Reynolds & Reynolds
[2025] FedCFamC2F 85
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reynolds & Reynolds [2025] FedCFamC2F 85
File number(s): ADC 1765 of 2023 Judgment of: JUDGE PARKER Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – PARENTING – unacceptable risk – mutual allegations of family violence – illicit drug abuse – mental health concerns – history of non-compliance with court orders – limited parental insight – conditions to be attached to progression from supervised to unsupervised time Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 68LA, 91B, 102NA, 114AB
Cases cited: A & A [1998] FamCA 25; (1998) FLC ¶92-800
B & B [1993] FamCA 143; (1993) FLC ¶92-357
Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772
Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924
Blinko & Blinko [2015] FamCAFC 146
Cauchi & Cauchi [1993] FamCA 140; (1994) FLC ¶92-447
Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407
Denton & Denton (No 3) [2024] FedCFamC1F 476
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Harridge & Harridge [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092
L & T [1999] FamCA 1699; (1999) FLC ¶92-875
M & M [1988] HCA 68; (1988) 166 CLR 69
Melounis & Melounis (No 4) [2024] FedCFamC1F 778
Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375
N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655
Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303
Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017
Oyama & Oyama [2024] FedCFamC1F 738
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Pickford & Pickford [2024] FedCFamC1A 249
Scott & Scott [1994] FamCA 12; (1994) FLC ¶92-457
Slater & Light [2013] FamCAFC 4
Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329
Division: Division 2 Family Law Number of paragraphs: 210 Date of hearing: 20-24 January 2025 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Stevens Law Counsel for the Respondent: Self Represented Counsel for the Independent Children's Lawyer: Mr Dillon Solicitor for the Independent Children's Lawyer: Shorter Legal Pty Ltd ORDERS
ADC 1765 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR REYNOLDS
Applicant
AND: MS REYNOLDS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
28 JANUARY 2025
UPON NOTING THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.
THE COURT ORDERS THAT:
1.All previous parenting orders with respect to the children X born in 2017 (‘X’) and Y born in 2019 (‘Y’) (collectively ‘the children’) are hereby discharged.
Decision-making responsibility
2.The Father have sole decision-making responsibility with respect to major long-term issues for the children, PROVIDED THAT the Father:
(a)consult the Mother in writing prior to making any major long-term decisions regarding the children or either of them; and
(b)advise the Mother in writing of any decision made by him regarding any major long term issues affecting the children or either of them.
Living arrangements
BY CONSENT
3.The children live with the Father.
Time and communication
BY THE COURT
4.The children spend supervised time with the Mother through the B Children’s Contact Service on the following conditions:
(a)There be no more than one (1) session per fortnight, which is not to exceed two (2) hours in duration;
(b)The visits are to be at the sole expense of the Mother; and
(c)Following the conclusion of twelve (12) supervised visits, the Mother obtain an Observational Report from the Director of the Service at the Mother’s sole expense regarding the supervised time spending with the Mother and provide the Father with a copy of the report within seven (7) days of receipt.
5.That upon the conclusion of the children’s fourth supervised visit with the Mother, the Mother is at liberty to communicate with the children by video call every Wednesday from 5:00pm (or such other time as may be agreed between the parties in writing) with the Mother to initiate the call to the Father via the AppClose co-parenting application and with the Father to facilitate the call with the children for as long as the children are willing to engage in the call.
6.On provision of the report referred to at subparagraph 4(c) above, and PROVIDED THAT the report does not raise any concerns regarding the Mother or observed interactions between the Mother and the children, the children spend time with the Mother each alternate Saturday and Sunday from 10:00pm until 2:00pm (or such other time as may be agreed between the parties), with such time to be supervised by the maternal grandmother or such other supervisor as may be agreed between the parties.
7.Prior to the commencement of the time provided for at order 6 herein, the maternal grandmother or other nominated supervisor provide to the Father a properly executed undertaking witnessed by a Justice of the Peace, solicitor or other qualified witness, setting out:
(a)Their full name, address and mobile telephone number;
(b)That they have read the ‘Should I Supervise’ pamphlet published by the Legal Services Commission of South Australia and understood those obligations;
(c)That they will be present at all times the children spend with the Mother including handover; and
(d)That they will alert the Father immediately, via telephone, in the event that the Mother appears under the influence of any substance or that they otherwise have concerns regarding the Mother’s presentation or behaviour and take immediate steps to return the children to the Father.
8.In the event that the maternal grandmother is to be the nominated supervisor, the Mother forthwith provide to the Independent Children’s Lawyer a contact telephone number for the maternal grandmother and the Independent Children’s Lawyer thereafter explain to the maternal grandmother the obligations of being a supervisor.
BY CONSENT
9.For the purposes of paragraph 6 herein, the supervisor of the children’s time with the Mother must be present at handovers both at the commencement and the conclusion of such time.
10.For the purposes of paragraph 6 herein, in the event that the supervisor is not present at handovers, at the commencement of the Mother’s time, and/or the children are required to be returned to the Father due to concerns about the Mother’s presentation, the children’s time spending period with the Mother will not proceed on that occasion.
BY THE COURT
11.In the event that the parties are unable to agree upon a supervisor for the time the children are to spend with the Mother pursuant to paragraph 6 herein or that the nominated supervisor is unwilling or unable to supervise such time, then the children shall spend with the Mother at C Children’s Contact Service unsupervised onsite playgroup at such times and frequency as may be offered by C Children’s Contact Service PROVIDED such time shall take place no more frequently than on one occasion each alternate week.
12.Upon the Mother’s compliance with paragraph 14 herein, the children spend unsupervised time with the Mother each alternate Saturday and Sunday from 10:00pm until 2:00pm or such other times as may be agreed between the parties in writing.
13.Upon the Mother’s compliance with paragraph 15 herein, the children spend time with the Mother:
(a)From 12:00 pm Saturday until 6:00pm Sunday (or such other times as may be agreed between the parties in writing) each alternate weekend;
(b)For three hours as agreed on each child’s birthday if the children are not already in the Mother’s care and in the absence of agreement from the conclusion of school (or 3.30pm if a non-school day) until 6.30pm;
(c)From 12pm Christmas Eve until 12pm Christmas Day in each odd numbered year (with the children spend time with the Father at those same times in each even numbered year);
(d)From 12pm Christmas Day until 12pm Boxing Day in each even numbered year (with the children spend time with the Father at those same times in each odd numbered year); and
(e)On such further and other dates, at such times and under such conditions as may be agreed between the parties in writing.
Conditions attaching to time
14.The children’s time with the Mother pursuant to paragraph 12 herein be conditional upon the following:
(a)The Mother completing the addiction recovery program offered by D Centre and providing to the Father a report detailing her attendance, engagement and progress; and
(b)The Mother providing to the Father a hair follicle test clear for all illicit substances.
15.The children’s time with the Mother pursuant to paragraph 13 herein be conditional upon the following:
(a)The Mother providing to the Father two hair follicle tests which are negative for all illicit substances, the first being provided not earlier than six (6) months after the provision of the recovery program report pursuant to subparagraph 14(a) above, and the second being provided not earlier than a further six (6) months after provision of the first;
(b)The Mother completing the ‘graduate program’ or such other follow-up program as may be recommended by D Centre following completion of the recovery program; and
(c)The Mother undertaking and providing to the Father a report demonstrating that she has undertaken:
(i)At least four (4) sessions of either trauma focused cognitive behaviour therapy or desensitisation reprocessing as recommended by the therapist engaged by her; and
(ii)At least four (4) sessions of dialectical behaviour therapy with the same therapist or such other therapist as may be recommended by the therapist engaged to provide the therapy provided for at subparagraph (i) above.
16.For the purposes of the therapies referred to in paragraph 15 herein:
(a)The Mother shall provide the treating professional(s) undertaking the therapies with a copy of the report of Dr G dated 26 September 2024 and a copy of this judgment;
(b)The Mother shall continue such therapy for such period, and at such frequency, as is recommended by the treating therapist; and
(c)The Mother shall provide the Father with a report of the treating therapist each six (6) months confirming the Mother has attended at all scheduled appointments, and otherwise remained complaint with the recommendations of the treating therapist.
Other matters
17.The parties each be at liberty to attend all extracurricular, school and sporting events involving the children to which parents are ordinarily invited, PROVIDED THAT:
(a)In the case of the Mother, this liberty shall not apply until such time as she commences to spend time with the children in accordance with paragraph 12 hereof; and
(b)The parties shall each be restrained from approaching the other at such events.
18.The Mother be and is hereby restrained from approaching the children while they are in the care of the Father pursuant to these orders or removing them from his care save as specifically provided for in these orders.
19.In the event of any of the following occurring:
(a)The Mother attending handover without a supervisor on two consecutive occasions when she is scheduled to spend time with the children pursuant to order 6 herein;
(b)The Mother withholding the children from the Father’s care contrary to orders of the Court without the Father’s written consent; or
(c)The Mother, on two consecutive occasions, returning the children to the Father’s care more than 30 minutes late without the written Father’s consent;
the next scheduled period of time between the Mother and the children pursuant to the orders will not proceed.
BY CONSENT
20.All handovers not taking place at the children’s school shall take place at a location as agreed between the parties in writing or in default of agreement, inside Suburb F Police Station.
21.The Father continue to engage with E Centre for as long as recommended by the service, to assist the Father with the following:
(a)guidance on protective and positive parenting strategies to develop his insight into the children’s emotional needs; and
(b)developing his insight into the connection between children’s cognitions, emotions and behaviours.
