time until, as a teenager, she rejected “the system” and led a transient lifestyle mixing with marginal people…
127.Her life has been chaotic and she has been prone to impulsive behaviour, lurching from one crisis to another.
(b)at the time of these interviews Ms E observed the mother claimed she had been drug free for the past eight months. Ms E observed correctly on the evidence the father has had four biological children and has taken on a fathering role for a further three children including Y. The reports’ focus seemed to be on whether the children’s time with the mother should progress to unsupervised time – with Ms E recommending at that stage that supervision continue for another three months;
(c)the second report arose from a request by the ICL to interview X to shed some light on the reasons for her leaving her father’s care and the possible implications this might have for Y. At the time of those interviews X was living temporarily with the maternal grandmother. Her father’s expressed view was that the mother “had planned the child’s exodus”. The comments made by X, who was the only child interviewed for this report, were starkly different from those recorded in the first family report, causing Ms E to provide the following evaluation:
34.[X] has made a complete about-turn. Dad was the best Dad ever; and Mum was a bad person. Now Dad flogs her and yells at her constantly and Mum is the best mother ever.
35.[X] is a very troubled lass. She has had behavioural issues at two High Schools now. She is failing academically.
36.She has been self-harming extensively. It is alarming that seemingly no-one has picked up on this and sought help for her.
37.Her language is rough and her depiction of her father’s language is equally rough. [X] uses the word “flogged”, as a turn of phrase rather than in a literal sense. That said, I have formed the impression that emotional nurture in the home is absent expect perhaps for what the siblings can give to one another.
38.Her decision to live with the mother was impulse-driven. She had no idea what it would be like except for the things [Y] reported from his limited contact with her. Perhaps the idea of a new phone did hold some attraction. It speaks loudly about how impoverished [Mr Magra]/daughter relationship was however if it merely took the promise of a new phone for her to forsake the only “stability” she had.
39.As noted in my earlier Report, [X] is old enough to have a voice in where she lives. We can only follow her wishes and hope that [Ms Partington] can access help for her.
40.Her comments reveal more of what is happening in [Mr Magra’s] household. I am inclined to accept her comment that their father coached them how to behave and what to say during the original assessment.
41.I cannot speak to [Y’s] current circumstances beyond this however.
(d)with instructions from the same ICL, Ms E again prepared a family report arising from interviews beginning on 4 August 2022 and with extensive interviews and observations on 1 September 2022. Ms E was unable to observe the mother with the children for this report because the mother was ill. Ms E spoke to Y’s biological father, Mr B, who was being held on remand for charges, and his continued incarceration restricted his capacity to be involved in the hearing. At the commencement of the trial before me with the consent of all parties, Mr B was given leave to withdraw from the proceedings (having the benefit of a solicitor, Mr Bertram, appearing on the first day to make such an application). Sadly, Mr B’s continual criminal behaviour has meant he has spent little time with Y since he was a baby. Although Ms E again captured the children’s wishes, and noting the report was prepared after the interim change of residence court‑ordered in April 2022, Ms E’s ultimate evaluation commenced with the opinion that:
176.This family is in chaos. All of the parents and both children have significant personality vulnerabilities. I’m doubtful whether Court Orders can restore/facilitate equilibrium.
177.It has been difficult to formulate a useful assessment. None of the adults are strong in providing a history of events and concerns. They have all learned to distrust Authorities, and some answers are likely to have been sifted through don’t-need-to-know filters first. Other information is likely to have been fabricated, and the ability to untangle fact from fiction is outside my expertise.
Before concluding her report with the following opinions:
206.It is my view that she [X] should remain with [Ms Partington] if for no other reason than her current schooling.
207.I am unable to make a recommendation about whether she should see her father on a regular basis. At any rate I anticipate that this decision will be outside the Court’s purview sooner or later. She is 15 years old and, despite her immaturity, it would not be possible anyway to prevent her from seeking contact with him.
208.I am unable to make a recommendation about [Y’s] care arrangements.
209.It is my view that [Ms Partington] does not have the parenting ability to take on his care. It would be the third major disruption in the past year.
210.I have no difficulty at present in her having weekend contact with him upon condition that the Court is confident she has cut herself off from drugs and the drug community.
211.[Y] appears to be setting in [Ms Castello’s] care and her attitude and approach are encouraging.
212.He [Y] misses his Dad enormously however. Much will therefore depend upon the Court’s findings in relation to the history of him meeting the children’s needs beyond providing food and shelter.
213.[Mr B] would like to speak to [Y] more often than once a week. He would like photographs of him. His requests are modest. I am guarded about making a recommendation however since I know very little about his background and I have only conducted a phone interview.
214.If the Court is minded to progress their relationship, it is my view that he could only have supervised contact after his release until more data could be gained about his commitment and rehabilitation.
The cross-examination of Ms E by Counsel for the mother was directed to seeking to extract an opinion from Ms E that the compromised behaviour now exhibited by X (who had historically clearly been cared for by the father), was a poor predictor for the outcomes for Y. Ms E expressed the view that there is a probability that Y could be exposed to the same parenting style of the father with similar outcomes. Mr Gunn asked Ms E about the level of insight the mother exhibits into the future parenting of the children. Ms E opined that although the mother “is trying very hard”, she did not believe the mother had “good insight”.
Counsel for Ms Castello referred Ms E to paragraph 198 of her third report, which stated:
198.[Ms Castello] is only 25 years old. She was raised in Care for virtually the whole of her childhood. She has no prior personal parenting experience. That said, she has stepped up to the responsibility of raising [Y]. She has tolerated periods when his behaviour has been extremely challenging. She appears to have set firm, consistent boundaries and she has worked closely with his school.
When asked what were the matters that she had discussed with Ms Castello, particularly in relation to her management of Y’s behaviour that led to her forming a view expressed in paragraph 198, Ms E, during cross-examination said:
I can’t remember exactly, but we talked about how she dealt with his oppositionalism. We talked about setting boundaries and dealing with outbursts. I thought that she was – she was holding it all together as well – as well as could be hoped for, then, yes, just from her presentation. Admirally, my exposure to her – admittedly, my exposure to her has been quite limited, but what I saw, I was impressed by.
The father, as a result of Order 53 made by Judge Firth, was unable to personally cross-examine the mother or Ms Castelo. However, he took the opportunity to cross-examine Ms E, during which exercise the following further opinions were expressed of relevance, namely:
(a)Although her impression was that the father may have coached the children in her prior interviews, she accepted that is very hard to determine. X, by the time of the second report, told Ms E the father had coached her to make the comments set out at paragraph 107 of the first report – which were extremely negative of the mother;
(b)The children are “chaotic” and they will say whatever seems right to them at the moment; and
(c)After Ms E had been given some further information by the ICL before giving evidence, the father was persistent in seeking to establish Ms E may not have had the complete picture of X’s current situation and past medical treatment. The father was clearly concerned to try and get Ms E to not connect her view of him as a parent and recent self-harming attempts by X. His questioning did not elicit an opinion that Ms E connected to the current mental health issue for X only with the father’s past care.
Under questioning from the Bench, Ms E expressed some further opinions of relevance as follows:
(a)Y’s recent express wishes to live with the father and that he was missing him were made in front of Ms Castello and should be regarded as, therefore, genuine, in her view;
(b)If Y is saying something different now, the Court should be cautious in accepting that change of view because he is likely to know Ms Castello does not like the father, and Ms Castello supports Y having an increasing relationship with the mother against the father’s wishes;
