Smits & Thorp
[2025] FedCFamC2F 103
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smits & Thorp [2025] FedCFamC2F 103
File number(s): NCC 1008 of 2022 Judgment of: JUDGE CARTY Date of judgment: 31 January 2025 Catchwords: FAMILY LAW – PARENTING – SPEND TIME ARRANGEMENTS – Applicant father seeks order that the three-year-old child spend supervised time with him – Child has spent limited time with father since parental separation three years – Consideration of matters under Part VII Family Law Act 1975 (Cth) – Consideration of the safety of the child and mother –Where father has perpetrated family violence –Where father has conviction for drug offences – Where father has not accepted full responsibility for his harmful conduct – Where father has not taken action to change his pattern of harmful behaviour – Whether there is a benefit to the child of being able to have a relationship with both parents – Consideration of what arrangements will promote the safety of the child – Where supervision of the child’s time with the father will ameliorate identified risks – Whether order for supervised time will promote the child’s safety and meet the child’s developmental, psychological, emotional and cultural needs – Whether mother’s capacity to provide for the child’s needs is preserved if there is an order for supervised time for the child with the father – Where an order for supervised time for the child is in the best interests of the child-Where order for supervised time will meet the child’s psychological and cultural needs – Where order for supervised time will not expose the child or the mother to an unacceptable risk of family violence – Order for supervised time for child with father six times each year – ALLOCATION OF DECISION MAKING – Where it is in the best interests of the child for the mother to have sole decision-making for all major long-term issues relating to the child-RESTRAINTS-COSTS – Independent Children’s Lawyer seeks an order that father pay a proportion of the costs of the Independent Children’s Lawyer – order for costs will create hardship for father – application refused Legislation: Evidence Act 1995 (Cth) s128
Family Law Act 1975 (Cth) ss 60CC, 60CE, 60CG, 61CA, 61F, 64B, 65D, 68B, 68C, 102NA, 117, Pt VII
Family Law Amendment Act 2023 (No. 87, 2023)
Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) FLC 91-979
Prantage & Prantage [2014] FamCA 541
Sedgley & Sedgley [1995] FamCA 154
Division: Division 2 Family Law Number of paragraphs: 237 Date of last submission/s: 30 May 2024 Date of hearing: 29 & 30 May 2024 Place: Newcastle Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co Solicitors & Attorneys Counsel for the Respondent: Ms Meares Solicitor for the Respondent: Legal Aid NSW Counsel for the Independent Children's Lawyer: Mr Murray
Solicitor for the Independent Children's Lawyer: Coast Law
ORDERS
NCC 1008 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SMITS
Applicant
AND: MS THORP
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS BY CONSENT THAT:
1.The child X born in 2021 (“the child”) will live with the mother.
THE COURT FURTHER ORDERS THAT:
2.The mother will have sole responsibility for making decisions about all major long-term issues relating to the child.
3.The mother will provide to the father by email a copy of any written medical report she receives which relates to the child PROVIDED THAT the mother is at liberty to redact from such report any information which might identify her residential address.
4.For the purposes of Order 3 hereto each parent will keep the other parent informed of their current email address and notify the other parent of any change to their email address within 72 hours of such change.
5.The parents must do all acts and things required to arrange for the child to spend supervised time with the father on six (6) occasions in each calendar year for up to two (2) hours on each occasion.
6.Within 28 days of these Orders, the mother must nominate in writing by email to the father the Children’s Contact Centre which she proposes will provide supervised time for the child with the father pursuant to Order 5 hereto.
7.Each parent must:
(a)Contact the Children’s Contact Centre within 7 days of the mother’s written nomination and arrange an appointment for assessment of suitability for supervision of time pursuant to Order 5 hereto.
(b)Attend the assessment.
(c)Comply with any arrangements made by the Children’s Contact Centre for the child to spend supervised time with the father pursuant to these Orders.
(d)Comply with all reasonable rules of the Children’s Contact Centre.
(e)Comply with all reasonable requests or directions made by the staff of the Children’s Contact Centre.
8.If after the assessment referred to in Order 7 (b) hereto the Children’s Contact Centre is able to provide supervised time for the child with the father, the child X born in 2021 will spend time with the father on six (6) occasions each year for up to two (2) hours on each occasion at the times nominated by the Children’s Contact Centre, and if possible at the following times of the year:
(a)During the week that the child’s birthday falls.
(b)During the week that the child’s paternal half-sibling’s birthday falls.
(c)During the last week of each New South Wales Public School Term 1, 2, 3 and 4.