22.The parties communicate with each other via the AppClose co-parenting application only, with such communication to relate to the care, welfare and development of the children only.
23.The parties are each restrained and an injunction is hereby granted restraining each of them from:
(a)Abusing, denigrating or criticising the other parties or the other party’s family in the presence of the children, or from allowing any other person to do so;
(b)Physically disciplining the children, or from allowing any other person to do so;
(c)Consuming any illicit substance or drinking alcohol to excess at least twenty-four (24) hours before the children coming into his or her care or whilst the children is in his or her care;
(d)Discussing these proceedings or any allegations or issues raised in these proceedings with the children, or in their presence, or allowing any other person to do so;
(e)Exposing the children to age-inappropriate materials, or allowing any other person to do so; and
(f)Publishing any information from these proceedings or any issues or allegations raised in these proceedings on any form of social media whatsoever, including but not limited to Facebook.
24.On a without admissions basis, the Father is restrained by injunction from allowing the children to access the attic of the Father’s house unless supervised by an adult.
BY THE COURT
25.The appointment of the Independent Children’s Lawyer is discharged upon the earlier of:
(a)The Independent Children’s Lawyer’s compliance with paragraph 8 herein; or
(b)The Independent Children’s Lawyer having been unable to arrange to meet with the Maternal Grandmother for the purpose of compliance with paragraph 8 herein for a period of 60 days following the date of these orders.
26.The parties each have liberty to make further application to the Court in the event that the children’s time with the Mother as provided for in these orders is unable to progress by reason other than the Mother having failed to take the necessary steps to procure its progression.
27.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
INTRODUCTION
Before the Court are the parties’ competing applications for parenting orders with respect to the children X born in 2017 (‘X’), who was aged seven at the time of the trial and Y born in 2019 (‘Y’), who was aged five at the time of the trial (collectively ‘the children’).
The Applicant Father, MR REYNOLDS, was born in 1984 and at the time of the trial was aged 40. The Respondent Mother, MS REYNOLDS, was born in 1988 and at the time of the trial was aged 36.
The parties commenced cohabitation in 2016 and were married in 2018. They separated under the one roof on 10 October 2022 and physically separated on 5 February 2023. They are not divorced.
At the time of the scheduled commencement of the trial, the Mother was legally represented. However, Counsel briefed to appear on her behalf sought and was granted leave to withdraw, and advised the Court that the Mother had terminated the instructions given to her solicitors. As a consequence, the Mother became self-represented. The Mother made an application for an adjournment. For reasons which were given ex tempore, the adjournment application was refused. As a result, the Mother represented herself at the trial.
The Mother was given a detailed explanation of the process of the trial prior to its commencement and was provided with copies of the relevant legislative provisions. Arrangements were made for her to consult with a duty lawyer on a number of occasions prior to and during the running of the trial. Some changes to the conduct of the proceedings were made to accommodate the Mother’s lack of familiarity with the legal process. I take into account in assessing the Mother’s conduct of her case the circumstances that she was self-represented, that she was unfamiliar with court processes, that she became self-represented only shortly prior to the commencement of the trial, leaving her with limited time for preparation, and that she has a number of personal vulnerabilities, which are discussed later in these reasons.
BACKGROUND
Although the circumstances of the parties’ physical separation are contested, with the Mother alleging that she was forced out of the home by the Father and rendered homeless, it is agreed that once the physical separation occurred, the Father remained living in the former matrimonial home and the children lived with the Mother. The children remained in the primary care of the Mother until 16 May 2023, at which time a court order was made providing for them to be delivered up to and commence living with the Father. They have been in the primary care of the Father since that time. At times, this has been subject to a requirement that the Father reside with the paternal grandfather.
The time the children have spent with the Mother since they commenced residing with the Father has been inconsistent. Orders made on 23 May 2023 provided for the children to spend time with the Mother each alternate Saturday from 2:00pm until 6:00pm and each alternate Sunday from 10:00am until 6:00pm under the supervision of the maternal grandmother. Orders made on 24 October 2023 varied these orders to allow for Ms H, who was then the Mother’s housemate, to supervise her time with the children. On 23 July 2024, the children’s time with the Mother was suspended following multiple breaches of court orders involving the Mother overholding the children.
At the time of the trial in January 2025, although orders had been made on 1 August 2024 providing for the Mother to commence spending professionally supervised with the children at B Children’s Contact Service (‘the CCS’) on one occasion per fortnight, only one such visit had taken place.
The Father has repartnered with MS J. He and the children live with Ms J and her children, K, aged 7 and L, aged 4, who are in her care during alternate weeks. At the time of the trial, the Mother had been living in the home of a family friend for just under two months. She deposed to an intention to find long-term accommodation of her own.
THE PARTIES’ POSITIONS AND THE MATTERS REQUIRING DETERMINATION
Although there was a significant divergence between the parties’ respective positions at the commencement of the trial, the dispute between them had narrowed significantly by its conclusion. As a consequence, they reached agreement with respect to a number of significant issues, including, in summary:
(a)That the children would continue living with the Father;
(b)That the children would spend professionally supervised time with the Mother, building to supervised time outside the professional setting, and ultimately to unsupervised overnight time (though they differed as to the details of and conditions attaching to such progression);
(c)That the Mother would undertake the addiction recovery program offered by D Centre and a follow-up program referred to throughout the trial as the ‘graduate program,’ as a condition of the progression of her time with the children (though they differed as to the progression that would result from each of these courses being completed);
(d)Arrangements for handovers;
(e)Arrangements for special occasions (upon the Mother’s progression to unsupervised time);
(f)That the Father would engage with E Centre for assistance with parenting strategies and insight;
(g)That they would communicate using the AppClose parenting app;
(h)That there would be mutual injunctions with respect to matters including denigration, physical discipline, use of illicit substances and alcohol, discussion of issues pertaining to the proceedings with the children and publishing information pertaining to the proceedings on social media;[1] and
(i)That there would be an injunction (without admissions) restraining the Father from allowing the children unsupervised access to the attic in his home.
[1] Noting that although family violence orders apply with respect to each of the parties, these orders were both made on Police applications, and as a consequence, section 114AB of the Family Law Act 1975 (Cth) is not a barrier to the making of the proposed injunctions: Cauchi & Cauchi [1993] FamCA 140; (1994) FLC ¶92-447.
To the extent that the parties and the Independent Children’s Lawyer (‘ICL’) reached agreement as summarised above, I am satisfied that the proposed orders are in the best interests of the children, and such orders will be made by consent.
The Father and the Mother each otherwise structured their proposals based on a minute of proposed orders circulated by the ICL.[2] The issues remaining in dispute between the parties and therefore requiring determination by the Court at the conclusion of the trial were, in summary, as follows:
[2] A copy of that minute, marked up to reflect the Father’s proposals for departure from it, is exhibit F3. The Mother’s proposals for departure from the orders proposed by the ICL and the Father were communicated verbally to the Court at the conclusion of the trial.
(a)Whether decision-making responsibility with respect to major long-term issues should be shared between the parties as sought by the Mother, or vested in the Father (with requirements as to consultation with the Mother prior to making decisions and advice being provided to her afterwards) as sought by the Father and the ICL.
(b)Whether the professional supervision of the children’s time with the Mother would proceed for a further six visits as sought by the Mother and the ICL, or 12 visits as sought by the Father.
(c)Whether communication between the Mother and the children, which it was agreed would commence at the conclusion of the fourth professionally supervised visit, should be permitted to occur by way of video call as proposed by the Mother and the ICL, or by telephone only as sought by the Father; whether it should occur at 5:00pm as sought by the Father or 6:00pm as sought by the ICL; and whether it should occur once per week as sought by the Father and the ICL or more frequently as sought by the Mother.
(d)The times and frequency of the supervised time to be spent with the children by the Mother upon the transition to time outside the setting of the CCS. In this regard, the ICL proposed each alternate Saturday and Sunday from 2:00pm until 6:00pm; the Father proposed each alternate Saturday from 10:00am until 2:00pm and the Mother sought that it occur every week rather than on alternate weeks.
(e)The identity of the supervisor of the Mother’s time with the children following the completion of the professionally supervised time. In this regard, the ICL proposed that this be a person agreed to between the parties and in the absence of agreement, nominated by the Mother. The Father proposed that this be the Maternal Grandmother, or in the absence of her agreement to perform that role, a person agreed to between the parties. The Mother was not able to commit to a position but did not oppose her mother performing the role of supervisor, subject to her agreement to do so.
(f)Whether any supervisor engaged should be required to provide an undertaking with respect to their obligations as a supervisor (as proposed by the Father), or whether this should be limited to any supervisor not agreed to by the parties (as proposed by the ICL). The Mother did not take a position with respect to this issue.
(g)Whether the time to be spent by the Mother with the children after her completion of the recovery program should remain supervised as proposed by the Father or progress to unsupervised time as proposed by the Mother and the ICL.
(h)Whether the time to be spent by the Mother with the children after her completion of the recovery program should take place each alternate Saturday and Sunday from 12:00pm to 6:00pm as proposed by the ICL, or each Saturday from 9:00am to 5:00pm as proposed by the Father.
(i)Whether, in the event of inability to agree to a supervisor, time should take place at the C Children’s Contact Service unsupervised onsite playgroup at such times and frequency as may be offered by the Service provided that such time take place no more frequently than on one occasion each alternate week. This was the proposal of the Father. It was not supported by the ICL. The Mother was equivocal with respect to this proposal.