(c)The Court should be very cautious about accepting what X has said from time to time because of the conflict, the history and her ability to move from one side to the other;
(d)From the father’s perspective, having been, he says, the primary carer of Y for most of his life, where an Order was made in April 2022 to change interim residence and where no time with the father was ordered, it is not unreasonable for the father to react in a highly emotional and hurt way. I agree with this opinion;
(e)When asked how much weight Ms E had given to the generally unchallenged care of Y by the father since birth, she said, inter alia:
It would be fair to say that I didn’t give a great deal to that. I think that I was influenced by my understanding that, right or wrongly – about problems to do with [Y] not attending school.
And:
I was also strongly influenced by the situation that [X] was in emotionally, and that since she had been in the care of her father for all of that time, that reflected, to a large extent, the reasons why she was in the mess that she was in.
(f)Ms E agreed it would be a concern based on her assessment of the mother’s parenting capacity, if it was likely that there would be a transfer of primary care from Ms Castello to the mother because, in Ms E’s view, the mother’s home would not provide stability. It was difficult to assess when the mother could ever be in that position on the current data available to her;
(g)When pressed to assist the Court about the clear options for Y to live either with Ms Castello or with the father, Ms E frankly replied, “I think it’s your task”;
(h)In respect of orders for X, Ms E opined that whatever orders are made:
It’s not going to change too much of what happens because of her age, and because she can and will choose for herself. So I’m thinking that, somehow, I have a feeling that it is better to make – for her to know where the Court said they wanted her to live, even if, as we know, she might not follow through on that.
(i)It would be helpful for someone to explain the orders to the children because of the history of conflict;
(j)Ms E was not aware that the father, by Court Orders (see Exhibit 15), was the primary carer of the 11 year old daughter named M (who has been a member of the father’s household for some years). When this was made known to Ms E, in a particularly frank response, she said:
Your Honour, I think that I should fall on my sword there and say that when you raise that, that leads me to say that should have been something that I explored further and understood more about that child and how she was functioning, for instance, at school and the like… And I didn’t.
None of the Counsel, having given an opportunity to do so, sought to further question Ms E after my questioning.
Mr Hackett properly made the comment, in fairness to Ms E, that there was no reference to M in the affidavit material to which she was directed, and she was not taken to family report interviews.
Mr Magra’s response from the Bar Table was that M had been living with him for two years, and that he had taken her to the family report interviews, but that she was not interviewed.
I do remind myself that the father has been unrepresented for some time, and is not skilled in necessarily knowing what affidavit material is required by the Court. This exchange occurred at around 5.55pm on the last day of the trial, and at the conclusion of Ms E’s evidence. It was not explored further between the Bench and Counsel retained by the parties. The Court is not bound by the opinions of a Court Child Expert (see Hall & Hall (1979) FLC 90-713), and in this case the weight of some of the opinions expressed is diminished.
However, in the balance of these Reasons, in respect of some of the opinions of Ms E in this difficult parenting case which I accept, they are referred to appropriately.
PRIMARY CONSIDERATIONS
The Court is required to consider the benefit to the child of having a meaningful relationship with his parents. In that regard, by definition the father is not a “parent” of Y, and Ms Castello is not a “parent” of either child. The mother is a person who fits within the definition of a parent at s 60CC(2)(a), and I find that if it is sustainable, Y and X will benefit from having a meaningful relationship with her.
I am required to give greater weight to s 60CC(2)(b) being the risk to the child and exposure to risks. Although in the final submissions as set out earlier neither party sought an order for supervised time, that does not mean that risks do not currently exist.
In my view, the risks include:
(a)the continual and unrelenting conflict, negative comment, denigrating behaviour, and absolute mistrust that exists between the father and the mother, and to a lesser degree Ms Castello, who has been brought into this issue only from April 2022. There is very little that saves the children from this negative environment in either home. I cannot be satisfied that at all times either the mother or the father can retain and disguise their true feelings about the other parent;
(b)It is clear to me that as this litigation has continued, the children have been more involved in the proceedings than they ought to have been. It involves being aware of the conflict between the parties and their positions, and being invited to provide evidence or information to the other parent. This is emotionally damaging for both children;
(c)The mother asserts that the father has physically abused the children. I do not accept on the evidence that the father “flogged” the children if that was meant to be more than physical discipline. I accept that during the visits at K Contact Centre, the mother observed and brought to the attention of authorities various bruising on Y. The father denies they were anything other than the sorts of bruising an active child would have, including being hit with a Nerf gun fired by the father during play. I am not satisfied on all the evidence that the father has abused the children, Y in particular, in the way asserted by the mother;
(d)I accept the evidence of Ms E which was consistent with my observations of the mother in the witness box, that the mother lacks insight and has had a history of poor parenting. The mother is keen to play a primary carer role, when she has not done so in the past with any of her children. She is, as a result, in my view, in the absence of some clear psychological support – evidence of which was not provided to the Court of a convincing nature – highly vulnerable to relapsing into past behaviour;
(e)In respect of drug use, both parties have had a history of using drugs. The request for drug testing (a schedule of which is contained and tendered in a summary form at Exhibit 13), reveals that generally speaking, the parties have had negative testing for some time. There was an example of the father testing positively to cannabis. He admitted to using cannabis on one occasion, he says after surgery. I accept his evidence. On the current evidence, I am not satisfied that the parties are using drugs at the moment. Both Ms Castello and Mr D, her partner, have had more recent convictions for drug use than either of the parents. On the evidence, I cannot assess whether their denials of drug use is correct; and
(f)A risk to the child’s – particularly Y – emotional development is school attendances, which I will deal with later in these Reasons.
ADDITIONAL CONSIDERATIONS
I deal with the relevant s 60CC(3) factors in a narrated style.
As to the children’s wishes, the Court must be cautious about what these children say, looking at the context in which they say it and to whom they say it. X’s presentation shows fluctuating expressions of desire and wishes from totally supportive of the father to being highly negative of the father. In my view, that needs to be seen within the context of the absence of the mother in her life for most of her life until late 2021. The recordings, which I have heard, of X engaging with the father in or about January 2022, reflect an easy capacity to talk and a clear expression by the child of her love for her father. Concerns exist, of course, for the child’s emotional presentation. While she had also some very significant challenges in attending school, it seems, in the mother’s care at this stage, a different form of school arrangement has been negotiated with her school, which may lead the child into an employment in the hospitality industry rather than requiring any formal schooling to be completed.
I am satisfied that Y has consistently expressed a desire to live with his father, and I am very cautious about any recent changes of views because of the lack of contact with the father and the likely influence of the mother and, to a lesser degree, Ms Castello. The fact that he has expressed a wish to live with the father is hardly surprising when that was, until April 2022 when the Orders of the Court were made, what he has known. His household with the father included his older brothers, M, and with the father as the continuing primary carer. I do not accept that his recent change of expressed views to Ms Castello and/or the mother reflect a genuine change of wish. In my view, I should give some weight – and do give weight, although not determinative – of the child’s desire to return to the care of his father.
Relationships