9.The mother must deliver the child to and collect the child from the Children’s Contact Centre at the times specified by the Children’s Contact Centre.
10.If the Children’s Contact Centre offers supervised time at times which are less regular than specified in Order 8 hereto then supervised time for the child with the father will occur at the times offered by the Children’s Contact Centre.
11.The father must pay the reasonable fees charged by the Children’s Contact Centre for each occasion of supervised time pursuant to these Orders.
12.The father must not attend the Children’s Contact Centre or the immediate vicinity before the supervised time with the child is to start and he must promptly leave the Children’s Contact Centre and the immediate vicinity when the supervised time with the child is to end.
13.The supervised time provided in these orders may vary by reason of the closure of the Children’s Contact Centre during school holidays and public holiday periods, and in such event, supervised time will occur when the Children’s Contact Centre can provide supervision.
14.Subject to the requirements of the Children’s Contact Centre, the father is at liberty to attend supervised time accompanied by the child’s paternal half-sibling B.
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) the father will be and is hereby restrained by injunction from:
(a)Contacting or communicating with the mother except by way of email sent to the email address nominated by the mother pursuant to Order 4 hereto.
(b)Engaging in any violent, threatening or other behaviour towards the mother or the child or any member of the child’s family which causes the mother or the child to be fearful.
(c)Removing or attempting to remove the child from any school, day care centre, extra-curricular activity, or the care of any person with whom the mother has placed the child.
(d)Initiating contact or communication with the child by any means, including but not limited to telephone, digital, electronic or social media, except in accordance with these Orders, or with the written consent of the mother.
16.The application by the Independent Children’s Lawyer that the father pay costs in the sum of $3,707.50 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
The court must determine what parenting orders are proper and in the best interests of a three-year-old child who has complex additional needs requiring ongoing careful management.
The applicant father Mr Smits (“the father”) seeks orders to spend supervised time with the child on one occasion each month.
The child lives with the respondent mother Ms Thorp (“the mother”) and he has spent very little time with the father since the parents separated in December 2021.
The mother opposes the father’s application to spend time with the child and she seeks a no time order due to her concerns for the child’s safety in the father’s household, and concerns for her own safety. The mother seeks injunctions against the father for the personal protection of herself and the child. The mother alleges that the father perpetrated family violence during the parents’ relationship and that due to his coercive and controlling behaviour she finds communicating with him provokes her anxiety. The father denies that he has perpetrated family violence.
In determining what parenting order is proper, the court must regard the best interests of the child as the paramount consideration. The court must consider what arrangements will promote the safety of the child, along with several other matters including the capacity of each of the parents to meet the child’s needs and the benefit to the child of being able to have a relationship with both of his parents and other significant people in his life. The court must also consider any history of family violence.
The child is an Aboriginal child and therefore the court must consider the child’s right to enjoy his Aboriginal culture, and the likely impact of any proposed parenting order on that right.
For the reasons which follow the court has found that the child’s safety is at risk if he spends time with the father, and that supervision of the child’s time with the father will ameliorate the identified risks. Having regard to the evidence overall, and the matters which the court is required to consider and balance, the court has determined that the arrangement which would promote the safety of the child and which is the child’s best interests is an arrangement whereby the child will spend time with the father on up to six (6) occasions each year for up to two (2) hours on each occasion supervised by a children’s contact centre nominated by the mother.
BACKGROUND
In this background, statements of fact should be construed as findings unless otherwise stated.
The father was 33 years old at the hearing. He lives at Suburb C in Region D, New South Wales, and he is employed as a hospitality worker. The father works day and night shifts, 24 hours one week and 40 hours the next week, and he says that he is also studying. The father lives with his current partner Ms F, who is about 25 years old, and their child B who was born in 2023. Ms F is a stay-at-home mother, and she is also studying.
The mother was 26 years old at the hearing. She lives with the child in Region E, Sydney and is engaged full-time in parenting duties. The mother wishes to keep her residential address private from the father. The mother and the child live with the mother’s current partner Mr G, who is about 24 years old, and their child H who was born in 2023. Mr G works full time as a tradesperson.
When the parents commenced their relationship around mid-2020, the father was serving a sentence by way of Conditional Release Order without conviction for domestic violence offences, and he was subject to a recognizance. The father committed the offences against a previous female partner. A condition of the father’s sentence was that he continue consultation and treatment with a psychologist.[1] I pause to note that in his Notice of Risk filed on 13 April 2022 in the current proceeding, the father expressly disavowed that he had been charged with a criminal offence relating to family violence.[2] By failing to disclose and by actively disavowing his previous family violence offences, the father mislead this court.