(j)Whether the Mother’s time should ultimately progress (upon satisfaction of the conditions determined by the Court to be appropriate) to 12:00pm Saturday to 6:00pm Sunday each alternate weekend (as proposed by the Father and the ICL) or each weekend (as proposed by the Mother).
(k)The conditions to be attached to the progression of the children’s time with the Mother; particularly the extent (if any) to which the Mother would, as a condition of her time progressing to unsupervised time and ultimately overnight time, be required to engage in and continue to engage in trauma focused therapy in addition to drug rehabilitation.
(l)Whether the time between the Mother and the children would be suspended in the event that she attended handover for supervised time without the nominated supervisor present on two consecutive occasions; withheld the children from the Father without his consent; or returned the children to the care of the Father more than half an hour late on two consecutive occasions. Orders in these terms were sought by the Father. The Mother and the ICL opposed the suspension of the Mother’s time, particularly in the event of lateness.
(m)The provision (if any) to be made for a return of the matter to Court in the event of a breakdown of the operation of the orders.
(n)Whether there should be a requirement for the parties to attend mediation after the completion of all the proposed treatments to be undertaken by the Mother with a view to moving towards a shared care arrangement. Such a provision was sought by the Mother and opposed by the Father. The ICL did not express a position in this regard.
MATERIAL RELIED UPON
The Father relied on the following documents:
(a)Amended Initiating Application filed on 17 September 2024;
(b)Trial affidavit filed on 10 January 2025;
(c)Affidavit of Mr Q (the paternal grandfather) filed on 10 January 2025; and
(d)Case Outline filed on 16 January 2025.
The Mother relied on the following documents:
(a)Response to Initiating Application filed on 12 May 2023;
(b)Trial affidavit filed on 16 January 2025; and
(c)Undertaking filed on 16 January 2025.
The ICL relied on a Case Outline filed on 20 January 2025.
Each of the parties also tendered various documents during the course of the trial. Although I have not made specific reference to all of the evidence or submissions before the Court, I have taken into account all of the evidence relied upon by each of the parties and all of the submissions made by or on behalf of each of them.
THE PARTIES AND THEIR EVIDENCE
Section 102NA of the Family Law Act 1975 (Cth) (‘the Act’) has mandatory application in the present proceedings, as there are family violence orders in place against each of the parties for the protection of the other. As a consequence, being self-represented, the Mother was not permitted to cross-examine the Father. The Father’s evidence was not wholly untested, as he was cross-examined by Counsel for the ICL. Nonetheless, significant aspects of the Father’s evidence were not specifically challenged, and as Counsel for the ICL rightly submitted, this was entirely appropriate in circumstances in which many such matters fall outside the knowledge of the ICL.
Although the Court is not bound to accept unchallenged evidence, rejection of such evidence must be approached with caution.[3] I am conscious that in the present case, the Mother did not deliberately elect not to challenge the evidence of the Father, and nor did she elect to proceed with the trial once she became unrepresented. She sought an adjournment and was not successful, at which time the option of challenging the Father’s evidence by cross-examination was not open to her. It cannot, therefore, be inferred that failure to challenge the Father’s evidence constitutes acceptance of its accuracy or acquiescence to its acceptance. Indeed, it was evident from the Mother’s evidence and the manner in which she presented her case that she disputed significant aspects of the Father’s evidence.
[3] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587–588; Scott & Scott [1994] FamCA 12;(1994) FLC ¶92-457; Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772.
In those circumstances, to guard against undue prejudice to the Mother, and to avoid the risk that section 102NA might operate to impede the Court’s ultimate objective of determining the best interests of the children and ensuring their safety in the circumstances of this case, the Father’s evidence has been given careful consideration in the context of the evidence before the Court as a whole and has not simply been accepted as a consequence of being unchallenged.
Subject to the limitations on the Court’s ability to assess the evidence of the Father in the absence of testing of that evidence by or on behalf of the Mother, the Father presented as a generally reliable witness. He was responsive to the questions asked of him and made appropriate concessions.
The Mother was not an impressive witness. Although she was at times responsive to the questions asked of her, at other times she was evasive, and she frequently asserted that she was unable to recall the information that was asked at her. At times she refused to make reasonable concessions. Some aspects of her evidence were entirely implausible, some aspects were directly contradicted by independent records, and some aspects were internally contradictory.
The Father’s evidence has largely been accepted where it conflicts with the evidence of the Mother. This is primarily as a consequence of my reservations with respect to the Mother as a witness, and not as a consequence of the Father’s evidence not having been challenged. As a result of the difficulties arising with respect to the operation of section 102NA, considerably more weight has been given to those aspects of the Father’s evidence which are corroborated by other evidence, including independent records and the Mother’s evidence (including her evidence given under cross-examination) than to evidence given by the Father which is unchallenged but uncorroborated.
The paternal grandfather also gave evidence. He was cross-examined by the Mother but not by Counsel for the ICL. He presented as a reliable historian. I accept his evidence.
In accordance with section 140 of the Evidence Act 1995 (Cth), all findings of fact in this judgment are made on the balance of probabilities. This standard, however, is ‘not the measure by which an unacceptable risk of harm is to be assessed,’[4] and it has not been applied to my consideration of issues of unacceptable risk. Some of the findings in these reasons relate to conduct of a very serious nature. I have had regard to the matters outlined in section 140(2) of the Evidence Act, particularly the gravity of the matters alleged, when making such findings.
[4] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
EXPERT REPORTS
The Court was assisted by a Family Report prepared by Regulation 7 Family Consultant Ms M dated 28 July 2024. Ms M gave evidence and was cross-examined by Counsel for the Father and the ICL and by the Mother. Her evidence was balanced and measured. There was no challenge to her expertise or to the accuracy of her observations. I accept her evidence and give weight to her recommendations.
Ms M recommended, in summary, that the Father have sole parental responsibility for the children, that the children live with the Father, and that the children spend supervised time with the Mother. She also recommended the implementation of a number of other therapeutic and protective measures.
In the witness box, Ms M said that although the recommendations in the Family Report stopped at supervised time, if the Mother was internally motivated to meaningfully engage in therapy, address her maladaptive responses, and demonstrate abstinence from illicit substances for an extended period, there could be a pathway towards unsupervised overnight time.
A psychiatric report with respect to the Mother prepared by Dr G, psychiatrist, on 26 September 2024[5] was tendered by consent. Dr G was not required for cross-examination. I accept his report.
THE RELEVANT LEGAL PRINCIPLES
[5] Exhibit F1.
The legislation
Part VII of the Act guides the process of decision-making in relation to the making of parenting orders. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, the Court must consider the best interests of the child as the paramount consideration. Section 60CC of the Act sets out how those best interests are to be determined, and includes a list of considerations to be taken into account.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has care of the children
The word ‘safety’ is not defined in the Act. It is defined in the Oxford English Dictionary as ‘the state of being protected from or guarded against hurt or injury; freedom from danger.’
In Oyama & Oyama,[6] Gill J held that ‘safety’ in this context is a term that is wide in nature, and bounded only by its object, being to keep children, and those who care for them, from harm, and that it should not be taken to have a fixed content or standard. The paragraph requires the Court to consider the risk of harm that accompanies the relationship, in whatever form it may take and does not contemplate consideration of the benefits of a relationship where such is not safe.
[6] [2024] FedCFamC1F 738.
In Denton & Denton (No 3),[7] Altobelli J expressed the view that ‘safety’ is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
[7] [2024] FedCFamC1F 476.
In Melounis & Melounis (No 4),[8] Altobelli J held that to promote safety, for the purposes of s 60CC(2)(a), means ‘to advance the interests of, and move to a stronger or more prominent position, the safety (ie to be free from hurt, damage, harm or danger) of children and those who care for them’ and that the statutory requirement to promote safety involves advancing a positive outcome, which would necessarily include protection from harm but would not be limited to this.
[8] [2024] FedCFamC1F 778.
I respectfully adopt these definitions in determining the arrangements that would promote the children’s safety.
In this matter, there are numerous matters alleged by each of the parties which are directly relevant to the children’s safety. Each of these is considered below.
Family violence
In considering this factor, it is necessary for the Court to consider any history of family violence, abuse or neglect involving the children or a person caring for the children (whether or not the person had parental responsibility for the children) and any family violence order that applies or has applied to the children or a member of the children’s family.[9]
[9] Family Law Act 1975 (Cth), s 60CC(2A).
‘Family violence’ is defined in section 4AB of the Act to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’ It is not necessary that violent or threatening behaviour coerce or control or cause fear in order to be characterised as family violence.[10]
[10] Pickford & Pickford [2024] FedCFamC1A 249 (per Aldridge & Carew JJ, with whom McClelland DCJ agreed).
The parties each made allegations of family violence against the other, including allegations of violent conduct having taken place in the presence of the children.
The violence to which the Mother alleged that she had been subjected by the Father included punching her in the face, grabbing her by the throat, smashing her face onto a bench, dragging her out of the house, kicking her, including kicking her into a wall, stomping on her foot, threatening to harm her if she did not drop charges against him, and head butting her.
The Mother’s credibility with respect to her allegations of family violence and more broadly was considerably undermined when she was cross-examined about an incident that occurred in January 2024. At that time, the Mother had retained X in her care for a period of approximately four weeks in breach of court orders. She was advised that day that X was to be returned to the Father via her school.
The Mother reported to Police that she had attended at the school, and when she returned to her car, the Father had been waiting for her, had threatened her life and had physically assaulted her by punching her in the face. She obtained medical attention for swelling and pain to her face. She deposed in her trial affidavit that the Father had not been charged because there was no CCTV footage.