Up until the change in April 2022 by the Court Order, Y, I am satisfied, had strong relationships with his father and his siblings and other persons in the father’s household, including M, who is aged 11 years of age. It is difficult to now assess the relationship Y has with his father where there has been no contact at all for some 14 months. I understand that Ms Castello has sought some therapeutic assistance for Y but no evidence of the effect of that counselling was provided to the Court in a probative form. I have no doubt that the mother’s relationship with Y has had a chance to improve since she has been spending more time with him. She is desirous of having a long-term relationship with him – in fact, it is my view that she still wishes Y to live with her.
Ms Castello’s involvement with both X and Y was limited up until the events of April 2022. Y now seems to be comfortable in Ms Castello’s care. She obviously devotes herself to making him feel comfortable and trying to help him. She, herself, has had a troubled upbringing, being in care from infancy until she was 18 years of age. Her own experience no doubt shapes her desire to do better for her brother. Mr D says he has developed a good relationship with Y and that they do things together of a male-orientated nature, including outside activities. I accept Mr D is doing his best to support Ms Castello in her parenting of Y.
X lived with Ms Castello for between four to six weeks, and it did not work out well. X now is very negative about Ms Castello, and although she is living primarily in the mother’s care, she is very much at a stage of her life where she will make her own choices and decide to live wherever she wishes to live. It is very difficult on the evidence to assess the relationship between Y and M, and this was in part for the reasons already given assessed by Ms E. M, however, is a child of similar age to Y (there is three years difference) and having been a member of the household that Y lived in, it seems, in my assessment, that it is likely they enjoyed a normal sibship type relationship, one which might endure into the future in a different way than the relationships with his much older biological siblings (other than X).
In respect of the extent to which each of the children’s parents have taken the opportunity to participate and spend time with the children, it is a strange feature of this case that proceedings were not commenced in respect of these children until 2018. The mother moved in and out of the children’s lives since their birth. The involvement of the mother, in particular, with the children and more recently Ms Castello, has been by Court Orders. The father has, to a large degree, been entirely in control and has made all the decisions as necessary for X and Y in the past.
There is no evidence to suggest that the mother has, at any time, met her obligations financially to assist in the maintenance of the children whilst in the father’s care, save for payment of very modest child support, but it seems to me for much of this time when she was not incarcerated, she either had no income or limited income.
I will deal later in these Reasons with the likely effect of changes to the child’s circumstances (s 60CC(3)(d)). There are no real practical difficulties or expenses in the children spending time with the other parent if they all live within the broader Region L.
CAPACITY TO PARENT
In respect of the capacity to provide for the needs of the child, including emotional and intellectual needs, I make the finding that I am not satisfied the mother has the consistent capacity to provide for the needs of Y or, frankly, for X. I am satisfied the father has the capacity and has demonstrated that capacity over many years.
The mother raised issues about the father’s capacity to facilitate and encourage and ensure that he can get the children to attend school. She points to what she says is her recent successes with X at a new school environment. I give credit to the mother in her focus on this aspect, but think it is more likely that X has now decided, as she is older, that not obtaining any skills for employment will have an adverse effect on her future.
Even in Ms Castello’s care, getting Y to go to school – or the school being able to support him full-time – has been a constant issue. Whilst I accept Y’s “unexplained” absences from school when in the father’s care are concerning, without more context I am not persuaded his absences are not at times Covid-19 restrictions related, or just an attempt at times to allow Y time out of school as a form of “mental health day”.
Importantly, if the child does return to the father’s care, Y will return to N School, where he has previously attended. Although the parties could have offered evidence from past, current or future teachers/principals for Y, I am prepared to accept that if Education Queensland has assessed Y as requiring special support (as is currently occurring according to Ms Castello), then it is likely similar support can be provided for Y as N School. Although Ms Castello was thrust into a full-time parenting role in April 2022 has, on the evidence, met the needs of Y since then.
I hold some reservations about her capacity (not willingness) she has at her age to maintain that role into the future. I regard it as more likely than not that she will need to rely more heavily upon her mother. She now seems happy to do so. Their closeness in the Court during the trial was observed and remarked upon by the Bench.
Ms Castello is not currently working and although caring for her sibling in the way that she has deserves her obtaining much credit, which I give her, it is an impost on a young and inexperienced carer. I find that she will find it very challenging to manage Y as he gets older and continues, as I believe he will, to express a desire to live with his father, his brothers and M.
In respect of the capacity to provide for the needs of X by any party, she is, in all respects, an enormous challenge. The father has not been entirely able to meet her needs since she became a more rebellious teenager. The mother is doing her best, and is seeking to support what she wants to do. Ms Castello tried, but was unable to connect with X. I consider that the orders that need to be made, if any, for X are ones which are likely to provide some current stability because, as Ms E opined, and I agree, very much, X is in control of her own life and things could change quickly and unexpectedly.
ATTITUDE TO PARENTING
The father’s commitment and attitude to parenting is significantly superior to that of the mother, in my assessment, despite the criticism launched against him. I find his history of care – although not in any way perfect – that for a number of children, without any involvement by the Department (who have had him on their radar, it seems since he was six years of age) speak volumes. When X was seemingly committed to a young boyfriend called P, the father was cautious in his support – even speaking to P’s place of work, where he was undertaking an apprenticeship, and telling them he regarded the boy as a “good kid”. Whatever the causes of the breakdown of X’s relationship with P were, the father seemed to have acted protectively even though it seems X regarded him as “interfering”. I do not underestimate the challenges a parent would face when a child like X seeks to explore relationships including sexual interaction. I am satisfied any actions taken by the father, perhaps not appreciated by X (and certainly the mother), were formed on his unconditional love for his daughter.
Ms Castello has, despite her own compromised parenting – having been, as I say, in care from infancy to age 18 – has demonstrated in the short time available a real commitment to Y’s care. She has not engaged in employment, so as to dedicate herself to Y, including almost daily engagement to his school where, even recently, some difficulties have occurred.
