Sinisi & Barbas

[2024] FedCFamC2F 1573

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sinisi & Barbas [2024] FedCFamC2F 1573

File number(s):

SYC 6923 of 2022

Judgment of:

JUDGE TURNBULL

Date of judgment:

20 November 2024

Catchwords:

FAMILY LAW – PARENTING – time with the Father – whether the Father should have regular unsupervised time with the child and if so the nature of such time – whether the Father’s drug use places the child at an unacceptable risk of harm – whether Mother’s capacity to parent is discernibly impacted if the child spends regular unsupervised time with the Father – whether the Father should be involved in the decision making regarding major long-term issues – whether the child’s name should be changed to the Mother’s surname or become a hyphenated version of the Mother and Fathers surnames’ – whether the Father should be restrained from filing further proceedings – whether there should be a ‘guillotine order’ to operate if the Father misses visits.

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

Bant & Clayton [2019] FamCAFC 198

Briginshaw v Briginshaw (1938) 60 CLR 336

Bondelmonte & Bondelmonte (2017) 259 CLR 662

Chapman and Palmer [1978] FamCA 86

Denton & Denton (No 3) [2024] FedCFamC1F 476

Goode & Goode [2006] FamCA 1346

Guthrie & Guthrie (1995) FLC 92-647

Isles & Nelissen [2022] FedCFamC1A 97

Keane v Keane [2021] FamCAFC 1

M v M (1998) 166 CLR 69

MRR & GR (2010) 240 CLR 461

Murphy & Murphy [2007] FamCA 795

Napier & Hepburn [2006] FamCA 1316

Re Andrew (1996) FLC 92-692

Withers & Russell [2016] FamCA 793

Division:

Division 2 Family Law

Number of paragraphs:

174

Date of last submission/s:

26 July 2024

Date of hearing:

5, 6 and 7 June, 17 June and 26 July 2024

Place:

Parramatta – delivered in Hobart

Counsel for the Applicant:

Ms Winfield

Solicitor for the Applicant:

Jacqui Griffin Mobile Solicitor

Counsel for the Respondent:

Ms Kennedy

Solicitor for the Respondent:

Fox & Staniland

Counsel for the Independent Children's Lawyer:

Ms Higgins

Solicitor for the Independent Children's Lawyer:

Bishops

ORDERS

SYC 6923 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SINISI

Applicant

AND:

MS BARBAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	20 NOVEMBER 2024

THE COURT ORDERS THAT:

The Child’s Name

1.X SINISI be known as ‘[X BARBAS]’ born in 2020 (‘the child’), and to give effect to this Order:

(a)The Mother is authorised to apply to the Registrar of Births, Deaths and Marriages in New South Wales (‘the Registrar’), for the child’s name to be registered as X BARBAS;

(b)It is requested that the Registrar, upon the Application of the Mother, give effect to this Order by doing all acts and things necessary to register the change of name of X SINISI born in 2020 to X BARBAS pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW, notwithstanding that the consent of the Father has not been obtained.

(c)The Mother is authorised to provide a copy of these Orders and Judge Turnbull’s Reasons to the Registrar.

With Whom the Child Lives and Decision Making

2.The child shall live with the Mother and the Mother shall be solely responsible for decision making in relation to major long-term issues concerning child.

Information Sharing

3.The Mother will provide the Father with a minimum of thirty (30) days’ notice to relocate the child’s primary place of residence from outside Tasmania with such notice to include the intended city and State where the child will live, NOTING that the child’s relocation must not interfere with the Father’s time set out in these Orders.

4.The Mother will keep the Father updated as to the following:

(a)The name and address of any school which the child attends from time to time; and

(b)The name and contact details of the child’s treating General Practitioner and any other significant healthcare professional which the child attends upon from time to time.

5.This Order acts as authority for any school which the child attends to provide to the Father direct information ordinarily provided to a parent, including but not confined to, school reports, school newsletters, school photograph order forms (at the cost of the Father).

6.This Order acts as authority to enable the Father to attend parent/teacher interviews separately from the Mother for the child and for the Mother to be notified by the child’s school as to the Father’s intention to attend such interview including the proposed date and time.

7.This Order acts as authority for any medical healthcare professional which the child attends from time to time to provide information to both the Mother and the Father as requested and at the individual cost of the requesting parent.

8.The Mother notify the Father in relation to any serious medical diagnosis, surgery requiring the child to undergo general anaesthetic, and/or a life threatening event in relation to the child.

9.Both parties have leave to provide a copy of these Orders and Judge Turnbull’s Reasons to any of their treating health professionals, including any treating psychologist or counsellor.

Parental Communication

10.Save for providing the Mother results of any hair follicle drug testing the Father undertakes pursuant to these Orders, all communications between the Mother and Father is to be confined to matters concerning the child via an agreed parenting app but, failing agreement, via Our Family Wizard parenting App, and within fourteen (14) days both parents will do all acts and things to set up the parenting App.

11.The Father or his agent forward the Mother the results of any hair follicle drug test undertaken pursuant to these Orders to an email address advised by the Mother (‘the Mother’s email address’), with the Mother to provide details of her email address to the Father within seven (7) days of the date of these Orders.

Child’s Identity

12.On or before 1 January 2025, the Mother must inform the child that Mr Sinisi is her biological father and immediately inform the Father when she has done so.

Injunction

13.The Father shall refrain, at all times, from consuming any illicit drugs, including but not limited to the drugs referred to in Order 19, including forty-eight (48) hours prior to, and while the child is in his care.

Father’s Virtual Communication with the Child

14.The Father shall communicate with the child via electronic means, via Facetime or such video medium as agreed in writing, as follows:

(a)Twice a month as agreed or, failing agreement, at 4.00 pm on the first and fourth Sunday of each calendar month;

(b)On Christmas Day, Easter Sunday, and the child’s birthday at 4.00 pm; and

(c)Commencing in 2025 on Father’s Day at 4.00 pm.

15.For the purposes of Order 14:

(a)The Father must initiate the video call to the child;

(b)The call is not to exceed twenty (20) minutes duration;

(c)The Father is not to make comments to the child consistent with being the child’s biological father before 2 January 2025;

(d)The Father is not to ask the child questions about the Mother and/or about the child’s residential address; and

(e)The Father is not to discuss the parenting orders and/or arrangements with the child (save any discussion nature and events of matters occurring during the Father’s previous time with the child or to occur during future time with the child).  

Father’s Time with the Child

16.The Father shall spend time with the child as follows:

(a)Until he can produce a negative hair follicle drug test undertaken in accordance with Orders 18 and 19 (‘negative test’), once a month as agreed and failing agreement on the third Saturday of the calendar month supervised at the City B Children’s Contact Service or such other Children’s Contact Service operating in the place where the child lives, for a period not exceeding two (2) hours;

(b)Upon him producing a negative test, once a month as agreed and failing agreement on the third Saturday of the calendar month on no less than five (5) separate occasions, for a period of four (4) hours, with the handover to take place at the City B Children’s Contact Service or such other Children’s Contact Service operating in the place where the child lives; and

(c)Upon him producing a further negative test undertaken after the completion of his time set out in the previous sub-paragraph, once a month as agreed and failing agreement on the third Saturday of the calendar month for no less than five (5)  separate occasions, for a period of six (6) hours, with the handover to take place at the City B Children’s Contact Service or such other Children’s Contact Service operating in the place where the child lives.

(d)Upon him producing a further negative test undertaken after the completion of his time set out in the previous sub-paragraph, once a month as agreed and failing agreement on the third Saturday and third Sunday of the calendar month for no less than five (5) separate occasions, for a period of six (6) hours on the Saturday and four (4) hours on the Sunday, with the handover to take place at the City B Children’s Contact Service or such other Children’s Contact Service operating in the place where the child lives.

(e)Upon him producing a further negative test undertaken after the completion of his time set out in the previous sub-paragraph, once a month as agreed and failing agreement on the third Saturday and third Sunday of the calendar month, for a period of six (6) hours on each day, with the handover to take place at the City B Children’s Contact Service or such other Children’s Contact Service operating in the place where the child lives;

(f)At such other times and subject to such conditions as agreed in writing.

Hair Follicle Testing

17.Upon the Father’s time advancing to that set out in Order 16(e) and continuing for six (6) occasions, the Father will undertake a further hair follicle drug test and continue to do so every six (6) months thereafter.

18.For the purpose of all hair follicle drug testing referred to in Orders 16 and 17, the Father shall do all acts and things and sign all documents necessary to submit to and undertake a supervised hair follicle test with an accredited testing laboratory (‘the laboratory’) in accordance with chain of custody procedures, for the purposes of obtaining a drug test using the standard 18-Panel Drug Test (broad Panel B) with the results of such testing to be provided to the Mother within 24 hours of issue and for the purposes of this Order the laboratory is instructed to take any samples required (head hair) to cover a period of drug use exceeding six (6) months, if practical, or such other period that is practical for the laboratory to provide.

19.For the purposes of Orders 16 and 17, a negative test is a test that is free from illicit substances including, but not limited to: amphetamine type substances, benzodiazepines, cannabis metabolites, cocaine metabolites and/or opiates (‘illicit substances’).

20.The Father is restrained by injunction from cutting his hair to less than four (4) centimetres in length, or colouring his hair or applying any treatment to his hair that might affect the accuracy of any hair follicle test.

21.Upon attendance at the laboratory for testing, the Father is to:

(a)Provide a copy of these Orders to the laboratory;

(b)Provide the Mother’s email address to the laboratory;

(c)Provide their current Australian Driver’s License or Passport with photo identification confirming his identity; and

(d)Obtain a receipt from the laboratory confirming sighting of these Orders and of the Father’s current Australian Driver’s License with photo identifications.

22.The Father will solely bear the costs of hair follicle testing pursuant to these Orders.

23.This Order shall act as an authority for the Father’s hair follicle drug test results to be released to the Mother.

24.In the event that the Father returns a hair follicle drug test which is positive for the presence of illicit substances, the Father’s time with the child thereafter shall be supervised at the City B Children’s Contact Service or a Children’s Contact Service operating in the place where the child lives, until such time as the Father produces a negative test, upon which his time will resume at the stage of time that he had reached pursuant to Order 16.

Non-Denigration

25.Neither party criticise nor denigrate the other party or the other party’s family in the presence of, or within hearing of, the child and utilise their best endeavours to remove the child from the presence of any third party who is criticising or denigrating the other party or the other party’s family in the presence of, or within the hearing of, the child.

International Travel and Passport

26.The Mother is permitted to take the child out of Australia to a place outside Australia in accordance with section 65Y(2)(b) of the Family Law Act 1975 (Cth).

27.The child is permitted to travel internationally as provided by section 11(1)(b) of the Australian Passports Act 2005 (Cth) and for this purpose, the Mother is permitted to apply for the issue of an Australian passport for the child under the provisions of section 11(4)(b)(i) of the Australian Passports Act 2005 (Cth).

Miscellaneous

28.Save for these Orders, and any extant costs orders, all extant parenting orders are discharged.

29.Save for any extant costs’ applications, all extant proceedings are 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

TURNBULL J

OVERVIEW

1. These are parenting proceedings concerning the child, X (‘[X]’) born in 2020.

2. The Father, Mr Sinisi (‘the Father’), re-initiated proceedings on 30 September 2022 seeking joint decision making in relation to all major long term issues concerning X, as well as time each alternative weekend, half school holidays and on special occasions.[1]

   [1] Case Outline of Mr Sinisi filed 4 June 2024 (‘Father’s Case Outline’).