Police records indicated that there was in fact CCTV footage, and it demonstrated that the Mother had returned to her car and driven off without being confronted by any other person and that no other person had approached her vehicle. When confronted with this in cross-examination, the Mother provided the entirely new story that she had returned to her car, driven a short distance down the road, pulled over because she received a phone call, left her vehicle while having a cigarette, and then returned to her vehicle to find the Father waiting for her, following which the incident alleged by her had occurred. She admitted that the Police had accurately reported what she had told them and claimed not to have told them about having driven down the road because she was feeling ‘fuzzy’ when she spoke to them on the night of the incident. She later contradicted this evidence by saying that the Police records reflected a miscommunication between herself and the Police. She provided no explanation for her failure to include these new details in her trial affidavit which had been sworn in the days leading up to the trial. The Mother’s evidence in this regard gave the distinct impression of having been a recent invention.
The Mother agreed that she had not attempted to report the incident to Police or to obtain medical attention until many hours after she said it had occurred. She attributed this to having been concussed and ‘shaken up.’ She denied that the delay had been because the Father had not assaulted her as alleged and denied that she had made the report out of anger with the Father for having taken X back into his care or as an attempt to have the children removed from the Father and placed with her. These denials were unconvincing, as was the Mother’s evidence with respect to this entire incident.
The Father alleged that the Mother had threatened him with a knife on several occasions, pressed a knife into his stomach, punched him in the face on multiple occasions, attacked him resulting in a cut and scratches, punched him in the stomach, and vandalised his car. The Father also made allegations of the Mother subjecting him to verbal abuse in the presence of the children, sending and posting threatening and abusive messages and threats to have him harmed and killed, and having others contact him to threaten him.
Each of the parties admitted to some conduct constituting family violence. The Father admitted to having spat on the Mother, having taken her phone and threatened to smash it, having pushed her to the ground, and having pushed her into a bench. The Mother admitted to having held a knife and pressed it against the Father, and she was unable to recall whether this had occurred more than once. She also admitted to having slapped and hit the Father. Each of the parties asserted that these things had had occurred in self-defence in the context of attacks on them by the other.
It was not a matter of contention between the parties that the records of both the Department for Child Protection (‘DCP’) and the South Australia Police contained numerous reports with respect to family violence in relation to each of them, though it is not clear how many such reports were made by third parties.
At the time of the trial, there was a final family violence order in place against the Father and an interim order against the Mother, both of which had been made following Police applications. In early 2024, the Mother was charged with breaching the family violence order against her.
Each of the parties has been charged with aggravated assault with respect to their conduct towards the other. In early 2023, Father pleaded guilty to aggravated assault against the Mother in late 2022. As at the time of the trial, the Mother was still facing charges for aggravated assault relating to altercations between the parties in early 2023 in relation to which she was on bail.[11]
[11] Exhibit ICL9.
I am satisfied that the relationship between the parties was characterised by mutual family violence and that the children were exposed to this. However, given the relatively narrow parameters of the dispute ultimately requiring determination, it is not necessary to make specific findings in relation to each individual alleged incident. In this regard, I respectfully adopt the observations of Austin and Williams JJ in Pickford & Pickford[12] (‘Pickford’) to the effect that it must be borne in mind that the purpose of litigation under Part VII of the Act is to determine the orders which will best serve children’s best interests, and the objective of keeping children and their carers safe should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents. Like that in Pickford, the dispute in this matter is narrow and does not demand a fixation on past family violence.
[12] Pickford & Pickford [2024] FedCFamC1A 249 at [80].
Illicit substance use
It was common ground that early in their relationship, both parties were regular users of illicit drugs. They agreed that they had both ceased illicit drug use upon learning of the Mother’s pregnancy with X, but had both relapsed at a time of trauma and crisis in early 2021 when X had disclosed that she had been sexually abused by her maternal step-grandfather (who is no longer in a relationship with the maternal grandmother). The maternal step-grandfather was charged but not ultimately prosecuted.
The Father’s evidence was that he had regained abstinence approximately five weeks after this relapse and had not used illicit drugs since that time, save for an occasion in late 2022 when the parties used illicit drugs together. He has undertaken a hair follicle test and a number of urine screens during the currency of the proceedings, which have been negative for illicit substances.
The Father alleged that the Mother had not successfully achieved sustained abstinence, and that despite brief periods of abstinence she had continued to use illicit drugs. He alleged that this included having used it at the parties’ home while they were separated under one roof and having used it intravenously, and that there was and continued to be a significant risk to the children associated with her use of illicit drugs. The Mother acknowledged to Dr G that she had used illicit drugs four times per week in the past.
The Mother produced a hair follicle test that was positive for illicit drugs in late 2023. On 24 October 2023, and again on 1 August 2024, she was ordered to undertake a further hair follicle test. She did not do so. She returned a positive result for illicit drugs when administered a urine test by DCP in mid-2024. She did not undertake a further two tests that were scheduled by DCP later that month.
The Mother’s evidence with respect to her recent use of illicit drugs was wholly unsatisfactory. In her trial affidavit, which was sworn on 16 January 2025, the Mother deposed that she had last consumed illicit drugs in approximately late 2024. When cross-examined only five days later, however, her memory of when she last used the drug was extremely vague. She said that she had not used illicit drugs after the order made by consent on 1 August 2024 (with which she did not comply) requiring her to undertake a hair follicle test, and then dismissed the inconsistent evidence in her affidavit as having been a ‘guestimate’ before asserting (again, inconsistently) that she had not been aware of the order.
The Mother denied having used illicit drugs in the lead up to the positive urine test in mid-2024. She attempted to explain the positive test result to DCP by claiming to have taken cold and flu medication. To Dr G, she said that she believed that illicit drugs had been administered to her by another person without her knowledge. In the witness box, she postulated that a person named Mr N known to her and the Father may have ‘spiked’ her drink with illicit drugs. This evidence was lacking in credibility.
The Mother told Ms M in June 2024 that she had last used illicit drugs in late 2023 and made a similar assertion to DCP at around the same time. However, she told Dr G in September 2024 that she had used in early 2024. She provided no explanation for this inconsistency other than that she could not recall the specific dates and had given her ‘best guess.’ The Mother denied that any of her contradictory statements had been lies. I do not accept that denial.
The Mother told DCP in June 2024 that she had engaged with O Services the previous month, but O Services informed DCP that she had engaged in November 2023 and her file had been closed in January 2024 as a result of inactivity. She denied that she had been being untruthful with DCP. That denial was unconvincing.
The Mother denied that she presently consumed illicit drugs. However, she produced no hair follicle or even urine test to support this assertion, despite deposing on 16 January 2025 to an intention to undergo a urine test the following day. The Mother’s evidence with respect to her illicit drugs use generally was so unreliable as to render her evidence on this topic incapable of acceptance.
The Father’s evidence was that the Mother had engaged in erratic and volatile behaviour in the period following their separation including but not limited to attempting to break into the former matrimonial home, including on one occasion with a hammer; vandalising the former matrimonial home; slashing the tyres of his car; sending him explicit photographs of herself with another man or men; and keeping the children up very late at night. Much of this behaviour was admitted to by the Mother. The extent to which such behaviour is directly attributable to drug use is not clear.
It is notable that the Mother’s own evidence was that she had continued to consume illicit drugs while these proceedings had been on foot and well after it had become apparent to her that her use of illicit drugs was a significant barrier to her strongly held desire to resume significant care of the children. I infer from this that the Mother is unable to maintain full control over her drug use.
At the time of the trial, the Mother was on bail and facing drug charges (in addition to her charges for aggravated assault and other charges). She explained this as having arisen after she had been present when the house of a person she had recently started seeing had been raided and searched by Police and a jar containing a substance likely to have been illicit drugs had been found.
The Mother has, in the past, taken some steps towards attempting to address her illicit drug use. This includes having enrolled in the D Centre drug rehabilitation program but not having actually completed the course, which she explained as having been because she felt overwhelmed. She acknowledged under cross-examination that completing rehabilitation would not be easy.
Dr G opined, based on a reasonable degree of medical probability, that the Mother was suffering from (inter alia) a drug use disorder. He recorded that parental illegal drug use was considered an adverse childhood experience which leads to psychiatric and physical problems as children develop. Dr G cited a number of studies outlining the considerable risks to children and their development associated with parental illicit drug use in particular.
Ms M, likewise, reported that parental illegal substance abuse can influence a parent’s mood, cause inconsistent parenting, undermine a child’s sense of security, increase the risk of child maltreatment, impair parental judgment and the ability to attend to a child’s needs and increase the risk of neglect, inappropriate parental responses and harm to a child.
Dr G reported that the drug use disorder has a poor prognosis and is considered to be a chronic, relapsing condition. It is often characterised by repeated periods of intense use with intermittent abstinence and relapse. For those who do not engage in treatment, there is a five year remission rate of up to 30 percent. For those who do engage in treatment, 61 percent relapse within the first 12 months and another 14 percent relapse during the next two to five years.
The Mother’s evidence was that she used illicit drugs to ‘numb’ herself, and as a coping mechanism. She admitted that she continued to struggle not to use illicit drugs at times and that she needed support and treatment. I accept the submission of the ICL that it is clear on the evidence, particularly Dr G’s report, that the reality is that absent assistance and intervention, the Mother’s prospects of overcoming her drug use disorder are very limited, and that even with appropriate interventions, the risk of relapse (which has occurred for the Mother following past periods of abstinence) is high.