She continues to develop a relatively new relationship with Mr D. It is unclear what her desires as a 26 year old woman for her own family, study or employment are, as her life significantly changed in April 2022 when the Court ordered that Y live with her – a role she accepted at least on an interim basis. One can only admire and be impressed by her sacrifices to date in caring for Y. At eight years of age, the future challenges to the management of his behaviour are likely to become more intense. It is, I find, inevitable that Ms Castello will seek more support from her mother (whatever the orders say) and whilst the mother would, on her evidence, wish to be more involved and hopefully become, in time, the primary carer for Y, I have limited confidence from the mother’s chaotic parenting history and issues referred to earlier in these Reasons, that such a default position is in Y’s best interests.
Family violence
The father being in a relationship of any sort with the mother would have been challenging. Her impulsive and erratic history, shaped by, I find, her addiction to illicit substances, which, more likely than not, caused her to get involved with the wrong people and to engage in consistent criminal activity, is a factor of concern for any future co-parenting relationship. I found the mother an unimpressive witness. She was keen to say she had changed and that she should be sympathetically assessed because of her own compromised parenting. She is 44 years old and needs to take responsibility for her adult conduct. In my view, the failure to provide evidence of any therapeutic support of a focused nature that could found any confidence that relapse into old behaviour was unlikely, was a glaring deficiency in the mother’s case.
I accept the evidence of Ms E that the mother, “even now, has little insight”. That of her all of her children, only X and Y have not been placed in care, speaks powerfully about the mother’s history of care and inability to care (if not unavailability) and in my assessment, the history speaks positively about the father’s care of the children. I find the father has at times in the past been a strong disciplinarian and utilised physical force in disciplining the children. That cannot be supported. I am not satisfied however, he was otherwise abusive to them although, I accept he would on occasions use strong and inappropriate language. He continues to have the support of his older sons, many of whom remain living with him.
The mother, in her affidavit, identifies a number of events where she says the father was abusive of her. The transcript will reveal that these were all quite properly put to him by Mr Gunn on behalf of the mother. But for one occasion where the father conceded he had physically assaulted the mother some years ago, the father denied the allegations. The fact that the children might, it seems adopting a narrative of the mother, particularly X, adopt some of the mother’s comments, does not persuade me that they all occurred.
In fact, I was not persuaded by the mother’s evidence of those other events, although I accept the relationship was volatile and some events in some way probably occurred between these parents. The evidence, without any real corroboration, does not support a finding of the level of abuse asserted against the father, save as I say, for the one occasion which he accepted. I am sure that interacting with the mother at times where I find she came in and out of the children’s lives for years, would have been very challenging for the father as a primary carer and trying to keep some stability in their care.
Considering the long period of separation, the more recent application by the mother for a temporary protection order in late 2021 requires some specific analysis. The father had, he says in the best interests of X, allowed the mother to become aware of how to contact her. I accept X, then aged 14 years, probably craved a relationship with her mother. The mother had frankly been “unavailable” for most of the child’s life.
There is no explanation, for example, why the mother during many of those years did not bring applications for X to live with her or spend time with her, but she did not. After X came into the mother’s care in late 2021, the mother, I find somewhat opportunistically and with the support of police, obtained a temporary domestic violence order, naming X as an aggrieved. The effect of that order was to cause a significant severance in X’s relationship with the father.
I have listened to the recorded telephone calls – some briefly between X and Mr Q and some more lengthy ones between X and the father around this change. X continued talking with the father even when, obviously, the father was being very negative about the mother and trying to gather evidence about what was happening in the mother’s home (for example meals, supervision, people attending presumably to buy drugs off the mother, the mother’s drug and alcohol use, etc.). My impression is from those conversations that the child was becoming increasingly uncomfortable being put in the position of being a “reporter” to the father on the mother’s household. She gradually began to defend the mother but always ended the conversation telling the father she “loved him”. It was an intolerable situation for the child to find herself in and in my view, significantly contributed to the mental health events that quickly followed and which probably, as a protective measure, lead to comments supportive of the mother and denigrating of the father to both Ms E and authorities, including Department officers, to be made by the child. As the history reveals and the evidence of Ms E identifies, before this change the child was saying something quite different. I find that it is likely the child has aligned herself with the mother now as against the father as a way of trying to get some peace in her life.
The temporary domestic violence order application came to a final hearing before an experienced Magistrate in mid-2022. Exhibits 1 and 2 represent the best evidence available, despite attempts by the parties to secure any reasons for judgment of the dismissal of the mother’s application. Exhibit 2 is the amended “verdict and judgment record” which issued in March 2023 (during the trial before me) which revealed that the application of the mother was refused because “section 37(1)(b) not established”. Section 37(1)(b) of the Domestic and Family Violence Act 2012 (Qld) describes a factor which must be established to secure an order, namely that “the respondent has committed domestic violence against the aggrieved”. I rely upon this finding by the learned Magistrate which supports the evidence of the father that the case was thrown out.
The mother, in my view, is unable to rely upon the temporary domestic violence order to establish that the father was domestically violent towards her. I am satisfied there have been conflicts between the parents as the children’s transition between parties has caused tensions to increase.
The Court is required to consider making an order that is least likely to lead to the institution of further proceedings. That is a real challenge in this case. I have grappled with the concerns about making orders for X, as opposed to not making orders for X. Ultimately, I have come to the view, as indicated and supported by Ms E, that it would be better for X to know what orders are made by the Court.
I have no confidence that X will continue to live, by her choice, with the mother. She may well wish to return to the father’s care. However, it is more important that these parents help her find her own pathway with a vocational focus on employment, such as hospitality that is her desire, rather than fight over who looks after her at this stage.
In respect of Y, the orders that I propose to make are not likely to be met with great enthusiasm by the mother and/or Ms Castello. However, as I will explain, I believe the Orders that I am making are in the best interests of Y at this time and if further proceedings are instituted in the future, at least they will be instituted in the shadow of the findings I have made in this detailed Judgment.