3. The Mother, Ms Barbas (‘the Mother’), responded seeking sole decision making in relation to all major long-term issues and for the Father to have no time or contact with X.[2] She also sought to change X’s surname from ‘[Sinisi]’ to ‘[Barbas]’. Her position moderated slightly by the end of the trial, proposing that the Father spend time with the child on two to four occasions per year, supervised in Tasmania.

   [2] Case Outline of Ms Barbas filed 3 June 2024 (‘Mother’s Case Outline’).

   BACKGROUND

4. The Father was born in 1983 (40 years of age) and is currently employed as a professional.[3] The Mother was born in 1985 (39 years of age) and is currently employed as a beautician. The Mother and X live in Tasmania, while the Father lives in Sydney, New South Wales.

   [3] Affidavit of Mr Sinisi filed 30 May 2024 [1] (‘Father’s Trial Affidavit’).

5. The parties commenced cohabitation in New South Wales in or about late 2016 and married in late 2017.[4]

   [4] Ibid [4].

6. The Mother alleged that she discovered the Husband’s drug use in late 2019. The parties separated when she left the matrimonial home in early 2020.[5]  The Mother later discovered that she was pregnant and moved back in with the Father in early 2020.[6] In 2020, X was born.

   [5] Ibid [61]; Affidavit of Ms Barbas filed 28 May 2024 [21] (‘Mother’s Trial Affidavit’).

   [6] Mother’s Trial Affidavit (n 5) [23].

7. The parties separated on a final basis on 9 February 2021, with the Mother leaving the former matrimonial home and relocating to Tasmania with X.[7] The Father did not spend any time with X and the Mother took out a provisional ADVO against the Father in early 2022, which was later dismissed. They divorced in mid-2022.

   [7] The Father, in his case outline, states that the parties separated ‘when the Mother took [X] … and relocated to Tasmania.’; Mother’s Trial Affidavit (n 5) [6]; Case Outline of the Independent Children’s Lawyer filed 4 June 2024 (‘ICL Case Outline’).

8. The Father initially commenced property and parenting proceedings on 2 December 2021. An interim hearing regarding the Father’s time with X occurred on 23 February 2022, and Interim orders made on 1 March 2022 providing the Father with weekly supervised time at City B Children’s Contact Service, requiring him to undertake drug testing,[8] and restraining him from using drugs and alcohol 24 hours prior to X coming into his care.

   [8] The interim orders provided that the child live with the Mother and spend supervised time with the Father at the City B Children’s Contact Centre once per week for up to three hours. FaceTime communication three times per week was also ordered. The Father was also ordered to undertake urinalysis and hair follicle drug testing, with it being noted the drug testing orders were made on the basis of contested allegations as to the drug use by the Father. It was further noted that, “The Father’s application to require the Mother and child return to Sydney was refused primarily on the basis of the contested allegations of drug use, associated mental health and family violence, and may be subject to review and revision in future.”; Order of J B Smith in Sinisi & Barbas (Federal Circuit and Family Court of Australia Division 2, SYC9027/2021, 1 March 2022).

9. Shortly after the interim orders were made, the Father wrote to the Mother advising that he no longer intended to continue with the proceedings and stated in a letter, exhibited by Ms Higgins, the Independent Children’s Lawyer (‘ICL’) during the trial, that he would relinquish his relationship with X to the Mother.[9]

   [9] Exhibit ICL2.

10. On 27 April 2022 and 2 May 2022, the Father emailed the Mother providing consent to change X’s name.[10] The Father filed a Notice of Discontinuance on 11 May 2022, with the Mother doing the same on 23 May 2022. The proceedings were finalised on 27 May 2022.

    [10] Mother’s Trial Affidavit (n 5) Annexure S.

11. In mid-2022, the Father commenced proceedings in Local Court of NSW seeking repayment of $17,392.05 from the Mother.

12. The Father recommenced both property and parenting proceedings on 30 September 2022, with the Father claiming that the Mother’s move to Tasmania prevented him from having a relationship with X.

13. The Father also sought Orders for parentage testing pursuant to section 69W(3) of the Family Law Act 1975 (Cth) (‘the Act’), which were made by consent on 8 November 2022.[11] He was confirmed to be X’s biological Father.

    [11] Order of Senior Judicial Registrar Bardetta in Sinisi & Barbas (Federal Circuit and Family Court of Australia Division 2, SYC6923/2022, 8 November 2022).

1. The property proceedings were finalised by consent on 1 February 2023.[12]

   [12] Order of Senior Judicial Registrar Buttriss in Sinisi & Barbas (Federal Circuit and Family Court of Australia Division 2, SYC6923/2022, 1 February 2023).

2. In 2023 the Father married Ms C (‘[Ms C]’), with whom he had a child, D Sinisi (‘[D]’) born in 2023. 

3. An Independent Children’s Lawyer (ICL) was appointed on 8 March 2023 and a Family Report was ordered on 10 May 2023 and released 2 May 2024.[13] A Child Impact Report was ordered on 1 August 2023 and released 5 October 2023.[14] The Father commenced supervised time with X in May 2023, after a gap of two and a half years.

   [13] Family Report of Ms F dated 30 April 2024 (‘Family Report’).

   [14] Child Impact Report of Ms G dated 4 October 2023 (‘Child Impact Report’).

4. On 29 November 2023 interim orders were made, following a contested hearing, for the child to live with the Mother and spend supervised time with the Father each fortnight for at least one hour, with the opportunity to build up to non-supervised time to five hours,[15] conditional upon him producing negative hair follicle drug tests.

   [15] Order of J Turnbull in Sinisi & Barbas (Federal Circuit and Family Court of Australia Division 2, SYC6923/2022, 29 November 2023).

5. In December 2023 the Father completed a hair follicle test and tested positive for illicit drugs. In January 2024 the Father completed a further hair follicle test and returned a negative result. A number of requests were then made for the Father to complete nail testing for drugs. In February 2024 he completed a hair follicle test, where he again tested positive to illicit drugs, but did not disclose the results.

6. On 9 May 2024, Dr E, a pharmacologist, was appointed as the Single Expert and produced a report on 23 May 2024 interpreting the Father’s drug testing results.[16]

   [16] Report of Dr E dated 23 May 2024 (‘Single Expert Report’).

7. Due to the Father failing a number of drug tests, his time with the child has remained supervised at City B Children’s Contact Service.

8. The trial commenced on 5 June 2024 and lasted for a total of five days over the following month and a half, with final submissions received on 26 July 2024.

   EVIDENCE

   The Father’s Case

9. The Father relied upon:

   ·His Amended Initiating Application filed 31 July 2023;

   ·His Trial Affidavit filed 30 May 2024;

   ·Affidavit of Ms C filed 30 May 2024;

   ·Various Exhibits; and

   ·Case Outline.

   The Father

10. In his affidavit, the Father was dismissive of the Mother’s concerns, particularly as to his drug taking, showing little insight as to the impact of his own behaviour and the fact that his own actions had led to him spending little time with X since separation and causing the Mother to have a hardened view of him. Notwithstanding the focus on the Father’s drug use during the two years of the litigation, he devoted only a few paragraphs of his affidavit to the subject, including;

    I have always admitted that both I and [Ms Barbas] have previously done [illicit drugs], socially/recreationally only.

    It is disturbing that [Ms Barbas] continues to promote my ‘recreational’ use of [illicit drugs] whilst simultaneously refusing to admit to her our recreational use.

    I have never had an issue with drugs, nor have I been considered or classified as drug addict. I take my health and fitness seriously and would never let something like drugs ruin my life.

    I have good career that requires extreme dedication and factual accuracy. Regular use or addiction to [illicit drugs] would almost certainly render my career over.[17]

    [17] Father’s Trial Affidavit (n 3) [48]-[51].

11. This contrasted sharply with his affidavit of 17 February 2022, where stated twice in the same paragraph, “I have never taken drugs.”[18] If the Father had not lied about his drug taking and had committed to not using drugs from that point, the Court’s focus would not be on whether he should be allowed to have a relationship with X, but rather the nature of his extended and likely unregulated time.

    [18] Exhibit M2: Father’s Affidavit Filed 17 February 2022, [65].

12. Under cross-examination, he eventually accepted that he had not been forthcoming with the Mother nor the Court in relation to his drug use and seemed to accept that his actions had led to the Mother having no trust in him whatsoever, although he also said that the feeling was mutual.

13. Although finally showing some insight as to the impact of his behaviour on the Mother, it was an epiphany that should have come years before. There remains a considerable amount of work for him to do to establish that he can commit to an approach focused on X’s needs, rather than his own. I treat his evidence with caution.

    Ms C

14. Ms C, who is an educator, presented as articulate and kind. She was most complementary of the Father as both a husband and a father to D. Under cross-examination, she was candid about the Father’s drug taking, but claimed that he did not partake in illicit drugs in the presence of her nor D. Unfortunately, she was less candid with Ms F during the Family Report process and she conceded that she had not told Ms F, nor the Court, the truth when she claimed that the Father did not take drugs.[19] I accept that she was trying to emphasise the Father’s attributes, but this lie diminished her credibility, and unfortunately, did nothing to instil confidence in the Mother that she would take action if the Father presented affected by drugs in X’s presence. In fact, she was somewhat of an apologist for the Father’s desire to use illicit drugs and I was left with some concern that she does not fully understand the risk to X of the Father being under the influence of drugs if she was in his care, and the consequent impact upon the Mother.

    [19] Family Report [29].

15. Notwithstanding this concern, I accept that she has a desire to form a relationship with X and for D to do the same. I also accept that she hopes, one day, to have a working relationship with the Mother, notwithstanding the lack of trust that she has created. I give her evidence some weight, particularly in relation to her own experiences of the Father.

    The Mother’s Case

16. The Mother relied upon:

    ·Her Amended Response filed 24 May 2024;

    ·Her Trial Affidavit filed 24 May 2024;

    ·Affidavit of Mr H filed 24 May 2024;

    ·Various Exhibits; and

    ·Case Outline.

    The Mother

17. The Mother presented as strong and determined although somewhat exhausted by the litigation. The Mother answered questions put to her directly and made appropriate concessions. The Mother expressed ongoing concern for the welfare of X if she were to have anything but the most limited time with the Father, seeing little value to his presence in her life. To her credit, the Mother accepted that X enjoyed her video and physical time with the Father, and that she had likely formed a bond with him that would cause her ‘loss’ if her time with him were cut off. Notwithstanding these concessions, her rigid thinking prevented her from being able to consider that there may be real benefits, and possible long-term negative consequences, for X if she does not have a building connection with the Father. Her view of the Father had hardened after many years of experiencing his difficult, and at times, deceitful behaviour, such that she now is unable to objectively consider the concept of X developing a relationship with him. Consequently, her concerns regarding X’s safety in the Father’s care seemed disproportionate to the actual risk, particularly if significant regulation is in place around his drug use.

    Mr H

18. Mr H is the Mother’s father. He and Ms J, the maternal grandmother, live in Tasmania and provide considerable support to the Mother. Under cross-examination, he presented as a fierce defender of the Mother and he clearly has little regard for the Father. He and the maternal grandmother have had significant involvement in the care of X, including overnight care when the Mother works in Sydney, resulting in a strong relationship with X:

    My wife and I have a loving and affectionate relationship with our granddaughter [X] who puts the ‘sparkle’ in our lives. Our deep bond with [X] gives us joy, fun and pride in her development and we observe the same between [Ms Barbas] and [X].