It was clear from the Mother’s evidence that she would not tell the Father if she relapsed in future, even though she acknowledged that it would be important for him to know. She was evasive when confronted with the reality that the only way in which the Father could become aware if she relapsed was through the children. Ms M confirmed that this heightened the risk for the children.
Mental health
Significant concern was raised on the evidence before the Court with respect to the Mother’s mental health, with which she has experienced longstanding and persistent difficulties. I am not critical of the Mother for her mental health struggles, but note that this is a matter of significant relevance to my assessment of the safety and best interests of the children.
Dr G opined, based on a reasonable degree of medical probability, that the Mother was suffering from post-traumatic stress disorder (‘PTSD’) and a drug use disorder. He considered that she had a number of unhelpful personality traits and may also be suffering from a mental illness. Ms M opined that the combination of PTSD and a drug use disorder was a complex psychiatric diagnosis.
Dr G opined, and Ms M agreed, that an experience of trauma can interfere with a person’s ability to function in everyday life and can compromise parenting capacity. Dr G also opined that if an emotionally dysregulated parent exposes their child to extreme events, this can lead the child to become emotionally dysregulated. Ms M reported that due to the often-encompassing nature of episodes of poor mental health, parental attunement can be compromised; and in the event of unprocessed trauma experiences, there is a significant risk of parenting and life stressors triggering unprocessed trauma, which increases the risk of inappropriate parental responses. When stressed or triggered, a parent with unprocessed trauma becomes preoccupied with their own needs and their ability to prioritise their children’s needs and consider the impact of their behaviour on the children is compromised.
The Mother told Dr G that she was compliant with therapy despite not undertaking any therapy at the relevant time. She gave evidence that she could not recall having said that to Dr G. Ms M raised concern about the Mother’s seemingly limited efforts to address her mental health issues during these proceedings, which she opined raised concern about her possible limited insight into her mental health needs and the impact of her mental health on her parenting and the children.
Alcohol abuse
The Mother alleged that the Father drank alcohol to excess and linked her allegations of violence to his use of alcohol. The Father acknowledged that he had frequently drunk alcohol during the parties’ relationship, but gave evidence that he no longer consumed alcohol. In early 2020, the Father lost his licence for a period for driving under the influence of alcohol. In late 2022, he was again caught driving under the influence of alcohol and again lost his licence.
The Mother alleged that the Father had been intoxicated at a handover in December 2023 at which an altercation between the parties occurred resulting in Police intervention (which is discussed in greater detail below). The Father admitted to having drunk two cans of pre-mix alcohol drinks on that occasion but denied having been intoxicated.
The Father undertook a carbohydrate deficit transferrin test during the course of the proceedings which produced a result in the normal range. There will be an injunction restraining excessive alcohol use during or 24 hours prior to the time the children spend in the care of either of the parties.
Physical abuse of children
The Mother alleged that the Father subjected the children, particularly Y, to physical abuse and engaged in ‘rough play’ with them. For example, she alleged that in July 2024, the Father had thrown an ipad at Y, causing a bruise on his hand. In July 2024, the Father admitted to DCP that he had ‘shoved’ Y into his room and ‘clipped him around the ears.’
It was not a matter of dispute that reports had been made to DCP in this regard and that DCP had not removed the children from the care of the Father, with their primary concern in recent times having been with risks associated with the Mother’s care. A DCP report produced in July 2024 pursuant to an order made under section 91B of the Act confirmed that the Father was assessed as having the ability to meet the children’s needs appropriately and as providing adequate primary care.[13]
[13] Exhibit ICL10.
X told Ms M that her father had never behaved in a manner that caused her to feel distressed or scared. She chose ‘bear cards’ representing ‘happy,’ ‘silly’ and ‘very silly’ to depict living with her father. Nothing of concern arose from the Father’s observation with the children. Ms M did not consider that the children were at significant risk in the Father’s care.
Threats to children
The Father alleged that in early 2023, the Mother had told him that she would kill the children rather than let him have them. The Mother denied this allegation. Her evidence in relation to this issue appeared genuine. I accept the Mother’s denial in this regard.
Neglect and inadequate supervision of children
The Mother alleged that the Father had failed to provide adequate parenting and supervision to the children in a number of respects, including that the children had, in the past, often come into her care hungry and exhausted, that they suffered things such as head lice and dandruff, and that their clothes were at times unwashed. She also alleged that the children climbed up to and played in the Father’s attic unsupervised. An injunction is to be made by consent in relation to the attic.
The Mother tendered a series of photographs of the children which she said depicted bruises, injuries, tiredness, and warts.[14] The Mother’s evidence with respect to what acts or omissions on the part of the Father were demonstrated by the photographs was somewhat difficult to follow. I am not satisfied that the photographs demonstrate neglect or mistreatment of the children on the part of the Father. Indeed, the greater concern is the message sent to the children by having their injuries photographed as part of the Mother’s evidence gathering endeavours. Ms M spoke of the risk of the Mother instilling in the children a level of distrust in the Father’s parenting capacity and undermining his role as a parent.
[14] Exhibit M1.
The Father admitted to an incident where X had come close to drowning because she had been unsupervised around a swimming pool, and to having placed blankets over the children’s heads. The Father asserted, and X confirmed to Ms M, that the Father had ceased the behaviour with respect to the blankets when he was asked to stop.
The Mother alleged, and the Father denied, that X had tried vaping while in the care of the Father. As a result of the general difficulties with the Mother’s evidence, I am unable to accept this evidence, which is uncorroborated.
The Mother also alleged that the Father allowed the children to watch horror movies and other content that was not appropriate for children. The Father acknowledged this in part when interviewed by Ms M. The orders agreed to by the parties include an injunction restraining the parties from exposing the children to age-inappropriate material.
There were also serious concerns raised about the Mother’s care of the children during the period they lived with her, including that she kept them up and out of their home into the early hours of the morning, and that she was unable to ensure that X consistently attended school (being an issue which is discussed in greater detail below).
X did not report any information to Ms M that alerted concern for either parent’s mistreatment of her or possible inadequate attendance to her needs. DCP is satisfied with the care being provided by the Father. Noting that the parties have agreed to an arrangement involving the children living primarily with the Father, I do not consider it necessary to make specific findings in relation to each allegation against him. I am satisfied that residing primarily with the Father is in the children’s best interests.
Denigration and undermining of relationship with other parent
The Mother alleged that the Father denigrated her to the children and undermined her relationship with them, including by failing to facilitate the children’s calls with her. The Mother also alleged, for the first time, in the witness box, that the Father had withheld the children from her for a period of 10 weeks, a period of five weeks and two periods of seven weeks. Despite the specificity of that evidence, when questioned again shortly thereafter, she claimed to be unable to recall whether there had been a period of 10 weeks. This evidence was lacking in credibility. I do not accept it.
Under cross-examination, when asked whether the children love their mother, the Father responded ‘100 percent.’ He also readily acknowledged that they enjoy spending time with her and that ‘of course’ they need a relationship with her.
The Mother acknowledged that the Father had not sought to prevent her from speaking with the children when she had arrived unannounced at their end of year concert in December contrary to the terms of orders of the Court (as discussed below).
When interviewed by Ms M, X did not report exposure to the Father denigrating the Mother or speaking about her in a negative light. To Ms M, the Father presented as disappointed in the deterioration in the co-parenting relationship and the Mother’s lack of progress in demonstrating her ability to be a safe and protective parent. His disappointment appeared to Ms M to be largely due to the likely limiting impact this would have on the Mother’s parental role in the children’s lives and the children’s time and relationship with her.
The Father alleged that the Mother interrogated the children about him and his household. This was supported by X, who reported to Ms M that the Mother asked her questions about the Father, such as what occurred at his home and who attended his home.
History of non-compliance with orders
The history of this matter involves a repeated and persistent failure on the part of the Mother to comply with orders of the Court. The Father alleged, and the Mother did not deny, that she had committed multiple breaches including withholding the children contrary to the terms of orders, returning the children up to two hours late and attending at handovers without the supervisor who was supposed to have been supervising her time with the children.
In one significant example, in December 2023, an altercation developed in the presence of the children at a handover, which took place at a police station. Police intervened and facilitated Y leaving with the Father and X leaving with the Mother, based upon X’s assertion to the Police that she wished to remain in her mother’s care. Having allowed the children, then aged four and six, to be subjected to the significant emotional pressure of being asked by Police officers to choose between their parents notwithstanding the existence of orders, the Mother proceeded not only to leave with X but to retain her in her care for a period of approximately four weeks, which kept the children separated from each other, until such time as X was returned to the Father’s care via her school when school resumed for the new year in January 2024.
This was a blatant and egregious breach of the court orders then in force, which provided not only for X to live with the Father but for the Mother’s time with her to be supervised. In the witness box, the Mother demonstrated no appreciation of the seriousness of her disregard for the orders of the Court.
The Mother also withheld both children from the Father from 10-15 February 2024; Y from 17-19 February 2024; and both children again from 11-12 May 2024 and again from 13 July until their delivery up was ordered on 23 July 2024, again completely disregarding binding court orders which not only provided for the children to reside with the Father but imposed restrictions on their time with the Mother for their safety.
The Mother’s actions in overholding the children are concerning for reasons extending beyond what they reveal about her attitude towards her obligations pursuant to binding court orders. Ms M’s evidence was that being overheld in such a manner is disruptive, undermines children’s sense of security, results in them not knowing where they are going to be or who they will be with, and that this ‘takes over the business of being a child,’ undermines their sense of trust in their parents to properly look after them and provide them the security and stability they require. This, in turn, can lead to issues with emotional regulation and aggression and can impact on their behaviour at school, which can in turn impact upon their relationships with peers, leading to perceptions that they are a bad person or bad at school, causing them further problems.