[1] Exhibit M7
[2] Father’s Notice of Risk Q19.
In 2020, when the mother was pregnant with the child, a terrifying home invasion occurred at the parents’ home. The mother has deposed that after the home invasion, the father set up cameras in the home, which she says he used to monitor her, and later also the child. The father denies that he used the cameras to monitor the mother and the child.
In late 2020, the father met Ms F, his current partner, when he was supplying illicit drugs to her.
The only child of the parents’ relationship, X, was born prematurely in 2021. The child was diagnosed with medical conditions, and was treated for those conditions.
In late 2021 the mother met Mr G, who is her current partner.
The parents separated finally in December 2021 when the mother left the relationship and she took the child with her.
In late 2021, the mother attended Suburb J Police Station to report that the father had isolated her, forced her to hand over most of her money, and accused her of cheating even though he had cheated on her. The mother reported that in late 2021, while the parents and the child were staying at a hotel in Suburb K so that the child could see a medical specialist, the father became verbally abusive and threw the mother onto the bed, sat on top of her, and punched her with both hands to her chest and shoulder. The mother also reported that in late 2021 the father had thrown a large object at her, which had hit her, causing immediate pain and a cut, and bounced onto her again causing pain.[3] The police applied for and were granted a Provisional Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the mother.
[3] Exhibit M5
In late 2021, the mother transitioned to Mr G’s family home and she and the child were living there by early 2022. When the mother spoke with the court child expert in November 2022, she denied that she and Mr G were in a relationship and reported that they may commence a relationship in the future.
In early 2022, the father and Ms F commenced their relationship.
On 13 April 2022, the father filed an Initiating Application in which he sought an order that he have sole parental responsibility for the child and that the child live with him.
On 1 June 2022 the mother filed a Response in which she sought an order that she have sole parental responsibility for the child and that the child live with her.
On 8 June 2022, the Court ordered by consent that both parents undertake a Hair Follicle Test (“HFT”) to detect illicit drug use. Neither parent complied with that order.
On 25 July 2022, current interim parenting orders were made by consent. The interim orders provide that the mother has sole parental responsibility for the child, subject to her providing the father with information relating to decisions she makes for the child, and that the child live with the mother and spend time with the father for up to two hours on one day each fortnight supervised by L Centre at Suburb C. The father was ordered to notify the mother within 7 days of an additional supervision service in either City M or Suburb N which he nominates to provide supervised time for not more than two hours each fortnight to occur during the alternate week.
On 25 August 2022, the father was directed by an authorised representative of Legal Aid New South Wales not to contact the mother’s solicitors at Legal Aid NSW City M for twelve months, except by email, due to the father calling Legal Aid at City M continually and being abusive and demanding during his phone calls.[4]
[4] Mother’s affidavit [74], Annexure G.
In late 2022, the father was charged with several drug offences.[5]
[5] Exhibit M8
On 11 November 2022, a Child Impact Report was prepared by court child expert Mr O. The evidence of the court child expert is discussed further in these reasons. Notably, the father did not inform the court child expert that prior to his interview the father was charged with several criminal offences. The mother reported to Mr O that she regularly visited the maternal grandparents at Suburb P and stayed in their home with the child two nights each week, partly to facilitate the child’s supervised time with the father which commenced in mid-November 2022, after a hiatus of almost twelve months when the child did not spend time with the father.
In late 2022, a Final ADVO was made against the father for the protection of the mother for a period of three months.[6]
[6] Mother’s affidavit Annexure F
Between November 2022 and June 2023, the child spent time with the father for about one hour each week supervised in Region D. The time was limited to one hour upon the advice of the supervisors based on the child’s needs.
On 28 November 2022, the court ordered the appointment of an Independent Children’s Lawyer for the child.
In early 2023, the father resigned his position as an educator at City Q.[7]
[7] Exhibit ICL 4
In early 2023, the child was diagnosed with autism spectrum disorder and global developmental delay.[8] It is common ground between the parties that the child’s diagnosis of autism was reviewed in early 2024 and that the child he is diagnosed with autism spectrum disorder.
[8] Family Report [8]
In June 2023, the child’s supervised time with the father ceased and at the date of hearing the child had not spent time with the father since June 2023.
In 2023, the child’s paternal half-sibling B was born.