    [X] has now lived with us for over three years. During this time she has grown from a baby, to a beautiful young toddler, to a now radiant and playful preschooler.[20]

    [20] Affidavit of Mr H filed 24 May 2024, [32], [33].

19. I accept his evidence so far as it relates to his observations of the impact of these proceedings upon the Mother, and his relationship with his grand-daughter.

    The Independent Children’s Lawyer’s Case

20. The ICL relied upon:

    ·Single Expert Report of Dr E;

    ·Family Report of Ms F dated 30 April 2024;

    ·Child Impact Report of Ms G dated 4 October 2024;

    ·Orders of Judge Turnbull dated 29 November 2023;

    ·Orders of Judge Smith dated 1 March 2022;

    ·A Tender Bundle;

    ·Subpoena material produced by K Centre; 

    ·Subpoena material produced by the L Centre; and

    ·Case Outline.

    Dr E

21. Dr E (‘[Dr E]’) is a pharmacologist, appointed as a Single Expert to examine the Father’s numerous drug screening tests and interpret the same. Under cross-examination he presented as deeply knowledgeable in his field.

22. Dr E’s report provided important information regarding the Father’s drug test results:

    5.8 Interpretation of drug test results for the Father:

    Urine tests: Only one of the Father's urine tests from February 2022 to April 2023 was positive for any of the drugs specified under the Australian Standard AS/NZS 4308:2008 (which includes [various illicit drugs]). As discussed below (6.6) the positive test result [in] April 2023 can be attributed to use of pseudoephedrine, an over the counter (Pharmacist only) medication for colds and hay-fever.

    Urine testing is useful for detection of relatively recent use (days) of a range of prescribed and widely abused illicit drugs that can produce cognitive and psychomotor impairment. In Australia, urine collection procedures, drug screens and confirmation tests are mandated by the Australian Standard, ASNZS 4308:2008, and the recently released revision, ASNZS 4308:2023. ASNZS 4308:2008 mandates urine screening using a commercially available range of screening test cups that use immunoassay technology to detect the following drug types at point of testing: Amphetamine type substances, benzodiazepines, cannabis metabolites, cocaine metabolites and opiates. At the nominal cut-off levels of the tests, individuals engaged in impairing use of any of these drugs will typically be detected for 2-3 days after use (Verstrate, 2004), e.g. cocaine use is typically detected for up to 2 days after occasional use. Heavy use of some drugs such as cannabis and benzodiazepines can be detected for much longer (up to several weeks) so such tests are useful for detection of serious, active cannabis or benzodiazepine abuse patterns.

    Immunoassay screening technologies cannot determine the exact drug involved and are also subject to potential false positives, e.g. many amphetamine-like stimulants can cause a positive result on screening whether or not the drug is illicit or can cause impairment. AS/NZS 4308:2008 therefore mandates laboratory confirmation by technology that can unequivocally determines the drug/s molecules involved in a positive screening test. Mass spectrometric procedures are mandated, usually LC/MSMS. If the target molecules are identified above a threshold, a positive result is recorded and the drugs used can be interpreted. Test results are only forensically valid if this step is undertaken. Confirmation testing is only undertaken if the initial screening test is positive because it is an expensive procedure.

    Drug users often understand that they are unlikely to be detected if they abstain for 2-3 days before a known scheduled test or if they deliberately delay testing beyond a date mandated by Orders, if drugs have been used in the day or two before a test is requested.

    The frequency of urine tests for the Father provide little information concerning his ongoing drug use and would be of high value only if drug use was suspected on a particular occasion, or if Orders for testing were fully randomized. For example insertion of the phrase " ... on average ... " into" ... 23. Such a request shall occur not more often than once per fortnight on average ... " of the Orders made on 1 March 2022 (5.3 above) would ensure that there is a possibility that a test for drug abuse would be possible in the two weeks after a mandated urine test.

    Hair tests: Hair tests have the potential advantage of detection of historical use of a large range of drugs but this depends on the selection of testing organization and drug panels chosen (and paid for). The usual hair sampling procedure requires 4 cm (approximately) sample from the scalp to end of sample, which represents a record of a little over 3 months of drug use because hair grows at approximately 1 cm per month (and takes approximately 2 weeks to grow from the root to the scalp surface). This has the advantage that 2-3 monthly tests can provide a thorough ongoing record of serious drug abuse. Sensitivity is usually quite high for more than low occasional use levels of most drugs, with some exceptions, e.g. cannabis metabolites are poorly incorporated into hair so sensitivity to occasional use is very poor.

    It is possible to evade hair drug tests by tampering with hair using dyeing, bleaching or straightening agents. Dyeing and/ or bleaching can both greatly reduce the concentration of drugs in hair samples and can reduce drug concentrations by over 90% (Pritchett & Phinney, 2015). Dyeing has a milder effect than bleaching but also reduces drug concentrations (ibid.). Other products used for cosmetic treatments, such as permanent waving or relaxing chemicals cause hair damage and affect drug content (by loss) or directly affect drug stability (e.g. Cirimele et al., 1995). The same effects are true for all drugs retained in hair because the processes cause both chemical modification of the drugs embedded in the hair matrix, destroying the drugs themselves and disrupt the integrity of the matrix leading to leaching of drugs from the hair. Any testing orders concerning hair sampling should require the parties to abstain from dyeing and/or bleaching of their hair for the entire period that Orders are in place.

    The Father's hair tests revealed a pattern of ongoing use of [certain illicit drugs] and occasional use of [other illicit drugs]. [Illicit drug] abuse is readily detected in urine up to 2-3 days after use because the […] drug screening test captures [this type of illicit drug] and confirmation testing specifically identifies it. It is also detectable in hair after use of several doses in the preceding 3 months.

    Positive results for [illicit drugs] occurred in March 2022, May 2023, December 2023, January 2024 and February 2024. It should be noted that all of these test results, except in February 2024, did not greatly exceed the detection threshold of the test (500 pg/mg for [illicit drugs]), suggesting that the Father's use of [illicit drugs] was occasional and certainly not daily (Henderson et al., 1998; Scheidweiler et al., 2006). This interpretation is also supported by the negative tests, perhaps just below the 500 pg/mg thresholds for detection, [in] February 2022, […] May 2023 and […] January 2024, in close temporal proximity to positive tests.

    As discussed below (6.7), the Father did not comply with the mandated frequency of Orders and did not maintain a sufficient head hair length to obtain samples at the required 95 day intervals, or alternatively there was evidence to the sample collecting agency of tampering with head hair by dyeing or bleaching his hair.[21]

    (Emphasis added)

    [21] Single Expert Report (n 16) 8-10.

23. This evidence left me with no doubt, in the circumstances of this case, that the Father’s time with X must be conditional upon him producing negative hair follicle drug tests, as opposed to urine analysis tests. Dr. E was an impressive witness, and I give his evidence significant weight.

    Ms G

24. Ms G is a Court Child Expert who authored a Child Impact Report dated 4 October 2023. She was not required for cross-examination.

25. Ms G interviewed the parties and met with X in September 2023. By that time, the Father had recommenced spending time with X at City B Children’s Contact Service, after being absent from her life for the previous two and a half years.

26. Her observations of the Father and X showed some promising signs of a developing relationship:

    When observed with her father, it was clear that this was a newly established but safe relationship for [X]. [X] was more rambunctious with her father, running and squealing loudly during play with him. [Mr Sinisi] encouraged [X] to use a softer tone, but she was too excited with the play to respond to his directions. [X] was observed to at times test the boundaries of play with [Mr Sinisi] to assess what she was allowed to do, and [Mr Sinisi] was observed to appropriately support and direct [X] at all times. It was clear that this was a positive engagement and relationship for [X] and that she was growing in confidence in her interactions with her father.[22]

    [22] Child Impact Report [14].

27. Given the risk issues identified, including the Mother’s concerns regarding family violence and the Father’s drug use, Ms G recommended:

    There would likely be benefit in having the current time arrangements continue for the next several months before moving to regular extended daytime blocks for several months and then progressing to overnight time in Tasmania with [Mr Sinisi] on a regular basis. It is likely that such an arrangement would meet [X]’s developmental needs and ensure her safety and well-being as she continues to develop her burgeoning relationship with her father. Given [Ms Barbas] travels regularly to Sydney, including weekends for her work there may then be the opportunity for [X] to spend time in her father’s care in Sydney which will familiarise her to his home environment and further support their ongoing relationship and [X]’s security and safety as she commences spending time with her father in his home environment.[23]

    (Emphasis added)

    [23] Ibid [33].

28. Ms G provided an insightful report to which I give significant weight.

    Ms F

29. The Court Child Expert, Ms F (‘[Ms F]’) provided a comprehensive report, deeply considering the nuanced issues present in this case. In her Report of 2 May 2024, she opined that X should be permitted to develop a relationship with the Father, Ms C, and D, through a process of building unsupervised time:

    It is suggested [X]’s time with [Mr Sinisi] progress to semi supervised, as it would ensure safe changeovers and initially provide support for both [Mr Sinisi] and [X] in such contact. It would also provide [Ms Barbas] reassurance regarding [X]’s safety during these initial stages of [X] building a relationship with [Mr Sinisi]. It appears unlikely that such time would allow [X] to be in an unsafe environment or and if there were to be any risks to [X] such concerns would likely be mitigated in that environment. In the absence of significant risk factors in relation to [Mr Sinisi] and on the basis that he is testing negative to any current illicit substance use in current hair follicle tests it is suggested that time progress to periods of three to four hours at a time and extend to full day visits unsupervised by the time [X] reaches five years of age. Should [X]’s time with [Mr Sinisi] be progressing well and in the absence of significant risk factors, once [X] reaches the age of six time could progress to overnights. This time could occur in Tasmania, or in NSW if daytime contact has first been established in NSW. Handovers that continue to be facilitated by the Children’s Contact Service on an ongoing basis would offer a level of protection and support for the parents and for [X] in navigating transitions.[24]

    (Emphasis added)

    [24] Family Report [77].

1. Under cross-examination, Ms F qualified her evidence, confirming that her recommendation was predicated upon the Father clearly demonstrating that he was drug free and compliant with the Court orders. This was a process that was likely to take some time:

   … There would need to be, yes, information to show that [Mr Sinisi] is, I think, as I’ve discussed before, sustaining from using drugs, that he be abiding by the orders, that there would potentially be, you know, some sort of understanding and recognition of his drug use and potential to try and change, and I guess the impact on [X] as well.

   … So obviously, no, I wouldn’t support it if he did not recognise that and in the context of it being unsupervised.

   … if [Mr Sinisi] is not acknowledging or, you know, he’s seeking support, and yes, I would be concerned about moving to unsupervised, but if he were able to acknowledge and understand the risks of [X] and attempting to try and change his behaviours, then maybe in future there might be some opportunity for that. But again, it would be, yes, surrounding all of that.[25]  

   [25] Transcript 7 June 2024, 36.

2. Ms F also emphasised the importance of predictability:

   I think what came across my mind, your Honour, was predictability as well. So, we know, routine, predictability, can, yes, I think that’s really good and useful for all children, no matter what age. So I would say that yes, if it is consistent and predictable, then the toleration of longer periods, yes, would be fine, rather than it being, say, once a week or once every fortnight, randomly. Yes, that would – because again, the timing between would even be longer anyway or there would be – yes.[26]

   [26] Ibid 44.