Under section 60CC(3)(m) the Court is invited to consider any other fact or circumstances that the Court thinks is relevant. In my view, and I repeat, it is relevant that I have formed the view that in some ways for an indeterminate time, Ms Castello sees her role as a temporary carer of Y, notwithstanding her evidence to the contrary.
Her affidavit and her applications were all shaped more by the impression that I got that, as her mother continues to influence more of her life, bearing in mind the troubled history of Ms Castello’s own upbringing, she will not be able to resist the mother’s desires and/or encouragement of Y to move into the mother’s care. There was to some degree a tag-team approach being adopted in this case. In saying that, I do not in any way seek to criticise Counsel of the mother and Ms Castello. However, my observations of the mother and Ms Castello in the Court, which I referred during the course of the trial, demonstrates to me that they are not actual adversarial in respect of their position but essentially want the same thing, which from the mother’s point of view, that she ultimately, after many years, desperately, without a child in her care, wishes to care for Y for the rest of his infancy.
PARENTAL RESPONSIBILITY
The conflict between these parties makes the exercise of parental responsibility a difficult conundrum. In my view, parental responsibility should follow where the child lives. For reasons which I will indicate, I will be ordering that X live with the mother. As a result, in my view, the mother should have sole parental responsibility for that child. I appreciate that in so doing this runs counter to many of the criticisms of the mother made in this case, however it is a practical outcome for a child of 16 years which most influences me to make the orders I do. The mother will be required to consult with the father in relation to any major long-term issues for X.
Because it is my view that the child Y should return to live with the father, he should have sole parental responsibility but with an obligation to consult with the mother. Whilst it might have been ideal for both parents to consult with the 26 year old Ms Castello, in my view that is impractical. The fact that Ms Castello has, to her credit, been the primary carer of Y for the last 14 months does not persuade me that her involvement in major long-term decision-making for Y is required in Y’s best interests. The father’s care of Y has been much longer and his capacity to make those future decisions, whilst consulting the mother, is in my view the best position for Y.
ORDERS
For the Reasons I give, the Orders which appear at the commencement of these Reasons for Judgment are in the best interests of X and Y. I make them for those reasons.
Where neither party formulated in any comprehensive way proposals for school holidays, special days and what might be termed the usual sort of “specific issues” orders, I have less than desirable indications from the parties as to their positions.
However, subject to giving the parents a short opportunity to be heard on the form of order, apart from the orders for X (where I adopt the ICL’s proposal) and an order for Y to live with the father and that he have sole parental responsibility, which I now pronounce, the other orders identified will not be made until the parties have a chance to address me at 9.30am on 13 July 2023.
I propose, at least, orders additional to those pronounced today, with these parameters:
(a)Noting that Y will commence living with the father from 12 noon on Thursday 6 July 2023 and that term three in Queensland commences on Monday 10 July 2023, I will order that the time Y spends with either his mother or Ms Castello begin on Friday 28 July 2023 and each alternate weekend thereafter. I have taken into consideration that it would be in Y’s best interests for him to spend a period of time without contact with is mother or Ms Castello (some during school holidays and three weeks of the new school term), to settle back into living with his father after no contact for over 14 months;
(b)As alternate proposals during the hearing, in the event the child was ordered to live with the father, the mother submitted the child should spend every third weekend with her, and Ms Castello submitted the child should spend a weekend once a month with her. I take the view, because of the improved relationship between the mother and her daughter Ms Castello, that Y spending time each alternate weekend commencing Friday 28 July out of his primary residence will be in his best interests, and be a structure more likely to be sustained. To make it clear, it is not the Court’s intention to limit Y’s time with the mother by defining the time he spends with Ms Castello (or vice versa), where I am satisfied that the mother, Ms Castello and X will be able to discuss and make arrangements as to how Y connects with all three in some meaningful way each alternate weekend. Accordingly, subject to further submissions, I propose to order the child Y spend each alternate weekend with the mother, but that during those periods the mother shall encourage and facilitate Y spending time with his sister X and Ms Castello as can be arranged. I am prepared to consider an alternate order defining Ms Castello’s time with Y – noting on the evidence that the relationship between Ms Castello and X, at this time, many create stressors on Y if he is exposed to their conflict;
(c)It is in Y’s best interests that he spend each alternate weekend in his home with the father. As he gets older and his peer relationships develop – probably as an extension of his school interactions – the capacity to engage with those peers and in the general community where he lives will be important. This will also become more obvious if he engages in extra-curricular activities such as sport, on weekends. Weekend contact time should commence from after school or 3.00pm (if not a school day) to 5.00pm Sunday;
(d)The school holidays should be shared equally between the father and the mother, with the mother to encourage and facilitate time during school holidays in her care, with X and Ms Castello;
(e)Father’s Day should be spent with the father, and Mother’s Day with the mother;
(f)Y’s birthday each year is unlikely to ever fall during school holidays but will fall on a school day or a weekend. The difficulty in shaping orders with the conflict that exists with these parents, to allow Y to have an opportunity to spend time with both parents around his birthday, are too problematic. He has, it seems, not spent time with his father (or extended paternal family) for his birthday in 2022 and 2023. Unless otherwise persuaded, Y’s birthday should occur and he spend time with the parent he is with in that year, on that day;
(g)I would “carve out” of any Christmas holiday periods the period from 5.00pm Christmas Eve 24 December until 9.00am Boxing Day 26 December. In 2023, that period will be spent with the father (noting the child spent no time with him in Christmas 2022) and odd numbered years thereafter, with the that period spent with the mother in 2024 and even numbered years thereafter;
(h)Changeovers are to take place at school on a Friday for weekend visits and for the Sunday and holiday changeovers, they can take place at a location approximately equal distance between the father’s home and the mother’s home, provided it is a public location such as McDonald’s restaurant;
(i)I am prepared to make an order that the mother can communicate by telephone with Y each Wednesday and non-contact Sunday at 6.00pm for no longer than 30 minutes. Of course, if Y wishes to initiate a call to the mother, Ms Castello or X outside of this specified time, he should be permitted to do so; and
(j)A “standard set” of orders relating to non-denigration; no parental use or exposure of the child to drug use in the parents’ care; sharing of mobile and/or email addresses (or use of a parenting app for communication) would be sensible.