On 10 November 2023, the Family Report was prepared by family consultant Ms S. The family consultant’s evidence is discussed later in these reasons.
In late 2023, some of the drug charges laid against the father in late 2022 were withdrawn.
On 23 February 2024, the court made trial directions, including an order pursuant to s.102NA of the Family Law Act 1975 (Cth) (“the Act”) which prohibited each party from personally cross examining the other party in the proceedings. The court ordered that each parent submit a sample of hair for a HFT to detect illicit drugs. The mother complied with that order and the father did not comply.
In early 2024, the father was convicted of drug offences. He was fined and sentenced to a Community Corrections Order and Supervision concluding in mid-2025.[9]
[9] Exhibit M8
In early 2024, the mother provided a sample of her head hair which was tested for a panel of five illicit substances, and the result was negative for illicit substances tested.[10]
[10] Mother’s affidavit Annexure L
THE HEARING
The final hearing proceeded over the course of three days on 29 and 30 May 2024.
Mr Flanigan of Counsel appeared for the applicant father.
Ms Meares of Counsel appeared for the respondent mother.
Mr Murray of Counsel appeared for the Independent Children’s Lawyer.
During his evidence on 29 May 2024, the father was provided with a Certificate pursuant to s.128 Evidence Act 1995 (Cth) in relation to the oral evidence he provided under cross-examination about family violence, or drug related criminal offences, or conduct directed towards the mother and the child.
During her evidence on 30 May 2024, the mother was provided with a Certificate pursuant to s.128 Evidence Act 1995 (Cth) in relation to the oral evidence she provided under cross-examination about family violence and illicit drug use.
Documents
In support of his case the father relied upon:
(a)His Case Outline filed 27 May 2024.
(b)His Affidavit sworn 13 April 2024.
(c)Affidavit of Ms F sworn 23 May 2024.
(d)Notice of Risk filed 13 April 2022.
In support of her case the mother relied upon:
(a)Her Outline of Case Document (Final Hearing) filed 22 May 2024.
(b)Her Affidavit filed 3 May 2024.
(c)Notice of Risk filed 2 June 2022.
(d)Family Report of Ms S dated 10 November 2023.
(e)Exhibits M1, M2, M3, M4, M5, M6, M7 and M8
The Independent Children’s Lawyer relied upon:
(a)Outline of Case Document filed 24 May 2024.
(b)Family Report of Ms S dated 17 February 2023.
(c)Child Inclusive Conference Report dated 11 November 2022.
(d)Exhibits ICL1, ICL2, ICL3, ICL4, ICL5 and ICL6.
The parties’ proposals
The father
Until the final hearing commenced, the father sought final parenting orders which are set out in Annexure A to his Case Outline, including an order that he have sole parental responsibility for the child and that the child live with the father and spend time with the mother.
At the commencement of the final hearing, Learned Counsel for the father announced that the father’s position had significantly changed, and that the father concedes that the child will continue to live with the mother, and no longer seeks an order that the child live with him.
The father also abandoned his application for an order that he have sole decision-making responsibility for the child and seeks an order that the parents have shared decision making responsibility for major long-term issues relating to the child.
In relation to the spend time with arrangements for the child, at the commencement of the hearing the father sought an order that the child spend time with him:
(i)Each alternate Saturday from 10.00 am until 2.00 pm, for 2 months;
(ii)Each alternate Saturday from 10.00 am until 5.00 pm and Sunday from 10.00 am to 2.00 pm, for 2 months;
(iii)Thereafter, each alternate weekend from 6.00 pm Friday until 4.00 pm Sunday; and
(iv)Time on Christmas Day in each even numbered year from 10.00 am until 4.00 pm.
During final submissions, the father abandoned the above spend time with application and his Counsel informed the court that the father now seeks an order that the child spend time with him once each month supervised by a professional children’s contact supervision service in Suburb N, on such dates and at such times as determined by the supervision service, with the father to pay the fees for such supervision.
The mother
The mother originally sought final parenting orders which are set out in the Minute attached to her Outline of Case Document, including an order that the child spend time with the father supervised by a professional children’s contact supervision service on four occasions each year, and that the father be permitted to have written communication with the child on specified occasions.
During final submissions several orders sought by the mother in her Minute were not pressed[11] and Learned Counsel for the mother announced that the mother had changed her position and now seeks a no time order, and an order that there be no communication for the child with the father.