The Mother’s actions in overholding the children for extended periods in circumstances in which the orders provided for her time with them to be supervised also support the allegations made by the Father that she generally failed to adhere properly to the requirements for supervision provided for in the orders. This was also supported by X, who reported to Ms M in June 2024, at which time the Mother’s time was supposed to be being supervised by either Ms H or the maternal grandmother, that the only person usually present was the Mother’s then-housemate, Ms P.
The Mother also attended at the children’s end of year school concert in December 2024 without the Father’s consent or even notice to him, in the face of orders limiting her time with the children to professionally supervised time.
The Mother sought to attribute her lateness to handover to difficulties settling Y, who she said was reluctant to leave her care. I do not accept this evidence. The Mother’s lateness to handover was but one of numerous examples of the Mother ignoring the obligations imposed on her by court orders.
The Mother filed and relied upon an undertaking to comply with all parenting orders. This is a promising step. However, she presented as continuing to lack understanding as to the seriousness of her history of non-compliance.
Father’s partner’s children
The Father’s partner’s daughter, K, is in the same class at school as X. The Mother alleged that X was subjected to bullying by K in the Father’s household and that K had caused X to suffer bruising. The Father reported to Ms M that conflict characteristic of sibling rivalry sometimes arose in his household and that he and his partner managed these as they arose. X reported to Ms M that she had a close and friendly relationship with K, who was her ‘best friend,’ but acknowledged occasional conflict with K that included mutual hitting. She said that when this occurred, the Father and Ms J separated the girls in their respective bedrooms until they apologised to one another. I am not satisfied that the children or either of them are at risk of bullying by the Father’s partner’s children.
Mother’s insight
A number of aspects of the Mother’s evidence and the manner in which she gave it gave rise to concern that she lacked insight into the risks confronting the children, the consequences of her behaviour and the seriousness of her past conduct. Her lack of demonstrated understanding of the seriousness of having overheld the children, particularly in the face of orders providing for their time with her to be supervised was one such example. In particular, she demonstrated no real understanding of the seriously problematic nature of her conduct in having overheld X and kept her from the Father and Y for a period of four weeks in December 2023, insisting that there had been no negative impact on the children. She also demonstrated no insight into the difficult situation with which the children had been faced when asked by Police officers to choose between their parents on that occasion.
Ms M reported that the Mother appeared to lack insight into the disruptive impact of her overholding on the children in terms of their relationship with the Father and the lack of stability in their care arrangements and routine. This accords with my own observation.
Another example was the Mother’s failure to understand the problem with arriving for handovers for supervised time without a supervisor present. She was unable to accept that this had been inappropriate.
Under cross-examination, the Mother revealed a significant lack of insight into the problematic nature of her conduct in arriving unannounced at the children’s school concert in December 2024, at which time the orders of the Court provided that her time with the children was to be subject to professional supervision, and at which time the children had not seen her for approximately 16 weeks. She insisted that her conduct in this regard had been appropriate and that the children had ‘coped well,’ though she later admitted that Y had been in tears and that the experience had been upsetting for both children. Ms M opined that this experience was likely to have spiked the children’s stress levels and caused them to become hypervigilant, and the fact that it happened at school might also have led X in particular to hold concerns about the views of her peers.
Although the Mother acknowledged that her use of illicit drugs had had an impact on her ability to parent the children, she significantly minimised this impact, saying that she ‘probably wasn’t as present emotionally.’ When asked whether her illicit drugs use could be relevant to the children’s safety and welfare, she said ‘it’s hard to say.’
The Mother told Dr G that DCP held no concerns about her parenting capacity. This was despite it having been made clear from the DCP records in the lead up to that period that they held significant concerns about her illicit substance use and only considered it safe for her to spend time with the children if she was abstinent and supervised. When it was put to her that DCP had in fact been concerned about her substance abuse, she said ‘that’s not what I took from that, no.’ She ultimately conceded that DCP had been concerned about her substance abuse but was unable to explain why she had told Dr G that they held no concerns and refused to accept that what she had told Dr G had been inaccurate. This aspect of the Mother’s evidence was particularly unsatisfactory.
When interviewed by Ms M, the Mother did not appear to willingly accept accountability for the possible reasons the children were not in her primary care, particularly reasons concerning potential deficits in her parenting capacity and risks of harm related to her illegal substance use and mental health.
The Mother’s proposal at the commencement of the trial, which was that upon completion by her of five further sessions of professionally supervised time and a single clean hair follicle test, the children commence residing in an equal shared care arrangement, being a position which she maintained even after reading the statistics concerning relapse as outlined in Dr G’s report, was also demonstrative of a lack of insight into both the risks associated with her care and the children’s needs.
To the Mother’s significant credit, however, having heard the evidence as it unfolded during the trial, particularly the evidence of Ms M, and having considered the proposals of the ICL, the Mother adjusted her position considerably and focused less on her desire to spend significant time with the children and more on the need for significant efforts to be taken by her to address the problems confronting her. She also acknowledged the need for her to demonstrate committed and sustained change. This change in position did demonstrate some insight and it bodes well for the potential for change to Mother’s approach in future.
Unacceptable risk?
It is well established that a court will not make an order for children to live with, or spend time with, a parent if to do so would expose the children to an unacceptable risk.[15] Although the test initially related to allegations of risk of harm from sexual abuse, it has subsequently been extended to cases involving allegations of children being at risk of physical or emotional harm for other reasons.[16] In Vasser & Taylor-Black,[17] the Full Court of the Family Court of Australia (‘the Full Court’) referred to the decision of the High Court of Australia in M & M,[18] in which the test was laid out, as ‘having become the “touchstone” setting out the relevant principles to be applied in cases of asserted unacceptable risk of any kind.’ In addition to assessing past events, the Court must separately assess future risk. This is a predictive or prospective exercise.[19]
[15] M & M [1988] HCA 68; (1988) 166 CLR 69.
[16] A & A [1998] FamCA 25; (1998) FLC ¶92-800; B & B [1993] FamCA 143; (1993) FLC ¶92-357.
[17] [2007] FamCA 547; (2007) FLC ¶93-329 at [51].
[18] [1988] HCA 68; (1988) 166 CLR 69.
[19] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
In N & S & The Separate Representative,[20] Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
[20] [1995] FamCA 139; (1996) FLC ¶92-655 at [138].
The assessment of whether there is an unacceptable risk requires determination on the evidence whether there is a risk, the magnitude of that risk and the potential consequences of the harm that might befall the child or children concerned.[21] This involves giving consideration to the extent to which any risk found to exist may be ameliorated by protective measures such as supervision.[22] If an unacceptable risk is found, the Court must take steps which are proportionate to the degree of the risk.[23]
[21] Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303. See also Harridge & Harridge [2010] FamCA 445.
[22] Blinko & Blinko [2015] FamCAFC 146.
[23] A & A [1998] FamCA 25; (1998) FLC ¶92-800.
In Harridge & Harridge,[24] Murphy J referred to N & S & The Separate Representative (supra), and adopted the following list of inquiries with respect to risk assessment and analysis:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[24] [2010] FamCA 445 at [73].
In Pascoe & O’Keefe and Ors[25] the Full Court emphasised the significance of family violence to the assessment of risk:
… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child [citations omitted].
[25] [2018] FamCAFC 243 at [46].
The Father alleges that the children are presently at unacceptable risk in the care of the Mother. Notwithstanding the risk issues she raises, it is implicit in the Mother’s proposal that she does not assert that the Father poses an unacceptable risk to them. Although the Mother rightly submitted that safety issues relating to the Father should be taken into account as well as issues relating to the children’s safety in her care, the reality is that in circumstances in which the parties agree that the children are to continue to live in the primary care of the Father and the dispute between them related largely to questions surrounding the structure and conditions of their time with the Mother, the resolution of the dispute between the parties necessarily requires particular focus on the safety of the children in the care of the Mother and particularly whether she poses an unacceptable risk.
In considering whether the children are at unacceptable risk in the care of the Mother as alleged by the Father, I have carefully turned my mind to the existence of the possible risks of harm and also to the magnitude of the possible harm. I am satisfied that there is currently an unacceptable risk that the children will suffer harm and that their experience of safe and consistent parenting will be undermined if orders are made which provide for them to spend time with the Mother in the absence of significant protective measures. Indeed, although the Mother did not concede that she posed such a risk, the concessions she made in terms of the need for protective orders (which concessions are very much to her credit) suggest a level of acceptance in this regard.
Amelioration of risk
I have considered whether the risk might be ameliorated by protective measures such as supervision. As discussed later in these reasons, I am satisfied not only that the risk would be ameliorated by supervision but also that upon conditions being met by the Mother with respect to mental health treatment and drug rehabilitation, the risk will diminish such that it will no longer be unacceptable and supervision will no longer be required.
Any views expressed by the child
When asked by Ms M, X was unable or unwilling to articulate her wishes for her care arrangements. Y was not interviewed by Ms M. The ICL has met with the children as required by section 68LA(5A) of the Act, but did not relay any views expressed by the children to the Court. As a consequence, there is no evidence before the Court as to the children’s views.
The developmental, psychological, emotional and cultural needs of the child
Neither child is reported to have any developmental concerns.