Having set out the parameters, I invite the ICL to prepare a draft order to the parties, which I will consider at 9.30am on 17 July 2023, when the matter will return to my list.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated: 3 July 2023
APPENDIX ONE
Previous orders and plans
1.That all previous orders and parenting plans are discharged.
X
Parental responsibility
2.That the mother have sole parental responsibility for the child X born 2007.
Lives with
3.That X live with the mother.
Spends time with
4.That X spend time with Y as agreed between the mother and the aunt.
5.That X spend time with the father as determined by X.
6.That pursuant to Section 68B, the respondent father be restrained from removing X from the primary care of the mother or attending the home of the mother, without the prior written consent of mother.
Y
Parental responsibility
7.That the aunt have sole parental responsibility for the child Y born 2015.
Lives with
8.That Y live with the aunt for at least 24 months from the date of these orders.

Spends time with
9.That Y spend time with the mother at all reasonable times as agreed between the aunt and the mother and at least every third weekend from 5pm Friday to 5pm Sunday with changeover at the aunt’s house.
10.That Y spend time with the father at all reasonable times as agreed between the aunt and the father and at least every third weekend from 5pm Friday to 5pm Sunday with changeover at McDonald’s Suburb R.
11.That pursuant to Section 68B, the father be restrained from removing Y from Y’s school, the care of the aunt or attending the home of the aunt, without the prior written consent of the aunt save to comply with Order 10.
Communicates with
12.Telephone communication to be facilitated by the party with whom Y is not with telephone at all reasonable times Y may request.
Other
13.That the parties shall not be affected by illicit drugs whilst the children are in their care.
14.That the parties shall not consume alcohol to above the legal driving limit 24 hours prior to or during the time the children are in their care.
15.The parties shall not discuss these proceedings with the children.
16.That the parties advise the other of any change of telephone number or email address within 24 hours of such change occurring.
17.That the parties shall not physically discipline the children nor allow any other person to do so.
18.That pursuant to section 121 of the Family Law Act 1975, leave is granted to the mother and the aunt and their legal representatives to provide a copy of these orders to:
a.Any school, education institution or care provider attended by the children;
b.Any treating medical practitioner, psychologist, hospital or other health care professional attended by the children.