[11] The mother did not press proposed orders 3,4,5,10,13 & 14 in the Minute attached to her Outline of Case Document
In short, the mother seeks an order that she have sole decision-making for major long-term issues relating to the child, and an order that the child live with the mother and spend no time and have no communication with the father. Additionally, the mother seeks orders pursuant to s 68B of the Act[12] to restrain the father from:
(a)Contacting or communicating with the mother;
(b)Engaging in any behaviour towards the mother or the child which is violent, threatening or otherwise coercive or controlling or causes them to be fearful;
(c)Removing or attempting to remove the child from any school, day care centre, extra-curricular activity or from any person in whose care the mother has placed the child;
(d)Initiating any contact or spontaneous communication with the child in any form including by means of telephone, digital, electronic or social media.
[12] The mother seeks an order that some of the injunctions are made for her personal protection and the child’s personal protection and that, pursuant to s 68C of the Act, if a police officer believes on reasonable grounds that that the father has breached the injunction, the police officer has power to arrest the father without warrant.
The mother is willing to provide the father with medical information relating to the child by email, including any specialist report concerning the child, provided that the mother may redact any information which might disclose her residential address to the father.
The Independent Children’s Lawyer
The Independent Children’s Lawyer did not formalise her position until final submissions, at which time Learned Counsel for the Independent Children’s Lawyer informed the court that the Independent Children’s Lawyer seeks the following final parenting orders:
(a)That the child live with the mother.
(b)That the mother have sole responsibility for making major long term decisions relating to the child.
(c)That there be no order for the child to spend time and to communicate with the father, and that any time or communication would be at the sole discretion of the mother.
(d)That the father pay a proportion of the costs of the Independent Children’s Lawyer.
Order which will be made by consent
All parties agree that the child will live with the mother, and a final order to that effect will be made by consent.
Issues for determination by the Court
The Court must determine:
(1)Whether there will be an order that the child spend supervised time with the father or an order for no time.
(2)What spend time with order is in the best interests of the child.
(3)Whether the parents will have shared decision making for major long-term issues relating to the child.
(4)Whether injunctions are appropriate for the personal protection of the mother and the welfare of the child, and if so whether it is appropriate to attach a power of arrest pursuant to s.68C of the Act.
(5)Whether there will be an order for the father to pay a proportion of the costs of the Independent Children’s Lawyer
LEGAL PRINCIPLES
The final hearing commenced on 29 May 2024, and this parenting dispute is to be determined in accordance with the provisions of Part VII Family Law Act 1975 (Cth) (“the Act”) which are contained in Act number 87 of 2023, which came into operation for final hearings commencing on or after 6 May 2024.
A “parenting order” is defined at section 64B of the Act. The court may make such parenting order as it thinks proper.[13] When making a particular parenting order in relation to a child, the court must regard the child’s best interests as the paramount consideration.[14]
[13] Subsection 65D(1).
[14] Sections 60CA; 65AA
The Act provides that, in determining what is in the child’s best interests, the court must consider the following six matters:[15]
[15] Subsection 60CC (2)
(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[16] 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.
[16] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter
In contemplating the matters set out in s.60CC (2) the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to a child, or a member of the child’s family.[17]
[17] Subsection 60CC(2A)
Section 60CG of the Act requires the court to ensure that any parenting order which is made does not expose a person to an unacceptable risk of family violence, and is consistent with any family violence order.
Where, as in this case, the child is an Aboriginal child, the court must consider the child’s right to enjoy his culture as defined in subsection 60CC(3)(a) of the Act[18] together with the likely impact of any proposed parenting order upon that right.
[18] (3) For the purposes of paragraph (1)(b), the court must consider the following matters:
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration. Should a parenting order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues[19]. A parenting order which provides for joint decision-making by persons about major long-term issues relating to a child requires each person with such decision-making responsibility to consult with each other in relation to each such decision and to make a genuine effort to come to a joint decision. [20]
The witnesses
[19] Subsection 61D(3).
[20] Section 61DAA.
The father
The father witnessed family violence as a child in his mother’s relationship with her ex-partner. The father had no contact with his biological father, who was violent to his mother. During the father’s teenage years his mother was an alcoholic, and she was aggressive when drunk.[21] It is evident that the father had adverse childhood experiences, which most likely has negatively impacted the father’s wellbeing and affected his functioning.
[21] Family Report [30]
When he spoke with the court child expert, the father denied perpetrating any family violence or abuse against the mother or the child, and he denied all specific allegations of violence and abuse which were put to him by the court child expert. The father maintained such denials in his evidence to this court during the hearing.