3. Ms F was an impressive witness, appropriately considering all the matters put to her. I give her evidence significant weight.

   STANDARD OF PROOF

4. I note briefly before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.

5. Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remains relevant and authoritative:

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

6. I must ground my assessment of the child’s best interests in facts, of which I am persuaded, on the balance of probabilities.

   ISSUES FOR DETERMINATION

7. The major issues at trial were:

   ·Whether the Father poses an unacceptable risk of harm to X if he has growing unsupervised time, building to overnight time with her and what measures, if any, should be taken to mitigate the risk;  

   ·Whether the Father should be jointly involved in the major long term decisions affecting X; and

   ·Whether X’s surname should be changed to the Mother’s surname.

   THE LAW

8. This Court must craft and consider the terms of a parenting order with regard to the child’s best interests as a paramount consideration.[27] I am not bound by the terms proposed by the parties and may — subject to the pathway set out in the Family Law Act 1975 (Cth) (‘the Act’) Part VII, and particularly sections 65DA and 65DAB — create parenting orders as I think are proper in the circumstances.[28] What, however, guides the assessment of the child’s best interests? How, once the best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?

   [27] Family Law Act 1975 (Cth) (‘FLA’) s60CA.

   [28] FLA (n 27) s65D(1).

9. The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to the child’s best interests. Crucially, the underlying principles reflect and seek to acknowledge the child’s human rights.[29] Part VII of the Act, to give effect to a child’s best interests, carves a legislative pathway. The pathway has several substantive stepping-stones which may be legitimately and properly followed in various forms.[30] I will follow the path set out in in the recently amended legislation, in accordance with the approach directed in MRR & GR (2010) 240 CLR 461, which remains authoritative.[31]

   [29] FLA (n 27) s60B(b), to give effect to the Convention on the Rights of the Child, the Australian Government Department of Social Services has created a pamphlet titled ‘Rights of Children and Families’ which summarises the child’s rights set out in the Convention as:

   [30] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.

   [31] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

   The Child’s Best Interests

10. Children’s matters are governed by part VII of the Act. Section 60CA of the Act states that in deciding whether to make a parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.

11. When determining the parenting arrangements, the Court must consider the factors in section 60CC(2), known as the ‘general considerations’ and (3) if the child is an Aboriginal or Torres Strait Islander child:

    (2) For the purposes of paragraph (1)(a), the court must consider the following matters:

    (a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

    (i)        the child; and

    (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

    (b)       any views expressed by the child;

    (c)the developmental, psychological, emotional and cultural needs of the child;

    (d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

    (e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

    (f) anything else that is relevant to the particular circumstances of the child.

    (2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

    (a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

    (b) any family violence order that applies or has applied to the child or a member of the child’s family.

    Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture

    (3) For the purposes of paragraph (1)(b), the court must consider the following matters:

    (a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

    (i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

    (ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (iii) to develop a positive appreciation of that culture; and

    (b) the likely impact any proposed parenting order under this Part will have on that right.

    (Original Emphasis)

    Section 60CC(2)(a)(ii): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of each person who has care of the child (whether or not that a person has parental responsibility for the child)

12. Recently, Justice Altobelli in Denton & Denton (No 3) [2024] FedCFamC1F 476, examined, in the context of an interim hearing, the approach to be taken regarding safety for of a child, given the recent changes to the legislation:

    29.Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of a child and each person who has care of the child (whether or not a person has parental responsibility for the child).

    30. “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a 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.

    31. In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.

    32. The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Illes & Nelisson [2022] FedCFamC1A 97 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).

    33. The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao [2018] FamCAFC 252; (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).

    (Emphasis added)

13. It is my task to ensure that the ultimate parenting orders promote X’s safety and do not place her at an unacceptable risk of harm, including risk due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm including any risk of family violence, abuse, or neglect[32] (or any unacceptable risk thereof) is intertwined with the paramountcy principle.

    [32] FLA (n 27) s4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.

14. The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[33] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[34] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[35] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under section 65D by reference to the child’s best interests:

    The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[36]

    [33] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198 [38]-[41].

    [34] Isles & Nelissen [2022] FedCFamC1A 97 [46]-[51], [86]; Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 (‘EA’).

    [35] Isles & Nelissen (n 34) [83].

    [36] Isles & Nelissen (n 34) [85].

15. The question before me is, therefore, whether X will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be unsafe in the Father’s growing unsupervised care, because of the risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable.’[37] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk.’[38] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised, but ultimately they must promote the child’s safety.

    [37] M v M (n 33) 77-78, at which their Honours state that ultimately, the Court’s task is to assess the magnitude of risk and that “After all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare,” and that, “The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.” I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off ‘possibilities’ in a prospective sense, affirmed by the Full Court on appeal.

    [38] Murphy & Murphy [2007] FamCA 795 [318]–[319].

16. The primary risks identified by the Mother in her Case Outline[39] were:

    ·The Father’s use of drugs;

    ·The Father’s poor mental health; and

    ·The Father’s family violence towards the Mother.

    [39] Mothers Case Outline Filed 3 June 2024 [10].

    The Father’s Drug Use

17. Under cross-examination the Mother identified the Father’s drug use as the main risk to X — a position she also expressed in her affidavit:

    132. I am extremely concerned about [X] spending unsupervised time with [Mr Sinisi]. My biggest concern is that [Mr Sinisi] throughout his affidavit evidence has failed to address or mention any of his consistent drug use which he regularly engaged in throughout the relationship. Instead, he attempts to portray this picture that he is ignorant of why I decided to leave the marriage without having any insight into his own behaviour and my legitimate concerns that he poses an unacceptable risk to [X]. [Mr Sinisi] has consistently denied in all of his filed material before the court that he had no past problems with drug or alcohol abuse. He has also deliberately hidden from me and this Honourable court several positive drug results which no one would have known about had it not been produced pursuant to a subpoena. It concerns me that [Mr Sinisi] would deliberately seek to hide this from the court demonstrating that he has no insight into his drug addiction.[40]

    [40] Mother’s Trial Affidavit (n 5) [132].

18. The Mother explained in her affidavit that the Father was aggressive and violent during the relationship, particularly when under the influence of drugs:

    31. As set out below in specific examples, [Mr Sinisi] could not effectively manage his use of [illicit drugs]. His behaviour was erratic, and he was verbally abusive and threatening towards me which I consider to be side effects of the drugs.

    …

    37.[Mr Sinisi] was extremely aggressive and threatening towards me throughout the relationship. Some specific examples are as follows:

    a. When I first decided to leave [Mr Sinisi] after finding out his drug use, on 3 January 2020, he threatened to ruin my business and changed the locks stopping me from entering the property to gather my belongings. [Mr Sinisi] and my father, [Mr H], exchanged in email correspondence regarding our separation and [Mr Sinisi] acknowledged that he threatened to destroy my business and that he changed the locks. Annexed and marked "E" is a true copy of this email from [Mr Sinisi] to my father on 6 January 2020. [Mr Sinisi] also sent me an email on 3 January 2020 demanding that I pay him $612.69 per week for 52 weeks to reimburse him for expenses which he asserted that he spent on me during our marriage. Annexed and marked "F" is a true copy of this email from [Mr Sinisi] on 3 January 2020.

    …

    c. During my pregnancy, [Mr Sinisi] would often stay up until the early hours of morning in a visibly affected drug induced state. [Mr Sinisi] would then come into the bedroom where I was sleeping and have a shower with the door open. He would then continue to lay next to me purposedly shining his phone light on my face. This affected my pregnancy greatly, as most nights I barely got any sleep.

    d. Following heated arguments about [Mr Sinisi]'s drug use, [Mr Sinisi] would often berate me saying words to the effect of "I hope you get postnatal depression" and "you look disgusting with your fat thighs, and I hate when they rub together when you walk.” [Mr Sinisi] would often swear and yell at me in front of [X] creating a hostile environment. His tone and his demeanour was intimidating, and I felt threatened that he was going to hit me. In one particular Facebook message on 14 November 2020, [Mr Sinisi] said to me "honestly, you are the nasty bitch I've ever met and I can't wait to your patents (parents) die.” Annexed and marked "G" is a copy of this message dated 14 November 2020.

    38.The above list is not specific as to every event that occurred during the relationship in which [Mr Sinisi] was threatening or abusive. [Mr Sinisi] was regularly under the influence of drugs where he was unable to function. [Mr Sinisi] was more erratic and abusive when he was using drugs which resulted in many arguments.[41]

    (Emphasis added)

    [41] Mother’s Trial Affidavit (n 5) [31], [37], [38].

1. Ms F noted the likely connection of drug taking to the Father’s poor behaviour:

   73. It is important to consider family violence in the context of [Mr Sinisi]'s alleged illicit drug use, behaviour that may contribute to though not cause increased aggression and impulsive behaviours, which can escalate conflicts with families and potentially lead to poor coping strategies, increased emotional dysregulation and ultimately violent behaviour which may be relevant in regard to [Mr Sinisi] and [Ms Barbas]’ relationship. In her own assertion, [Ms Barbas] alleged that when [Mr Sinisi] was, from her perspective, substance affected his behaviour was increasingly unpredictable and erratic. Thus in the context of his reported current abstinence from illicit substance use, this precipitating risk factor to increased aggression may currently be ameliorated.[42]

   [42] Family Report (n 13) [73].

2. The Father initially denied that he used drugs[43] but later sought to explain away the Mother’s concerns, stating that the Mother also used drugs and may even continue to use drugs.[44] The Father also denied that he had acted in any way that might be regarded as violent towards the Mother, and claimed that it was the Mother who had been aggressive towards him:

   [Mr Sinisi] denied ever perpetrating family violence towards [Ms Barbas] and reported that [Ms Barbas] has been belittling and denigrating towards him, giving the examples of [Ms Barbas] telling him to suicide by saying “why don’t you do it like your mother did”. [Mr Sinisi] reported that he and [Ms Barbas] had “checked out” of the relationship at the same time and knew that it wasn’t working. He explained that though he knew that he and [Ms Barbas] were not on good terms he was surprised that she moved to Tasmania with [X] without telling him.[45]

   [43] Father’s Affidavit Filed 17 February 2022 (n 18) [65].

   [44] Father’s Trial Affidavit (n 3) [39]-[49].

   [45] Family Report (n 13) [39].

3. To corroborate the Mother’s position about the Father’s drug use, Ms Kennedy, Counsel for the Mother, provided the Court with an aide memoire (‘the Mother’s aide memoire’) setting out the schedule of drug testing undertaken by the Father, including his non-disclosure of some of the results — which I extract here:[46]

   [46] Exhibit M4: Schedule of Drug Test Requests and Results Provided by the Applicant (‘the Mother’s Aide Memoire’).