It would appear that Y, in particular, is attached to the Father. He was unable to be interviewed by Ms M due to his refusal to separate from the Father for that purpose, and stayed close to the Father throughout their observation session. He initially refused to separate from the Father for the observation with the Mother and required encouragement from the Father to do so. He then asked for the Father seven minutes into the observation with the Mother and again twenty minutes in. The children, particularly X, were also assessed by Ms M to have an attachment to the Mother.
In light of the turbulence and conflict to which they have been subjected, the children both have a need for stability, consistency and emotional security.
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
Many of the matters already discussed go directly to the issue of the capacity of each of the parties to provide for the children’s needs.
One significant issue with respect to this factor is the Mother’s inability to ensure that X (who was then the only school-aged child) attended school consistently and regularly when the children were in her care. The Mother admitted this and attributed it to X having night terrors, demonstrating no insight into the importance of X’s consistent attendance at school. By contrast, the records of the school attended by the children demonstrate that since the children have been residing in the Father’s care, X’s (and later Y’s) school attendance has been consistent and both children have been progressing well, both socially and academically, at school.[26]
[26] Exhibits ICL3 and ICL11.
A further issue related to this factor is the Mother’s disorganised and somewhat chaotic manner and lifestyle, which impedes her ability to provide safe and consistent care for the children. The school attendance issue is but one example of this. Another example of this is her persistent lateness. This is an issue that was complained of not only by the Father with respect to handovers (which the Mother attributed to Y struggling with leaving her care) but was demonstrated during the course of the trial, when the Mother repeatedly arrived late to Court. On one such occasion, the Mother attributed her lateness to having left her phone in a rideshare car. The Mother was also late to her appointments with Ms M and Dr G.
The Mother missed her first scheduled professionally supervised visit with the children pursuant to the orders of 1 August 2024, which was scheduled for December 2024, because she was arrested and detained in custody after a warrant was issued as a result of her having missed a court date in the criminal proceedings with respect to the charges of aggravated assault. This resulted in the children showing up expecting to spend time with her, only to be disappointed. The circumstances giving rise to the criminal charges, on the Mother’s evidence, are themselves indicative of poor judgment and an unstable lifestyle. This is particularly so when considered in light of the fact that this was not the first occasion upon which the Mother had been involved with a person whose troubles with the law had led to a police search, this also having happened on a previous occasion in early 2023 when the Mother and children had been present for a Police search involving helicopters, during which the Police were looking for a person the Mother was then dating in connection with firearms related charges. The Mother’s evidence was that she was still in contact with this person.
As already mentioned, it was agreed between both parties and the ICL that the Mother would undertake (at least) the recovery program offered by D Centre as a condition of progressing to unsupervised time. The ICL further proposed, and the Mother did not oppose, a condition that she complete the graduate program prior to the commencement of overnight time. It was also agreed by all parties that prior to the commencement of overnight time, the Mother would need to provide two hair follicle tests which were clean of all illicit substances, the first being provided not earlier than six months after completion of the recovery program, and the second not earlier than six months after completion of the first. The parties otherwise differed as to the conditions that should be attached to the progression of the children’s time with the Mother.
The Father proposed significantly more onerous conditions on the progression of the Mother’s time with the children than did the ICL. His proposal was that the Mother be required:
(a)As a condition of her time progressing, to commence and continue to engage in a program of treatment involving either trauma focused cognitive behaviour therapy (‘CBT’) or eye movement desensitisation and reprocessing (‘EMDR’); dialectic behaviour therapy (‘DBT’) to address trauma (commencing after completion of four sessions of CBT or EMDR); and completion of the recovery program (commencing after completion of four sessions of CBT or EMDR) followed by the graduate program;
(b)To have completed (and to have provided a report confirming completion of) the first four sessions of trauma based therapy (CBT or EMDR) as a condition of the transition from professionally supervised time to supervised time outside the CCS; and
(c)To have completed all of the therapeutic processes and programs provided for at subparagraph (a) herein in order to progress to unsupervised time.
The Mother agreed to undertake the therapy as proposed by the Father but did not agree that the progression of the children’s time with her should be dependent upon her so doing. I am conscious of authorities urging extreme caution as to the circumstances in which ‘stand alone’ orders for therapeutic treatment may be made.[27]
[27] L & T [1999] FamCA 1699; (1999) FLC ¶92-875; Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017.
Ms M opined that ongoing drug testing was appropriate in light of the statistics regarding relapse of illicit drug use, as cited by Dr G, and expressed a view that demonstrated abstinence for at least two and a half years would be required before unsupervised time would be appropriate. Ms M also agreed that if there was a move to unsupervised time too quickly, and then the Mother were to relapse into illicit drug use, there would be significant risks.
Ms M’s evidence was that the Mother’s drug use was likely tied to her mental health and her experience of trauma, and that her mental health was likely having a disorganising impact on her choices and her difficulty with maintaining abstinence, such that she was not adequately addressing the environmental factors which were leading her to relapse. She gave evidence that it would not be a simple task for the Mother to get on top of these issues, that it could be confronting and difficult for the Mother, and that a long period of engaged therapy would be required in order to get her diagnosed conditions under control.
Dr G opined that if she was internally motivated, the Mother was likely to show significant improvement in 12-18 months providing she received appropriate treatment. If she was not compliant with therapy, however, he considered that she was unlikely to improve.
Dr G opined that, following assessment and development of a management plan, the appropriate treatment for PTSD would be either CBT or EMDR, both of which involve confronting the memory of the traumatic event and coming to terms with the experience. With respect to a mental health condition, Dr G indicated that dialectical behaviour therapy was the psychological treatment of choice.
Ms M agreed with these treatment recommendations. She confirmed that it would be important for the Mother to address both conditions at the same time, and confirmed that both CBT (or EMDR) and DBT could progress at the same time, but emphasised that a person would need to ensure that their environment and situation were sufficiently stable to support them through trauma processing, and that ideally trauma processing would come first, because if trauma has not been sufficiently processed, it can interfere with other forms of therapy.
Ms M also opined that ideally, trauma therapy should be underway, with around four sessions undertaken, before drug rehabilitation commenced, because there was a possibility that trauma processing could trigger the maladaptive approach to drugs. However, she also said that this might not be possible and real-life circumstances such as waiting lists and the availability of resources also needed to be considered.
It was submitted on behalf of the ICL that although the Mother’s experience of trauma could be a trigger for her use of illicit drugs, it was ultimately the use of illicit drugs that was the key issue to be addressed to protect the children’s safety. As a consequence, the ICL did not take the position that the progression of the Mother’s time should be conditional upon her undertaking trauma therapy.
It is of significance that one potential consequence of the proposal of the Father is that it could result in there being no time at all between the Mother and children. This would occur if the Mother failed to meet the first requirement for progression beyond professionally supervised time, and the CCS was not willing to continue to facilitate such time on an ongoing basis. It is noted that this might occur as a consequence of circumstances outside the Mother’s control, such as lack of availability of a suitable therapist.
Counsel for the ICL opposed the making of orders which could lead to there being no ongoing relationship at all, emphasising the benefits to the children of maintaining their important relationship with their mother. Counsel for the Father submitted in relation to this possibility that it is simply not possible for the parties or the Court to craft a pathway out of every possible permutation. This is accurate but does not address the concern raised by the ICL, which is shared by the Court.
Counsel for the ICL submitted that, particularly having regard to the fact that the Mother is not an organised person, making the progression of time subject to successful completion of therapy, particularly multiple forms of therapy, might impose a roadblock which she would simply be unable to overcome despite the best of intentions, and that if the Mother’s failure to overcome the requirements in the orders led to no time at all taking place, this would be an outcome that would not be in the children’s best interests. Counsel for the ICL submitted that the issue was not that the protective measures proposed by the Father lacked merit, but that they imposed such a high bar on the Mother that the children’s relationship with her would likely be compromised rather than maintained.
It was emphasised on behalf of the Father that the Mother’s own evidence was that her use of illicit drugs was tied to her mental health, in that she used illicit drugs as a coping mechanism. Counsel for the Father submitted that the effect of Ms M’s evidence was that one issue cannot be solved without solving the other and that both the Mother’s mental health and her drug use needed to be addressed in order for either treatment to be successful. It was submitted that the Father’s proposal struck the appropriate balance between protection of the children and an achievable pathway for the Mother. Counsel for the Father emphasised Ms M’s evidence that the environment of professional supervision would allow the Mother to focus on recovery rather than on the business of parenting.
Counsel for the Father submitted that time between the Mother and the children could only be successful, and their relationship could only be meaningful and safe, if the Mother’s mental health and drug use were appropriately managed, and that she would otherwise remain an unacceptable risk to the children. In particular, it was submitted that until the Mother could demonstrate that sufficient steps were being taken towards improvements in her mental health in addition to having completed the drug rehabilitation program, unsupervised time would not be safe. His Counsel submitted that supervision served an important purpose, such that there should be a reason for moving away from it. He further submitted that, given the Mother’s history of non-compliance with orders of the Court, it was unlikely that without a clear incentive, she would comply with any requirements for treatment.
In addition to consideration of the specific proposals of the parties, consideration of this issue also involves consideration of whether lesser conditions than those proposed by the Father should be imposed in addition to those proposed by the ICL and accepted by the Mother, such that there be a different outcome from that proposed by the parties and the ICL falling within the parameters of the dispute framed by their proposals.