APPENDIX TWO
1.All previous Orders and Parenting Plans be discharged.
2.MS CASTELLO born 1997 be granted leave to intervene in these proceedings (“the Third Respondent”).

X
Parental responsibility
3.The Applicant have sole parental responsibility for the major long-term decisions of the child X born 2007.
4.The Applicant will use her best endeavours to ensure that X continues to comply with any recommended mental health treatment plans and engage with all supports as recommended by X’s usual medical treating specialists.

Time and Communication Arrangements
5. X live with the Applicant.
6. X shall spend no time and have no communication with the First Respondent.
7.That X spend time with Y, on weekends or public holidays, at all times she reasonably requests to do so, with the Third Respondent to facilitate such time, provided she considers such time is reasonable, and provided X spends no more than one night per week, in the Third Respondent’s home, and the time does not impact on the time Y is to spend with the Applicant, in accordance with these Orders.

Y
Parental Responsibility
8.The Third Respondent have sole parental responsibility for all major long-tern decisions of the child Y born 2015.
9.The Third Respondent will as soon as reasonably practicable after the date of these orders enrol Y in a school and provide the Independent Children’s Lawyer with the details of the enrolment.
10.For the purposes of Y’s enrolment in school, pursuant to s. 121 of the Family Law Act 1975 the Third Respondent is granted leave to provide a copy of these Orders to the school.
11.The Third Respondent will arrange for Y to attend upon a General Practitioner for the purposes of an assessment of his mental health.
12.The Third Respondent will ensure that Y attends any medical practitioners or mental health practitioners as recommended by the General Practitioner and shall provide the Independent Children’s Lawyer with information as to any referrals, as soon as reasonably practicable.

Time and Communication Arrangements
13.Y shall live with the Third Respondent and for that purpose the Third Respondent shall take Y into her care immediately following these proceedings.
14.Y shall spend time with the Applicant at all times as can be agreed in writing between the Third Respondent and the Applicant and failing agreement each Saturday from 10.00am until 2.00pm with such time to commence on Saturday 21 May 2022.
15.The changeover of Y occur at K Contact Centre unless the Third Respondent identifies a more suitable contact centre for changeovers to occur at, with the Third Respondent to inform the Applicant if there is to be a change by way of SMS.
16.In the event the Third Respondent nominates a change of contact centre for changeover of Y, the Third Respondent and the Applicant are to ensure they complete an intake as soon as reasonably practicable, to allow Y to recommence spending time with the Applicant and any fees associated with the contact centre are to be paid by the Applicant.
17.The Applicant and the Third Respondent be restrained and an injunction hereby issue restraining the Applicant and the Third Respondent from bringing Y or X into contact with the Applicant’s adult child, Mr S.
18.Upon Y recommencing spending time with the Applicant:
(a)The Third Respondent shall facilitate Y speaking with the Applicant on the telephone at all reasonable times as Y may request; and
(b)The Applicant may telephone Y each Wednesday from 5.30pm until 6.00pm and for this purpose the Applicant shall make the call.

19.Y communicate with the Second Respondent by way of telephone each Sunday with the Second Respondent to make the call and the Third respondent to facilitate the call.
20.There be a moratorium of Y’s time and communication with the First Respondent until this matter is next listed before the Court.

Paternity Testing
21.In the event the Third Respondent is able to fund such testing, pursuant to s.69X of the Family Law Act 1975, the Third Respondent do all necessary acts and things to assist in the implementation of these orders including:
(a)attending with Y at such places and at such times as may be necessary for the purpose of carrying out paternity testing procedures pursuant to these orders;
(b)the Second Respondent submitting himself and the Third Respondent causing the child to submit to such medical procedures as may be necessary, including the provision of a bodily sample; and
(c)providing such medical or family history to as may be required or requested by the testing organisation.

22.A report in relation to information obtained as a result of the carrying out of paternity testing procedures be prepared in accordance with reg.21M of the Family Law Regulations 1984 and made available to the Court.
23.The Third Respondent provide the Independent Children’s Lawyer with a copy of the results of this testing within 48 hours of receiving the same.

Drug Testing
24.Within seven (7) days of this Order, the Applicant, First Respondent and Second Respondent and shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)the Applicant, First Respondent and Second Respondent is required to maintain their head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(b)the Applicant, First Respondent and Second Respondent is at liberty to provide AWDTS with a copy of these Orders;
(c)the Applicant, First Respondent and Second Respondent is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Independent Children’s Lawyer, and/or their legal representatives upon receipt of such test results;
(d)the hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(e)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available; and
(f)the cost of the hair drug test is to be met by each respective party undertaking the test.

25.The hair follicle test results are to be provided by the Applicant, First Respondent and Second Respondent to the Independent Children’s Lawyer within 14 days of this Order. If the test results are not provided to the Independent Children’s Lawyer or the Independent Children’s Lawyer receives a test result indicating the Applicant, First Respondent, or Second Respondent ~~or Third Respondent~~ has tested positive to an illicit substance, the Independent Children’s Lawyer is at liberty to apply to have the matter urgently relisted.

Prohibition on alcohol and drugs
26.The Applicant shall not consume any alcohol whilst X is in her care and shall ensure that no other person uses or is affected by alcohol in the presence of X.
27.The Applicant shall not consume alcohol prior to or during communication or when spending time with Y.
28.The Applicant shall ensure that X is not provided with any alcohol or illegal drugs and in the event she becomes aware of this occurring, will immediately remove X from that situation.
29.All parties are restrained from consuming any illicit substances.

Updated Family Report
30.The parties will attend and ensure the child the subject of these proceedings in their care attends, as directed by the Independent Children’s Lawyer, upon Ms E or any other Family Report writer for the purposes of the preparation of an updated Family Report.

Restraints pursuant to S68B of the Family Law Act 1975 (“the Act”)
31.The First Respondent is restrained and an injunction hereby issued restraining him and any of his agents from:
(a)contacting or attempting to contact by any means whatsoever the Third Respondent, the Applicant, Y and/or X;
(b)locating or attempting to locate the Third Respondent, the Applicant, Y and/or X;
(c)identifying or attempting to identify a school in which Y or X may be enrolled; and
(d)attending upon the Court Children’s Service of the Federal Circuit and Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

32.The Applicant is restrained and an injunction hereby issues restraining her and any of her agents, with the exception of in compliance with these Orders or in the event the Third Respondent provides this information to the Applicant, in writing, from:
(a)contacting or attempting to contact by any means whatsoever the Third Respondent and/or Y;
(b)locating or attempting to locate the Third Respondent and/or Y; and
(c)identifying or attempting to identify a school in which Y may be enrolled.