Date sample collected/ Request Made	Specimen Type	Integrity notes	Drug results	Nature of Disclosure
Sample Collected early 2/22	Head hair M Clinic 5 panel test	l .5 cm of hair collected represented ~ previous 6-8 weeks	Negative screen for 5 major drug classes. No further testing.	Voluntarily disclosed
Sample Collected early 2/22	Urine per AS/NZ:4308 -2008 L Centre	Creatinine normal other integrity tests  normal	Screening test negative for 7 drug classes or types. No further testing.	Voluntarily disclosed
Sample collected early 3/22	Head hair M Clinic 18 panel test	2.5 cm of hair Collected Represented Previous 2-3 months	Positive screen and positive for illicit drugs and its body breakdown products (metabolites) by mass spectrometry: Illicit drugs 792 pg/mg Illicit drugs 77 pg/mg Illicit drugs and alcohol 62 pg/mg Illicit drugs 7.3 pg/mg Illicit drugs 4.1 pg/mg	Not disclosed - only produced on subpoena to the L Centre.
Sample collected early 3/22	Urine per As/NZ:4308 -2008 …	Creatinine normal other integrity tests normal	Screening test negative for 7 drug classes or types. No further testing.	Voluntarily disclosed
Consent orders made 8 March 2023	By consent the Father agreed to orders to share his urinalysis test results with the Respondent Mother from his employment for the last 6 month period.
Sample collected late 3/23	Urine per AS/NZ:4308-2008 …	Creatinine normal other integrity tests normal	Screening test negative for 6 drug classes or types. No further testing.	Voluntarily disclosed
Sample collected mid- 4/23	Urine per As/NZ:4308-2008	Creatinine normal other integrity tests normal	Screening test positive for illicit drugs -type stimulants. Confirmed by mass spectrometry to be peudoephedrine > 3000 ug/L	Voluntarily disclosed
Sample collected early 5/23	Head hair N Clinic 6 panel screening test	2 cm of hair collected and represented ~ previous 2-2.5 months	Positive for illicit drugs. Positive screen and positive for illicit drugs and its body breakdown products (metabolites) by mass spectrometry: Illicit drugs 233 pg/mg Illicit drugs 424 pg/mg Illicit drugs 407 pg/mg	Voluntarily disclosed
Sample collected mid- 5/23	Head hair M Clinic Laboratories 5 panel test	1.9 cm of hair collected represented ~ previous 6-8 weeks	Negative for 5 major drug classes (N.B. cut-off level for screen testing illicit drugs and its metabolites was 500 pg/mg)	Voluntarily disclosed
Request made for HFT mid- August 2023	Request from Mother's legal representative.			Nil testing
Request made for HFT late August 2023	Request from Mother's legal representative.			Nil testing.
Request made for HFT late August 2023	Request from Mother's legal representative.			Nil testing.
Request made for HFT late November 2023	Request from Mother's legal representative.			Nil testing.
Orders of Turnbull J 29 November 2023	Order 9(a) The Father do all things and sign all documents necessary to undertake a supervised hair follicle test
Sample collected early 12/23	Body hair M Clinic 18 panel test	Only body hair collected, see interpretation below	Positive screen and positive for illicit drugs and its body breakdown products (metabolites) by mass spectrometry: Illicit drugs 670 pg/mg Illicit drugs 236 pg/mg Illicit drugs and alcohol 101 pg/mg Illicit drugs 3.8 pg/mg Illicit drugs 2.8 pg/mg	Voluntarily disclosed However not compliant with Orders made 29 November 2023, sample collected after the 7 day time frame
Request made for Nail Test mid-December 2023	Letter to W Lawyers of same date.			Nil testing.
Request made for HFT mid-December 2023	Request from Mother’s legal representative.			Nil testing.
Sample collected mid- 1/24	Body hair M Clinic 18 panel test	Only body hair collected, see interpretation below	Negative screen for 5 major drug classes (N.B. cut-off level for screen testing illicit drugs and its metabolites was 500 pg/mg)	Voluntarily disclosed
Request made for Nail Test mid-January 2024	Letter to W Lawyers of same date			Nil testing
Request made for Nail Test late January 2024	Letter to W Lawyers of same date			Nil testing
Request made for Nail Test early February 2024	Letter to W Lawyers of same date			Nil testing
Sample collected mid- 2/24	Body hair M Clinic 18 panel test	Only body hair collected, see interpretation below	Positive screen and positive for illicit drugs and its body breakdown products (metabolites) by mass spectrometry: Illicit drugs 1564 pg/mg Illicit drugs 338 pg/mg	Not disclosed – only produced on subpoena to the L Centre.

1. The Mother’s aide memoire confirmed the Mother’s position as set out in her affidavit that the Father regularly failed to undertake required drug testing and sought to conceal some of the results:

   81.[Mr Sinisi] did not comply with the first interim orders. He did not see [X], and to the best of my knowledge at the time, he did not complete the required hair follicle tests. It appeared obvious to me at the time that [Mr Sinisi] did not intend to undertake in the court ordered drug testing as he knew that he would test positive and that my allegations that he was a regular drug user of illicit drugs would prove truthful.

   82. However, I later became aware through a subpoena issued by the Independent Children’s Lawyer on 25 March 2024 to the [L Centre] that [Mr Sinisi] had indeed completed a hair follicle test [in] March 2022 following the first interim hearing. I viewed the documents produced pursuant to the subpoena and understand that [Mr Sinisi] tested positive to [illicit drugs]/Metabolites on this occasion. Annexed and marked "Q" are a copy of these results completed by  [Mr Sinisi] [in] March 2022.

   83. These […] March 2022 results were not disclosed to me by [Mr Sinisi] or any legal representative that [Mr Sinisi] had engaged throughout these proceedings, and I only became privy to this information once the subpoena documents were produced to the court in April 2024.  [Mr Sinisi] has made no mention of this positive result in any of his filed court documents before the court and has simply tried to pretend that it did not happen. For example, in an Affidavit filed by [Mr Sinisi] on 16 June 2023, [Mr Sinisi] said at paragraph 42:

   "In the course of the first proceedings;

   a. I submitted to urinalysis in February 2021 and produced a negative result;

   b. I submitted to urinalysis and hair follicle testing in February 2022, and produced a negative result for each;

   c. I submitted to urinalysis in March 2022, and produced a negative result".

   There is no mention that he failed a drug test [in] March 2022.  [Mr Sinisi] has deliberately tried to hide this positive result as it only came to my knowledge through a subpoena.

   84. As deposed further below, this was not an isolated incident, as [Mr Sinisi] has tried to hide other positive drug tests with the hope that it would not get back to me. These positive results only came to my knowledge through a subpoena and was not disclosed by [Mr Sinisi]. It concerns me that there are numerous other positive results that [Mr Sinisi] has received from other testing facilities which he has chosen not to disclose especially when he and his lawyer have assured me in correspondence that tests were completed or that they were going to be completed but never actually disclosed. This gives me no confidence that [Mr Sinisi] will in the future be fully frank to me about any positive drug tests that he receives if ongoing testing is ordered following the conclusion of these proceedings.[47]

   (Emphasis added)

   [47] Mother’s Trial Affidavit (n 5) [81]-[84].

2. The Father did not address the Mother’s concerns regarding non-compliance and non-disclosure in his affidavit material, but rather sought to justify his drug use:

   [Ms Barbas]’ History of Drug Abuse

   39. [Ms Barbas] and I on rare occasions used recreational drugs, namely  [illicit drugs]. The use of drugs stopped after we found out that [Ms Barbas] was pregnant with [X].

   40. [In mid] 2017, [Ms Barbas] and I attended [a party]. Both [Ms Barbas] and I used [illicit drugs] that night and many other nights.

   41. [Ms Barbas] has openly admitted she had used [illicit drugs] on a number of occasions recreationally with and without me. She further goes on to admit that she was fully aware that I had only used  [illicit drugs] recreationally, as sworn in paragraph 12 of her affidavit sealed with the Family Court on which is she has stated in her affidavit dated 10 February 2022.

   42. [In mid] 2017 [Ms Barbas] and I hosted a party at the [O Venue]. At his party  [Ms Barbas] and I had consumed large amounts of alcohol and drugs. Several of our friends were also present at this party

   …

   My & [Ms Barbas]’ Recreational Drug Use

   48. I have always admitted that both I and [Ms Barbas] have previously done  [illicit drugs], socially/recreationally only.

   49. It is disturbing that [Ms Barbas] continues to promote my "recreational" use of  [illicit drugs] whilst simultaneously refusing to admit to her our recreational use.

   50. I have never had an issue with drugs, nor have I been considered or classified as drug addict. I take my health and fitness seriously and would never let something like drugs ruin my life.

   51. I have good career that requires extreme dedication and factual accuracy. Regular use or addiction to [illicit drugs] or any other illicit drug would almost certainly render my career over.

   Allegations of [illicit drugs]

   52. The notion that I formally admitted to being a "Functional User" of [illicit drugs] via an email is completely falsified. The emails that [Ms Barbas] claims to have sent can not ever be verified by an expert, despite [Ms Barbas] claiming to be engaging such an expert. A ‘trace email" would clearly show if the email was actually sent and received. [Ms Barbas] cannot provide this to support her version of events.

   53. The "photographic" evidence provided in [Ms Barbas] affidavit is again fabricated. [Ms Barbas] has a history of falsifying documents for her own benefit. The photos provided show no time stamps, lack actual location data and with "limited" background. She did not share the meta data within the photos along side to provide some level of authenticity. She has also lied about who drove the car home when I lost my license.

   54. The email in question dated 4 October 2020 relates to the common friend of ours and there is absolutely no reference to be stating that "I" was this person.

   55.[Ms Barbas]’ report "response" that email was never sent and evidence to provide that it was sent has never been provided, even though this could easily be provided by obtaining a expert to verify the email trace details. It was noted that [Ms Barbas] had originally intended to obtain an expert for this but subsequential was[48]

   (Original emphasis)

   [48] Father’s Trial Affidavit (n 3) [39]-[42], [48]-[55].

3. I do not accept the Father’s evidence regarding his drug use. The Mother annexed pictures of drug paraphernalia and described the Father’s drug use during their relationship[49] — evidence I accept. I also accept that the Father attempted to mislead her and the Court about his drug use — findings supported by the history set out in the Mother’s aide memoire[50] and the concessions made by the Father under cross-examination, including that he had failed forty percent of the drug tests he had undertaken, and the results of two hair follicle tests had not been disclosed. His failure to provide the numerous drug tests requested was also not explained.

   [49] Mother’s Trial Affidavit (n 5) [28] [29].

   [50] Mother’s Aide Memoire (n 46). See paragraph 63 of these Reasons.

4. Particularly damning was his statement to Ms F in March 2024 that he had not used drugs after a positive test in May 2023:

   49. [Mr Sinisi] reported that on rare occasions he has used recreational drugs, namely [illicit drugs] and denied ever using [other illicit drugs]. [Mr Sinisi] reported that the positive drug test from May 2023 was due to him taking  [illicit drugs] at a bucks party and stressed to the report writer that he does not have an issue with drug use. [Mr Sinisi] explained that [Ms Barbas] also used drugs, namely [illicit drugs], whilst they were together and suggested that if she was to be drug tested it would likely return with a positive reading. He reported that he and [Ms Barbas] had agreed to [Ms Barbas] terminating a pregnancy in 2017 as the risk to the child would have been “too high” as [Ms Barbas] was drinking alcohol and using drugs during that time.

   50.[Mr Sinisi] reported that the drug test that had been positive due to his [illicit drugs] use at a bucks party which he suggested, in hindsight, was a reckless decision and was adamant that he has not used drugs since. An affidavit dated 28 August 2023 by [Dr P] from [Q Centre] notes that a length of hair was collected from the head of [Mr Sinisi], [in] May 2023, which was found to contain [illicit drugs] and [illicit drugs and alcohol]. It was noted in the affidavit by [Dr P] that the concentration of [illicit drugs] are consistent with as little as a single drug-use occasion during the timeframe represented by the hair sample i.e., late February 2023 to late April 2023 and though it was positive for those drugs it is not consistent with the regular use of [illicit drugs] . These results are not consistent with [Ms Barbas]’ allegations of [Mr Sinisi] using [illicit drugs].[51] 

   (Emphasis added)

   [51] Family Report (n 13) [49]-[50].