I accept the submissions of Counsel for the Father (informed by the evidence of Ms M), that in order for the drug rehabilitation to have optimal prospects of success in the long term, the Mother will also need to take appropriate steps to address her mental health concerns, and that the two issues are therefore inextricably linked. I also accept the submission of Counsel for the Father that supervision serves an important purpose and should not be abandoned lightly where it has been found to be required and that there needs to be sufficient demonstration of change before a move to unsupervised time will be appropriate. Ultimately, the safety of the children must take priority over the maintenance of their relationship with the Mother.
I also, however, accept the submissions of Counsel for the ICL that if the bar is set too high, and the conditions imposed are too onerous, the result will be that the relationship between the children and their mother will not be maintained, which would be to their significant detriment; and that it would not be in the best interests of the children to impose a regime which entailed a significant prospect of resulting in no time at all between the children and their mother.
In order to strike an appropriate balance between these important considerations, and to ensure that the children’s relationship with the Mother is supported to develop to the maximum extent consistent with their safety, the orders will provide, in summary, that:
(a)The transition to unsupervised time will be conditional upon the Mother completing the recovery program and providing the Father with a hair follicle test clean of all illicit substances; and
(b)The transition to overnight time (which involves not only a longer period but greater parenting demands and stressors and therefore greater risk than unsupervised daytime time) will be conditional upon the Mother providing the two hair follicle tests at six-monthly intervals as describe above; the Mother completing the ‘graduate program’ or such other post-completion program as may be recommended by D Centre following the completion of the recovery program; and the Mother demonstrating have undertaken at least four sessions of either CBT or EMDR and at least four sessions of DBT.
It is noted that the timeframes built into these conditions, together with the time that will be required to complete the conditions themselves, will have the built in protective factor that the orders will progress gradually and the children will be older and thus more able both to self-protect and to report their concerns to the Father or others by the time of each progression.
I am conscious that one possible outcome of the regime provided for in the orders will be that if the Mother cannot meet the conditions for the progression of her time, the children’s time with her will be supervised indefinitely. Many authorities have expressed caution in relation to the desirability of orders providing for indefinite supervision. [28] However, it remains a matter for the Court’s discretion, and I consider it significant that in the present case, there is no doubt that the relationship between the Mother and the children is worth preserving, even if it needs to be subject to protective measures. As a consequence, I do not consider this to be a case where the prospect of indefinitely supervision should be rejected entirely.
[28] See for example, Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375; Slater & Light [2013] FamCAFC 4; Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407; Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924.
Suspension of time?
The Father proposed that the time between the Mother and the children be suspended in the event that she attended handover for supervised time without the nominated supervisor present on two consecutive occasions; withheld the children from the Father without his consent; or returned the children to the care of the Father more than half an hour late on two consecutive occasions. It was submitted on his behalf that such an order would guard against a cycle whereby the children repeatedly showed up and were disappointed by the Mother being unable to spend time with them; guard against and provide a much-needed consequence for overholding by the Mother, thus promoting stability for the children; and provide a disincentive for ongoing breaches by the Mother with respect to the return of the children.
The Mother and the ICL opposed the suspension of the Mother’s time, and particularly strongly so in the event of lateness.
I accept the submission of Counsel for the Father that there needs to be a consequence for the Mother of problematic conduct of this nature, which she has engaged in throughout these proceedings and in relation to which she has demonstrated limited insight, or there is too great a risk that she will continue to do so, which will be to the children’s detriment and undermine both their stability and the workability of the orders.
However, I consider that suspension of the Mother’s time is not the appropriate consequence, because of the disruptive impact it would have on the children’s ability to continue to benefit from their relationship with the Mother and because it has the likely outcome of further litigation, which would be very unlikely to serve the children’s best interests. As a consequence, the orders will provide that if the Mother engages in one of the listed behaviours, the next occasion upon which the children are scheduled to spend time with her will not proceed. This will not only reduce the likelihood of the children’s routine being disrupted by conduct on the part of the Mother, but will provide them with a break in order to reset in the event that such a disruption occurs.
Handovers
There was some consideration given during the course of the parties’ closing submissions as to whether handovers should occur directly between the Father and the supervisor during the period when the children’s time with the Mother remains supervised, to avoid the parties coming into direct contact with one another. This suggestion was agreed to by both the Mother and the Father.
The ICL opposed this on the basis that it would prevent the Father from having ‘eyes on’ the Mother to assess how she was progressing. Ms M gave evidence that there were benefits both to avoiding contact between the parents and to the Father being able to see how the Mother was.
On the basis of the concern expressed by the ICL, an order to that effect will not be made. It is to be hoped that once the court proceedings are over, the capacity of the parties to control their behaviour at handovers such as to avoid engaging in overt conflict in the presence of the children will improve over time.
Return of matter to Court
There was discussion during the course of the parties’ closing submissions about the risk that, given the number of permutations and as-yet unknown outcomes sought to be provided for by way of the orders, there may need to be a mechanism by which the matter may need to be returned to Court.
Although further litigation is very unlikely to serve the children’s best interests and should be avoided by the parties if at all possible, particularly in favour of mediation, I cannot ignore the possibility that the operation of the orders might break down for reasons outside the Mother’s control, such as lack of availability of appropriate services, leaving a situation that did not meet the children’s best interests. As a consequence, the parties will each be provided with liberty to make a further application in the event that the children’s time with the Mother as provided for in these orders is unable to progress by reason other than the Mother having failed to take the necessary steps to procure its progression.
Mediation
The Mother sought that there be a requirement for the parties to attend mediation after the completion of all the treatments proposed to be undertaken by her, with a view to moving towards a shared care arrangement. This proposal was opposed by the Father. The ICL did not express a position in this regard.
I do not propose to make an order as sought by the Mother. Although the completion of the treatments and programs that have been recommended for her would be a significant step towards the Mother providing reassurance with respect to the children’s safety in her care, the Mother’s drug use and mental health are not the only barriers to the likely success of a shared care arrangement.
Other difficulties with that proposal include the extremely volatile and high conflict relationship between the parties (which includes a history of mutual family violence), the lack of communication or cooperation between them, and the Mother’s lack of organisation, which may or may not be addressed by abstinence from drugs and mental health treatment, and which has, in the past, manifested in difficulties in the Mother’s parenting.
Ms M confirmed that the coparenting relationship between the parties was not likely to be compatible with a shared care arrangement, which would require the parties to communicate effectively. She also opined that for shared care to operate successfully, the children would need consistency between households and the state of the parties’ relationship did not suggest that this was possible.
Both parents gave evidence that prior to their separation, they had worked well as a parenting team. It is to be hoped that at some point in the future, they can return to something approximating teamwork. However, the evidence before the Court does not provide a basis for an expectation that this will occur in the short term future.
Should there be a significant improvement in these issues, together with successful completion by the Mother of the various proposed treatments and courses, there would of course be no barrier to the Mother inviting the Father to participate in mediation with a view to revisiting the parenting arrangements.
Injunction with respect to approaching children and extracurricular activities
The Mother’s conduct in arriving at the children’s school concert unannounced in December 2024 gave rise to the need to consider whether there needed to be a specific injunction prohibiting the parties from approaching the children at all during their time in the care of the other parent.
In the witness box, the Mother, who was legally represented at the time of that incident, professed to have been unaware that approaching the children during their time in the care of the Father was not permitted by the orders of the Court, despite the fact that those orders specifically provided that time between the Mother and the children was to take place in the context of professional supervision. I do not accept that the Mother believed that she was not acting in breach of the orders by attending as she did. Rather, I am satisfied that the Mother was acting in wilful disregard of the terms of the orders, as she had done many times before.
Counsel for the ICL supported the proposed injunction.
The Mother opposed the proposed injunction on the basis that it would prevent her from attending school sports days and other events of significance to the children, which she characterised as ‘something a child remembers growing up.’ She proposed a more limited injunction, such as a restriction on the parties approaching each other at such events. Although it was not explicitly sought by her, it was implicit in the Mother’s submissions that she sought an order authorising her to attend extra-curricular events.
The Father supported the proposed injunction with respect to the Mother, but submitted that with respect to himself, the children being in his primary care meant that an unexpected appearance by him would not subject them to the same level of emotional stress as would be the case with the Mother. He proposed that there be restrictions relating to the parties approaching each other if he were to attend events concerning the children and indicated that he would not oppose a restraint on his removal of the children from the care of the Mother.
Balancing all of these legitimate considerations, I am satisfied that the children’s best interests will be met by an order providing that the parties may each attend all extracurricular, school and sporting events involving the children to which parents are ordinarily invited on condition that they do not approach the other. In the case of the Mother, this liberty will commence upon her progression to unsupervised time pursuant to the orders.
There will also be an injunction restraining the Mother from approaching the children while they are in the Father’s care or removing them from his care other than as specifically provided for in the orders.
Other matters
Section 60CG of the Act provides that in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. I am satisfied that the orders I propose to make are consistent with the mutual family violence between the parties insofar as is possible consistently with the children’s best interests, and that they avoid exposing any person to an unacceptable risk of family violence.
In circumstances in which the Mother was on bail and facing serious criminal charges as at the time of the trial, it is possible that, if convicted, she will ultimately serve a sentence of imprisonment, which will interfere with the operation of the orders. This would be most unfortunate for the children but is obviously outside the control of the Court. It is also not possible to factor in every possible contingency which could arise from this potential outcome. It is to be hoped that if this occurs, the parties can agree upon away forward without the need for a return to litigation in this Court.
CONCLUSION
Having regard to all of the considerations as outlined above, I make orders as set out at the commencement of these reasons, which I am satisfied are in the children’s best interests.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 28 January 2025
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