33.In the event the Applicant is provided any information as to the location of Y or the school in which he is enrolled, the Applicant is restrained and an injunction hereby issues restraining her and any of her agents from releasing this information to any third party, including X and the First Respondent.
34.The Applicant is restrained and an injunction hereby issue restraining her and any of her agents from allowing X to attend changeovers of Y or disclosing the location of changeovers to X.
35.The Applicant is restrained and an injunction hereby issues restraining her from allowing any person to attend or reside at her place of residence whilst X is in the home with the exception of professionals or the Department of Children, Youth Justice and Multicultural Affairs.
36.All parties are restrained from discussing the legal proceedings with both X and Y.

Provision of information to the Independent Children’s Lawyer
37.The parties ensure that the Independent Children’s Lawyer is provided with any information as to the education, medical needs of change in living arrangements of the children as soon as practicable.
38.The Applicant is to inform the Independent Children’s Lawyer immediately of the following matters:
(a)any police or Department attendance at her place of residence;
(b)any hospital admissions or self-harm attempts of X; and
(c)if X leave the Applicant’s residence to live elsewhere.

Leave
39.The Independent Children’s Lawyer have liberty to relist the matter upon providing the parties with no less than 24 hours’ notice.
40.Pursuant to s.121 of the Family Law Act 1975 the Independent Children’s Lawyer be granted leave to provide a copy of these Orders to the Department of Children, Youth Justice and Multicultural Affairs.
41.The matter be set down for final hearing for not more than two (2) days commencing at 10.00am on 19 September 2022 in the Federal Circuit and Family Court of Australia (Division 2) at Brisbane.
42.In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”) not having been reduced on the basis of financial hardship, the party responsible for the payment of the fees or any of them, pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
43.With the exception of expert witnesses, the Second and Third Respondents are to file and serve one (1) consolidated affidavit of evidence in chief for each party and witness and a Response by no later than 4.00pm on 5 September 2022.
44.With the exception of expert witnesses, the Applicant and First Respondent are to file and serve one (1) updating affidavit by no later than 4.00pm on 5 September 2022.
45.Each party file and serve on each other party no later than 4.00pm on 12 September 2022, a case outline setting out:
(a)precise minute of the final orders sought;
(b)a list of documents to be relied upon at trial;
(c)a list of witnesses required for cross-examination; and
(d)a list of the issues arising in the application (both factual and legal) by reference to s.60CCof the Family Law Act 1975 and for each issue so identified a reference to the evidence (in each affidavit relied upon by that party) upon which that party intends to rely in respect of that issue.

46.Should the Independent Children’s Lawyer wish to rely on a subpoena tender bundle at trial the tender bundle is to be provided to each of the parties’ legal representatives by 4.00pm on 12 September 2022.
47.A signed minute of consent where there is commonality in the orders being sought be provided by email to …@... by no later than 4.00pm on 16 September 2022.
48.In the event that any party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable but no later than fourteen (14) days prior to the commencement of the hearing.
49.In the event that no such notice is given to the report writer in accordance with the previous order and the report writer is otherwise unavailable, the report authored by that person will be admitted into evidence without cross examination unless the trial judge otherwise orders.
50.Inspection of documents produced in response to any subpoena is required to take place prior to 19 September 2022. Inspection of any subpoenaed documents on the day of the hearing is not permitted.
51.Subject to Order 46, pursuant to r.6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Independent Children’s Lawyer be granted leave to issue further subpoenas in the proceedings.
52.In the event a party or a party’s lawyer has failed to comply with an obligation imposed by these Orders (or any part of these Orders) then on 19 September 2022 the Court may consider:
(a)making a costs order against a non-complying party and/or against their legal representative; and/or
(b)dismissing the Application or Response summarily; and/or
(c)making final orders summarily.

53. Pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:
(a)the Applicant not be permitted to personally cross-examine the First Respondent Second Respondent and/or Third Respondent;
(b)the First Respondent not be permitted to personally cross-examine the Applicant, Second Respondent and/or Third Respondent;
(c)the Second Respondent not be permitted to personally cross-examine the Applicant, First Respondent and/or Third Respondent; and
(d)the Third Respondent not be permitted to personally cross-examine the Applicant, First Respondent and/or Second Respondent.

File number(s):	BRC 6900 of 2018
Judgment of:	BAUMANN J
Date of judgment:	3 July 2023
Catchwords:	FAMILY LAW – PARENTING – Contested residence – Where one child was removed from the father’s primary carer and placed in the care of his adult maternal half-sister – Where the father seeks the child be returned to his care – Where the mother has sporadically engaged in the parenting of the children throughout their lives – Where the mother now seeks a more substantial role in caring for the children – Where the parties agree to follow the wishes of the eldest child in her views as to where she lives – Where the eldest child has suffered serious adolescent mental health challenges – youngest child to return to the father’s primary care
Legislation:	Domestic and Family Violence Protection Act 2012 (Qld) Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited:	Goode & Goode (2006) FLC 93-286 Hall & Hall (1979) FLC 90-173
Division:	Division 1 First Instance
Number of paragraphs:	80
Date of hearing:	13–15 March 2023 and 28 April 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Gunn
Solicitor for the Applicant:	Alexander Law
Solicitor for the First Respondent:	Litigant in person
Counsel for the Second Respondent:	Ms Shepherd
Solicitor for the Second Respondent:	Robyn McKenzie Solicitor
Counsel for the Independent Children’s Lawyer:	Mr Hackett
Solicitor for the Independent Children’s Lawyer:	TLG Law

BRC 6900 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PARTINGTON Applicant
AND:	MR MAGRA First Respondent MS CASTELLO Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	3 July 2023