5. His claim of abstinence after May 2023 was undermined by the positive test in December 2023. He tried to explain that the result was misleading because he had innocently encountered illicit drugs in an ‘environmental sense’[52] at a party where others were using drugs. Dr E gave evidence that the chances of the level of illicit drugs in his system in May 2023 being the result of environmental contamination, to be ‘extraordinarily unlikely and not within reasonable possibility’.[53]. Dr E opined that the amount of the substance detected in May 2023 was typical of illicit drugs use by ingestion, concluding that the Father had very likely taken illicit drugs that night.[54] In the May 2023 test the Father had 424 pg/mg of illicit drugs in his system while in December 2023 the amount was higher — 670 pg/mg.[55] As such I reject the Father’s claim of environmental contamination and find that the Father deliberately ingested the illicit drugs detected in the May and December 2023 tests.

   [52] Cross-examination of the Father.

   [53] Single Expert Report (n 16) [5.3].

   [54] Trial: Evidence of Single Expert.

   [55] The Mother’s Aid Memoire (n 46) as extracted.

6. I also note,[56] the Father tested positive for illicit drugs in February 2024 (a result that he did not disclose), prior to the interviews with Ms F — further proof that he lied to her regarding his drug use after May 2023.

   [56] The Mother’s Aid Memoire (n 46).

7. The Father’s attempts to mislead about his drug use during these proceedings completely destroyed any semblance of trust that the Mother held in him.  Ms F noted:

   [Ms Barbas]’ concern for [X]’s safety in [Mr Sinisi]’s care appears to be a pinnacle concern in this matter. Her allegations of [Mr Sinisi]’s illicit substance use appears to have some merit considering the positive drug test in […] May 2023, which was found to contain [illicit drugs and alcohol]. [Mr Sinisi] presented with a level of minimisation and aloofness when asked about his alleged illicit substance use and positive drug test. Should the Court give weight to [Mr Sinisi]’s alleged pattern and history as is alleged by [Ms Barbas] then his perspectives and apparent minimisation of such behaviour may be indicative of his inability and/or unwillingness to be accountable for risk issues associated to substance use in the context of parenting and more generally in relation to its impact on behaviour.[57]

   (Emphasis added)

   [57] Family Report (n 13) [68].

8. The Mother’s trust was eroded further when he filed an Application in a Proceeding on 14 June 2023 seeking to change existing orders in relation to the hair follicle testing. He claimed that there was no basis upon which such testing should be required, and that urine analysis testing should suffice,[58] arguing that he could not submit to further hair follicle testing because he had shaved all hair from his body,[59] notwithstanding the restraint preventing him from doing so.[60] The Court determined the Application on 29 November 2023, with new orders made for his time with X conditional upon him continuing to submit to hair follicle drug testing. The injunction preventing him from cutting his hair to less than 4 cm in length nor colouring the same was maintained.[61]

   [58] Amended Application in a Proceeding files 31 July 2023 [8].

   [59] Mother’s Case Outline filed 3 June 2024 (n 2) [4]–[5].

   [60] Order 26 of the Orders made 1 March 2022.

   [61] Orders of 29 November 2024, Order 12.

9. Somewhat disappointingly, Ms C, who otherwise presented as a sensible, articulate and considerate person, tried to hide the truth about the Father’s drug use from the Court, when she spoke to Ms F on 21 March 2024:

   30. [Ms C] explained that [Mr Sinisi] is “not a drug user”, stating that she has never seen him do drugs and that he has never done drugs in the home or around her or their child. When the report writer challenged this and reported that [Mr Sinisi] has tested positive for drug use after testing [in] May 2023, [Ms C] reiterated that [Mr Sinisi] “is not a drug user” and that doing drugs is “not what they do”, explaining that [Mr Sinisi] is “such a good person”.[62]

   [62] Family Report (n 13) [30].

1. No doubt, the maternal grandparents, who regularly care for X, have also had a desirable influence on X. They too must remain vigilant not to pass onto X their own misgivings regarding the Father. I would expect them to continue to be an ongoing support for the Mother as she navigates the growing time X will have with the Father.

   Section 60CC(2)(e): The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so

2. Ms F was glowing when describing the nature of the relationship that X has with her mother, observing:

   [X] was observed to lead the play between her and [Ms Barbas] with [Ms Barbas] attentively engaging in imaginary play with [X] at the play kitchen, chatting to her throughout.  [X] would attempt to put toys in her mouth, especially utensils, with [Ms Barbas] calmly telling her not to do that on several occasions, [X] responded well to the boundary setting and redirection, and appeared to generally listen to [Ms Barbas].  [X] appeared confident in her play and navigated the room well continuously changing and engaging in new activities, which [Ms Barbas] supported and encouraged through the interactions, providing a safe and secure base from which [X] could return to and check back in with. The primary care relationship and secure attachment between [Ms Barbas] and [X] was evident in the observations, with them appearing to have a close and loving connection.[104]

   [104] Ibid [62].

3. Ms F also observed a warm relationship between Father and X during interviews in March 2024:

   Upon seeing her father,  [X] appeared cautious and sheepish in her manner but allowed [Mr Sinisi] to pick her up and hug her.  [X] walked calmly with report writer and [Mr Sinisi] back to the playroom and appeared to have no visible disturbances in her manner. Once [X] was back into the playroom with [Mr Sinisi], she settled into imaginary play at the doll’s house. [Mr Sinisi] provided commentary throughout the play, with [X] remaining silent during the first few minutes. As the observations went on, [X] appeared to become more familiar with [Mr Sinisi], and they began to engage in conversation and play together. [Mr Sinisi] was encouraging of [X] in her play, providing positive praise and attentively followed her lead in deciding what activities to do.

   [Mr Sinisi] appeared to try and get [X] on side by making her laugh. For example, when [X] was playing with a toy car, it ran into him and he stated, “you got me” and stated “I’ll get you!” causing [X] to laugh and become excited. The more the observations went on the more excited [X] became, where [Mr Sinisi] was seen to tickle her causing her to laugh and squeal. He also lifted her up and down gently touching her head to the hanging lights, playing stating “donk”, which [X] appeared to find funny and joyfully requested him to continue to do it. This type of play appears consistent in his visits with [X] and is noted to be a theme in the previous Child Impact Report and in the subpoenaed material from [K Centre].

   At the end of observations, [X] said goodbye to [Mr Sinisi] and allowed him to pick her up and hug him. There appeared to be no distress or disturbances to her presentation from [X] upon changeover to Ms Barbas, and X happily ran to Ms Barbas for a hug upon seeing her. X was still excited upon changeover to Ms Barbas, with Ms Barbas telling X that it is “quiet time now”.[105]

   [105] Family Report (n 13) [64]-[66].

4. These observations showed a growing confidence in their relationship, when compared with the observations of Ms G in September 2023, extracted earlier in these Reasons.

5. The notes from City B Children’s Contact Service also evidenced a warm relationship between X and her Father, with appropriate happy and loving interactions. Their notes of the meeting in April 2024, with Ms C and D, were particularly enlightening, revealing Ms C’s gentle nature and X’s interest in D. Ms C described that interaction in her affidavit:

   On 3 April 2024, I finally had the pleasure of meeting beautiful little [X]. [D] and I flew down to Tasmania with [Mr Sinisi] to join in one of the ongoing fortnightly visits that are currently taking place. When [X] saw [Mr Sinisi], I saw her run to his arms for a big cuddle. I did not observe her any behaviour indicating she was feeling scared. I gave [X] a high 5, as I understood she was only meeting me for the first time. Over the 2 hours that we stayed for the visit, [X] enjoyed assisting in feeding baby [D], and showing her toys. As it was sunny weather, [X] enjoyed running around outside with [Mr Sinisi] chasing her and jumping in puddles. As much as [Mr Sinisi] and I both tried to avoid her stockings getting wet, the puddles that [X] eyed off had other ideas for her. So much laughter was· heard as [Mr Sinisi] kept up with [X], chasing her around the play area. When [Mr Sinisi], [D] and I were leaving to head back to Sydney, it was the most heartbreaking feeling for both [Mr Sinisi] and I. I finally got to meet this playful, darling girl, yet she lives interstate. I would love to get to know [X] better and I intend on flying down to Tasmania monthly and [Mr Sinisi] will visit fortnightly.[106]

   [106] Ms C’s Affidavit (n 101) [7].

6. Under cross-examination, the Mother accepted that X enjoys her visits with the Father and the video calls. There is no persuadable evidence that the Father has presented affected by any illicit substance, when spending time with X virtually or otherwise. The Mother is to be commended for following the court orders,[107] and ensuring that X’s time with the Father has continued at the Contact Centre and virtually, notwithstanding her reservations. Her description, under cross-examination, of her efforts to ensure the Father’s video time ran well, was an exhibition of high level, child focused parenting:

   May 23 started doing calls -  they more regular and nicer since [Ms C] involved in calls….very first time I set up quiet space a plain wall behind and put colouring in books and toys - something for them to talk about…She had seen him at the Contact Centre so do the call now and she knows baby [D] there - I know not perfect but I make it smooth I make it smooth for her[108]  

   (Emphasis added)

   [107] The Father argued that there were delays to him recommencing supervised time with X, contrary to court orders. The Mother denied this accusation. There was no need for me to make a finding regarding this as there is no doubt that X has been enjoying time with the Father at the contact centre and the observations throughout late 2023 and 2024 were always positive. I also find that the Mother will continue to comply with court orders.

   [108] These answers to a series of questions are taken from Judge Turnbull’s notes and may not be verbatim when compared with the transcript.

7. Ms F was clear about the benefit to X of building a relationship with the Father and D:

   78. It is suggested that [X] will benefit from sharing a meaningful relationship with her father into the future. The nature of [X]’s relationship with [Mr Sinisi] as observed in the context of this assessment suggests that a no time arrangement as has been recently proposed by [Ms Barbas] would be experienced as a significant loss to [X]. It also is in [X]’s bets interest for her relationship with her sister [D] to also be supported. Maintaining a relationship with a sibling can provide emotional support, companionship, and a sense of belonging. Encouraging communication through phone calls, video chats, or visits can help strengthen the bond between siblings, despite the physical distance. This connection can contribute positively both [X] and [D]’s overall development and sense of family unity.[109]

   [109] Family Report (n 13) [78].

8. The Mother’s attitude to properly facilitating X’s time with the Father has benefited her, and she now has a relationship with her Father that is developing. The Mother’s child focused approach provides confidence that if the Father’s time were to continue to grow with X, she will comply with the orders requiring the same, and she will not undermine the development of that relationship.

9. That said, the Mother does not pretend to like the Father, and sees little value of him having a relationship with X, whilst also agreeing that for her not have their relationship would be ‘a loss’[110]. Of some concern was that the Mother is yet to inform X that the Father is her ‘dad’. It is entirely inappropriate for X to simply refer to the Father as ‘the man’ — if that is occurring. X has a right to know who her Father is and be able to engage with him properly as his daughter, as this is fundamental to her identity. Ms F was clear about this in her report:

   81. This raises concerns about [Ms Barbas]’ capacity to support [X]’s emotional needs which can have significant effects on her wellbeing and development such as feelings of confusion, insecurity, sense of identity, emotional difficulties, attachment issues and challenges in forming future relationships. It is essential for [X] to have the opportunity to build and maintain meaningful connections with both parents and external family members, provided it is safe and in her best interest.[111]

   [110] Trial: Cross-examination of the Mother.

   [111] Family Report (n 13) [81].

10. Ms F was also asked about this at the trial:

    So [X] goes off to the contact centre on the basis she is going to play group – play centre. FaceTime calls are taking place. They’re being set up in quite a child-focused manner with the screen and activities, and they’re happening. But in the mother’s household, you know, she’s not being told, you know, “This is daddy and step-mom and your sister”. And then from [Mr Sinisi]..... he is saying – and I don’t think it’s being pushed very hard on [X] – you know, dad – that, “I am dad”, etcetera. What impact would this have on [X]?

    --- I guess there’s kind of two sides to that. The first side is that if she knows [Mr Sinisi] as being dad, and as she gets older, that obviously is a big thing for a child to be knowing that, “This is my parent, this is” – you know, that relationship with him. So, I mean, it’s really important in the context of her knowing him as dad that they do maintain a relationship, whatever that may look like. I guess a sense of identity – connection to her sibling – you know, all of that is really, really important for children as they age. They start to, you know, determine identity – things like that. So that’s really important. But on the other hand, you know, if it was to be that, you know, [Mr Sinisi] was known as dad, and then for whatever reason, you know, doesn’t persist in terms of, you know, time arrangements or contacts – things like that – then that could be a significant loss to [X], and also then impact on her identity and, you know, paternal family connections, and as she gets older, fear of abandonment, you know, mental health issues – things like that. So there are, I guess, two things to look at, so on both sides. I guess it is important that she does know him as her father, but then that also needs to be maintained and continued, you know, for the wellbeing of [X], because, if not, then that will be a significant loss to her and maybe cause significant, you know, mental health issues as she ages.

    So if the court order that [X] has ongoing time, whether it’s supervised, unsupervised or otherwise, she needs to know now that, “[Mr Sinisi] is your dad”?

    --- Yes. She might not understand necessarily, considering her age, but I think that sometimes, you know, from the beginning and that reinforcement of that – you know, children learn and pick up on those things. So, it would be best – in her best interest that she does understand who he is, yes, if that time is going to continue.[112]

    (Emphasis added)

    [112] Transcript 7 June 2024, 7.

11. I agree with the ICL that the Mother must inform X of her true connection to the Father and I will adopt the ICL’s proposed order in that regard. The Mother also needs to try and promote X’s relationship with the Father, D and Ms C more overtly. I have confidence that, ultimately, the Mother will act to make X’s life happy and free of her concerns, even if time is ordered contrary to her preferred position.

12. The Father must now to do all he can to build trust the Mother’s trust.  To do that he must become drug free and patiently convince the Mother that he is a changed man. The Mother needs to support X’s time with him and be prepared to trust that the Father will act protectively of X and become drug free. Once the Father starts demonstrating that he can do this, she must promote a growing amount of time with him. If both parties can put X’s interests above their own, and look to a more positive future, X may have a chance of reaching her potential. Her future is entirely in their hands.

13. There is enormous benefit to X having a relationship with her parents, D, Ms C, and her grandparents. Both parties need to work positively to achieve this goal.

    Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child

14. X is just four years of age. The Father’s time, due to his own actions, has remained supervised for a long period. Any advance of his time must occur gradually, not only to allow X to adapt, but also the Mother. There is also a level of uncertainly as to whether the Father can commit to a drug free lifestyle.

15. Given this, the Court is limited to making orders that deal with X’s time with her Father for the short term. To do otherwise would be to speculate as to the arrangements that will meet X’s best interests in the medium and long term. This inevitably results in X being the subject of further negotiation and perhaps litigation. My hope is that the parents will find a way to agree on any progression of the Father’s time to overnight periods, including in Sydney, if the Father’s time successfully progresses to full day time periods, and he remains drug free. Given the state of the evidence, it is not possible for the Court to gamble on what the best arrangements for X will be in two years’ time. Again, if the Father had complied with the 29 November Orders, the Court would likely have been able to make orders with greater certainty, but sadly he chose not to take that path.

16. That said, the four hourly visits, as proposed by the ICL, are too limiting and would quickly invite fresh litigation. With strict regulation around the Father’s time I see no reason not to gradually increase X’s time with him to full day visits. A building of time, subject to strict conditions, will take nearly two years. That should free the parties of the prospect of litigation for, at least, that period, and invite a considered look at X’s time with the Father when she is approaching six years of age.

17. Ms Kennedy submitted that the Court should make a ‘guillotine order’, cutting off the Father’s time if he fails to spend time with X as ordered. I will not make that order. Given the logistics of the Father spending time in Tasmania, there may be valid reasons as to why a visit or two may be missed. To put in place a ‘guillotine order’ would be to invite further conflict and litigation. The Father’s time will not advance to a new stage until he completes a certain number of visits. If however, he produces a positive drug test, his time will become supervised until he can produce a negative test, with his time to resume at the point he had reached. I have considered whether his time should resume at the start of the build; but if X has adapted to, and enjoyed a greater amount of time, she should not be penalised by the Father’s poor choices.

18. Frankly, absent a very good reason, the Father would be foolish in the extreme to miss any of his ordered time, or act in a way that jeopardises his relationship with X. He needs to keep in mind, that just as he is likely to seek a change to the Orders in two years, if he does not comply with the requirements of his growing time, it may be the Mother who seeks to come back to the Court to restrict his time. The spotlight is firmly fixed upon him.[113]

    [113] Napier & Hepburn [2006] FamCA 1316 [82] – “What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.”

    PARENTAL RESPONSIBILITY

19. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[114] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation, parents are not, by virtue of their changed relationship with one another, absolved from their responsibilities to maintain and care for their children.[115]

    [114] FLA (n 27) s61B.

    [115] FLA (n 27) s61C.

20. It is important that, wherever possible, separated parents cooperate to promote their child or children’s best interests, as well as to help each other with the responsibilities and challenges of parenting. To that end, the legislation encourages parents to consult each other about major long – term issues in relation to the child and, in doing so, have regard to the best interests of the child as the paramount consideration.[116]

    [116] FLA (n 27) s61CA

21. ‘Major long-term issues’ is defined in the Act[117] and means:

    in relation to a child, means issues about the care, welfare and development of the child of a long - term nature and includes (but is not limited to) issues of that nature about:

    (a)  the child's education (both current and future); and

    (b)  the child's religious and cultural upbringing; and

    (c)  the child's health; and

    (d)  the child's name; and

    (e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

    To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long - term issue in relation to the child. However, the decision will involve a major long - term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

    [117] FLA (n 27) s4.

22. If a parenting order requires decisions about major long-term issues to be made jointly, then the order is taken to require each person to consult each other person in relation to each such decision and make a genuine effort to come to a joint decision.[118] Parental responsibility can, however, be apportioned to suit a post-separation life,[119] and a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child may provide for joint or sole decision-making in relation to all or specified major long-term issues.[120] It is noted, however, that the person with whom the child is spending time will usually not need to consult about decisions regarding non-major long-term issues, such as what the child eats or wears.[121]

    [118] FLA (n 27) s61DAA.

    [119] Goode & Goode [2006] FamCA 1346, [39]; FLA (n 27) s61D and s64B(3).

    [120] FLA (n 27) s61D(3).

    [121] FLA (n 27) s61DAB.

23. The Mother is of the view that it is impossible for her to make joint decisions with the Father about major long-term issues concerning X:

    [Mr Sinisi] and I are unable to communicate. [Mr Sinisi] is constantly making threats both direct and implied and having to correspond with him causes me considerable stress. I believe that we are incapable of being able to make joint decisions together and that this will have an adverse impact on [X] and the ability to make decisions in an expedient and efficient manner.

    I have always been [X]’s primary carer, and I consider that I can make decisions which are in her best interests.[122]

    [122] Mother’s Trial Affidavit (n 5) [144]-[145].

1. Under cross-examination, the Father agreed that he does not communicate with the Mother and accepted that she does not trust him and he has the same view of her. He agreed that he would not be able to work with the Mother to make joint decisions. Notwithstanding this, he believes he can make a meaningful contribution to X’s education, given the value that he has placed in the same in his own life, stating ‘I don’t want to be a spectator’.

2. The Father is an educated man, intelligent, and no doubt has much to offer X. That said the Father has played no part in the major long-term decisions regarding X to date. Under cross-examination, the Father did not criticise the decisions the Mother has made in relation to medical and educational matters. Neither party is particularly religious, and it seems, notwithstanding their poor view of the other, both have similar values and ideas in relation to major long-term issues that might impact X. The evidence is clear, however, that the parents currently have no capacity to communicate with each other and make meaningful joint decisions. To require them to do so is to invite conflict and stress, which will ultimately impact X.

3. It is in X’s best interests for the Mother to have sole parental responsibility for major long-term decisions concerning X, although the Mother will be required to provide the Father with information about the same in the manner set out in the ICL’s proposed orders, which I adopt.

4. I also adopt the ICL’s proposed orders in relation to information sharing, including the use of a communication app. I have no doubt that it is in X’s best interest for the Father to have a full understanding as to what is happening in her life, including how she is faring at school, and in relation to any extracurricular activities in which she might engage. I agree that at this time, the Father should not know where the Mother is living, and it is just and convenient for there to be an injunction preventing him from questioning X about her home address.[123]

   [123] FLA (n 27) s68B(2).

   CHANGE OF NAME

5. The factors to be considered when determining the question of whether a child’s name should be changed were set out in Chapman and Palmer [1978] FamCA 86:

   To summarise, the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:

   (a) the welfare of the child is the paramount consideration,

   (b)       the short and long term effects of any change in the child's surname,

   (c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

   (d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.

   (e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

   (f)The effect of frequent or random changes of name.

   To conclude, it must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child's surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child's name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child's mind.[124]

   [124] Chapman and Palmer [1978] FamCA 86 [56]-[57].

6. The Mother’s position is that X should now be known as ‘[X Barbas]’ as opposed to ‘[X Sinisi]’. The Mother stated in her affidavit that X has been known by ‘[Barbas]’ since 2022, when the Father agreed to the change:

   86. On 27 April 2022, [Mr Sinisi] sent me an email to say he agreed for me to change [X]’s surname provided I sign an Acknowledgment of Service in relation to his Application for Divorce. [Mr Sinisi] said: "I am never going to contact you again after this, I will never ask to see [X] or try to reach out to her. I will not exist in your life or in hers. If you want to change her last name, then send me the forms and I will sign them immediately. Just let me divorce you so that both of us can move on with our lives".

   87. On 2 May 2022, [Mr Sinisi] told me I could take his name off [X]’s birth certificate.

   88. On 11 May 2022 [Mr Sinisi] sent an email to the [L Centre] titled" Withdrawal of Family Court Proceedings" in which I was copied in. [Mr Sinisi] states in the email, among other things "I formally notified the respondent ([Ms Barbas]) on the 6^th of March 2022 ..... that I will not be following through with the custody case any further. I have made no attempt to see my daughter and I will not be making any attempt in the future. Should I change my mind, I will need to seek new orders from the Family Court at that time".

   ….

   149. [X] is already known as "[X Barbas]" and has never known herself to be "[X Sinisi]". [Mr Sinisi] consented for me to change [X]’s surname following his discontinuance of the first court proceedings in which he sent me an email on 27 April 2022 in which he said among other things "I will not exist in your life or in hers. If you want to change her last name, then send me the forms and I will sign them immediately. Just let me divorce you so that both of us can move on with our lives.". [Mr Sinisi] and I then exchanged in further emails in which we took formal steps to change [X]’s surname. Annexed and marked "AD" are copies of the emails dated 27 April 2022 to 3 May 2022. The formal name change did not proceed as [Mr Sinisi] was insistent on having me amend the" reason for name change" field on the application form.

   150. [Mr Sinisi] then discontinued proceedings on 11 May 2022 expressing to me in clear terms that he wanted nothing to do with [X]. I took [Mr Sinisi]’s written consent and his actions to mean that he consented to the name change. This is when [X] was at an age when she just started talking and I had no reason to believe otherwise that what I was doing in telling [X] her surname was "[Barbas]" was not agreed to by [Mr Sinisi].

   151. I was not aware that it was an issue until April/March 2024 when [Mr Sinisi] started questioning why [X] had the surname "[Barbas]" on pencil cases which [Mr Sinisi] saw during facetime calls.

   152. [X] knows her name to be "[X Barbas]". It was consented to by [Mr Sinisi] and with his consent I have called her this. It would cause utter confusion and embarrassment to [X] if she was to suddenly change her surname to "[Sinisi]". [X] knows her name to be "[X Barbas]" and she is known at her day-care among her friends as [X Barbas]. I never would have unilaterally changed [X]’s surname had it not been for [Mr Sinisi]’s consent. [125]

   [125] Mother’s Trial Affidavit (n 5) [86]-[88], [149]-[152].

7. The Father desires for the child to be known by the hyphenated surname ‘[Sinisi-Barbas]’. Under cross-examination he accepted that he had told the Mother that she could change X’s surname, but claimed that he did not sign documents to officially formalise the same because ‘she didn’t agree to all things’[126]. The issue was not addressed in his trial affidavit and he proffered no child focused reason why X’s name should now be changed as he proposes, or return, in its common usage, to ‘[Sinisi]’.

   [126] Trial: cross-examination of the Father.

8. I accept the Mother’s evidence that the Father agreed in writing to X being known as ‘[Barbas]’ in 2022, and that since that time X has been known by that surname. To require X’s name to be changed again is likely to cause her confusion, and potential embarrassment, as she seeks to understand and perhaps explain to others why her name has changed. In those circumstances I find that it is in X’s best interest to be known as ‘[Barbas]’ and that both parties do all things necessary to formally change her name.

9. I accept that this will result in X having a different surname to D, but the Father’s proposal would have had the same result. It is also not unusual for half siblings to have different surnames.

10. The Father may find this decision somewhat unfair to him, but I remind him that most children happily go through life adopting the name of one parent – usually the father – without any impact upon their identity or their relationship with the other parent. The focus of these proceedings is X, and the Court will not countenance a change that might negatively impact her simply to meet his hopes and desires.

    CONCLUSION

11. I have had regard to all of the evidence in this matter and considered deeply the question as to whether or not the Father poses an unacceptable risk of harm, psychologically, emotionally, physically or otherwise to X, if he were to spend unsupervised growing time with her.

12. The main risk to X is from the Father being affected by illicit drugs when she is in his care. That risk can be mitigated with an injunction preventing him from using illicit substances and requiring him to undertake ongoing drug testing. If he is not affected by drugs, he is less likely to act in the aggressive manner experienced by the Mother. For X’s personal protection I will make that Order.[127] The Mother is also likely to cope better if she can be assured that the Father will not present while impacted by drugs. The Mother does not trust the Father and sees little value to X maintaining her relationship with him. The objective evidence demonstrates that X derives benefit from her time with the Father and, provided she is safe, there is no reason why she should be deprived of the opportunity of building a loving and close connection with the Father, Ms C and D.

    [127] FLA (n 27) 68B(1)(b)(i).

13. I intend to slowly extend the Father’s time to eventually reach two full days each month, subject to the strict conditions around drug taking that I have mentioned. If the Father produces a positive drug test, his time will become supervised until he can produce a negative one, and X’s time with him will then revert to the point that she was enjoying upon him. The chances of his time advancing to overnight block time in the years to come are remote if he chooses to continue to use drugs.

14. I accept that my Orders are unlikely to prevent further litigation. If the Father adheres to the strict conditions that will be imposed, it is inevitable that he will seek an increase in his time, including overnight time in Sydney. If he does not remain drug free, it is likely that the Mother will seek to limit his time. The way that I will structure the Orders effectively creates a review mechanism at around the time X turns six.

15. I acknowledge that the Orders I intend to make are an advance on the four hours proposed by the ICL in final submissions, are far different from those proposed by the Mother and do not develop to the extent hoped for by the Father. I am not bound by the parties proposed orders and must make a parenting order that I consider ‘proper’, so long as it falls within the ambit of proposals put by the parties, as confirmed by the Full Court in Guthrie & Guthrie (1995) FLC 92-647:

    Unless the orders made were outside the ambit of the proposals put by the parties, there was no necessity for a trial Judge to give notice of what he intended to impose on the parties. It is a matter of degree as to whether the orders made are outside the parameters designated by the parties. In the subject case, the orders were not beyond the ambit of the positions taken by them.

16. A building regime of time for the Father has been in the contemplation of the Mother since at least July 2023, and as recently as 14 March 2024, and has been recommended by both Court Child Experts. As I raised with the ICL during final submissions, if X’s time with her Father is progressing well, and the Father produces negative drug tests, what reason is there for his time not to gradually advance to six or eight hours, a position somewhat reflective of the ICL’s position set out in her Case Outline.[128]

    [128] ICL’s Case Outline (n 7) [11].

17. In my view, X’s best interests are met upon the Father producing a negative hair follicle test, with her time with the Father immediately moving to four hours per month, unsupervised. His time will always commence and end at a contact centre, resulting in a level of ongoing monitoring. If the Father ever presented affected by any substance, he would likely be prevented from removing X from City B Children’s Contact Service.

18. To undertake hair follicle testing, the Father will be subject to an injunction preventing him from tampering with his hair by using dying, bleaching or straightening agents and ensuring his hair is no shorter than 4cm. After five visits (anticipated to take five months), and upon him producing a further negative drug test, his time will increase to six hours. After a further five visits, and a further negative drug screen, his time will also include time on the next day, initially for four hours and then advancing to six. This results in the Father’s time remaining day only for approximately two years, when X will be approximately six years of age. In determining the pace of the Father’s building time, I have had regard to the recommendations of Ms F and Ms G.[129]

    [129] Family Report (n 13) [92]; Child Impact Report (n 14) [33].

19. In order to provide certainty, the Orders will need to define what is meant by a ‘negative drug test’. For the purposes of that definition, I will list the illicit drugs specified in the Australian Standard AS/NZS 4308:2008 as referred to in Dr E’s report extracted at paragraph 35 of these Reasons.

    1.1 SCOPE
    This Standard sets out procedures for specimen collection, screening, confirmation,
    quantitation and reporting of drugs in human urine as well as integrity testing of the
    specimen. The procedures are intended for but not limited to medico-legal, workplace,
    correctional services or court directed testing of any or all of the following classes of drugs:
    (a) Amphetamine type substances.
    (b) Benzodiazepines.
    (c) Cannabis metabolites.
    (d) Cocaine metabolites.
    

    [130] Joint Technical Committee CH-036, Analysis of Body Fluids and Wastes, Procedures for Specimen Collection and the Detection and Quantitation of Drugs of Abuse in Urine (AS/NZS 4308:2008, 19 March 2008). 7.

    (e) Opiates.[130]

20. The Father’s video time will occur every fortnight, which results in him having some connection with X three weeks out of four each month.  I acknowledge that this is a greater amount than the recommendations by the ICL, but it is vital that X has regular contact with the Father, and she has been enjoying weekly virtual visits to date. I will also adopt the ICL’s Orders regarding virtual time on special days.

21. I accept that the Mother will initially be troubled by the orders that I intend to make. I encourage both parties to engage with their supports to assist them, at least through this initial phase, where the Father’s time is developing. I am satisfied that the Mother is very likely to do that and to gain benefit from the same. I intend to provide leave to both parties to release these Reasons to their mental health professionals to assist them with navigating initial phase of X’s building time with her father.

22. The Father will question why his time cannot advance to overnight time, given my finding that the risk to X is mitigated if his time is subject to the condition that he does not use illicit drugs. The difficulty is that the Court cannot look too far into the future when making parenting orders, where the child is so young and there remains so much uncertainty. This is a problem of the Father’s making. If he had complied with the Orders of 29 November 2023, he and X would have built their time to five unsupervised hours, and the court would be considering whether X and the Mother could adapt to overnight time. Unfortunately, the Father’s time is yet to advance beyond City B Children’s Contact Centre Service, because he has failed to produce clear hair follicle drug tests. The Mother is anxious about anything but restricted time occurring, and X, who is only four years of age, has not spent unsupervised time with the Father since separation. The question of the Father’s overnight time can be considered in, or about, two years, when he has demonstrated that he can put X’s interest above his own and it is in her best interests for his time to progress. I have considered whether I should make an interim order, but it is important that the parties be given some respite from the court process, with the hope that future litigation can be avoided with the parties using a mediation process to agree on future parenting arrangements.

23. Ms Kennedy urged me to make an order preventing the Father from filing further proceedings, but I am not satisfied that the provisions of section 102QB are met. The Father did discontinue proceedings in 2022 and then refiled them a few months later. That history does not support the argument that he has filed ‘frequent’ or vexatious proceedings.[131] He will, of course, need to meet the requirements of section 65DAAA before he can relitigate and he will need to successfully build his time and comply with the conditions surrounding the same before new orders can be meaningfully contemplated. By that time X will be nearly six years of age, and will hopefully, have built a strong and loving relationship with the Father, Ms C, and D. That will be an appropriate time to reconsider the nature of the Father’s time.

    [131] FLA (n 27) s102QB(1)(a).

24. It is my hope that in time, the Father will demonstrate to the Mother that he should play a significant role in X’s life. X is the product of two talented and intelligent parents. I encourage them to now look to the future and consider how it is that they can provide X with every chance of meeting her potential, having a happy and fulfilling childhood, and developing deep relationships with both sides of her family.

25. For completeness, I will also make Orders permitting the Mother to take X outside of Australia for the purpose of international travel and for the Mother to obtain a passport for her. X’s best interests are met with her experiencing other countries and their cultures. If the Father’s time can grow as contemplated, it is likely that he too will be able to enjoy international travel with his daughter at some stage.

26. I make the Orders set out at the commencement of these Reasons.

I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Associate:

Dated:       20 November 2024

» Right to safety and protection (e.g. To be free from violence and abuse, to have a safe place to live);
» Right to be yourself (e.g. Free from discrimination on the basis of culture or religion);
» Right to health (e.g. Access to medical care, healthy food and safe water);
» Right to education (e.g. To attend school);
» Right to develop (e.g. To play and learn, to be protected from things that could harm your development or wellbeing);
» Right to privacy (e.g. A right to keep personal information private, have a say over what information is shared about you)