The father has a criminal record for offences of family violence and drug dealing. As noted previously, the father chose not to disclose in his Notice of Risk that he was charged with family violence offences, although plainly he was charged and found guilty of violence offences relating to a previous intimate partner. [22]
[22] Exhibit M7
The father has been the defendant in ADVO’s made for the protection of two of his former female partners, one in 2010 [23] and another in 2019,[24] and an ADVO made against him for the protection of his mother in 2012.[25] There was an ADVO in place from late 2021 until early 2023 against the father for the protection of the mother.[26]
[23] Exhibit M1
[24] Exhibit M4
[25] Exhibit M2
[26] Mother’s affidavit [6]
During his evidence the father expressed his firm view that there is no need for him to engage in a men’s behavioural change program or a course of individual counselling to address concerns regarding domestic violence, notwithstanding that such programs were recommended by the family consultant as a pre-condition to the child spending any unsupervised time with the father.[27] The father said under cross-examination that he does not need to do the courses recommended for him by the family consultant because:
I have a [professional qualification]…I am more qualified than the family consultant.
[27] Family Report [182]
Under cross-examination the father conceded that:
(a)When he commenced his relationship with the mother in 2020, he was using drugs.
(b)He continued to deal drugs from his home, even after the home invasion in 2020 when several men entered wearing hoodies and carrying weapons.
(c)Until September 2021, the child was present in the father’s household while the father was selling drugs several times each week from home.
(d)In late 2022 police executed a search warrant at the father’s home and found large amounts of a drug which the father was selling illegally. The father volunteered evidence to the court, during his cross-examination, that he had a “really good black-market supplier of medical quality” drugs. Following the police search, the father was charged, and later convicted, of drug offences and is still serving his sentences.
(e)The father did not inform his employer of his criminal charges, and he was later forced to resign his employment as an educator after his employer discovered the drug charges.
(f)His partner Ms F was charged with a drug offence following the police raid, and she was convicted and sentenced to a Community Corrections Order.
Under cross-examination, the father was forced to concede that the proposal in his Initiating Application filed in April 2022, that the child live with him, was made when the father was illegally selling drugs from his home most days of the week. Rather than simply answering the question he was asked about that issue, the father chose instead to volunteer evidence including that his proposal for the child to live in a home where he was dealing drugs was “safer than being in a house where they are [producing drugs].” That evidence was plainly a reference to the maternal grandparents, who the father blames for introducing him to the business of selling drugs. Throughout the father’s evidence he made several attempts to deflect onto other people the responsibility for the choices the father has made, including his “useless first lawyer” and a “biased” staff member at L Centre, as well as the mother and her parents.
Under cross-examination, the father denied that he had any health issues, before saying that he has a “prescription” for cannabis for his anxiety and insomnia. The father said that he “sees” Dr R at T Clinic about every three months, although it appears that the consultations with Dr R are held electronically and are not in person. The father did not answer the call made for him to produce his “prescription” for cannabis. Counsel for the father conceded that the document which the father produced in response to the call was not a “prescription” but was an online order form.
The father conceded that he has not complied with the order made on 23 February 2024 which required him to undertake a hair follicle test by 31 March 2024. The father claimed that he could not afford the cost of the test, but he did not explain why he could not afford a HFT when he is working, not paying any child support, and able to afford to buy cannabis. The father conceded that if he had undertaken an HFT the results would have been positive for cannabis.
The father said that he has used anti-depressant medication in the past, but the medication did not work for him, and he stopped taking it, he says in consultation with his treating doctor. The father has provided no medical evidence which demonstrates that cannabis is an effective treatment for his mental health conditions, not even a prescription by an appropriately qualified doctor. The father said that he saw a psychologist called “Mr U” fortnightly in 2023 and has not seen any psychologist in 2024.
The father deposed that he is concerned about the mother’s ability to provide proper and adequate care for the child due to her mental health issues and use of illicit drugs[28] although at the outset of the hearing he conceded that the child will continue to live with the mother.
[28] Father’s affidavit [7]
The father was critical of the mother’s parenting practices and her parenting capacity throughout his affidavit, and during his oral evidence. He complained that the mother would go out on at least a monthly basis with her friends [29] but he did not explain why this was a problem. The father conceded that he was having an affair with Ms F during the parents’ short relationship, and that his affair with Ms F caused the mother distress. It is neither surprising nor unreasonable for the mother to have socialised with her friends during the parents’ relationship.
[29] Ibid [43]
The father deposed that the mother “applied for an Apprehended Violence Order against me.”[30] In fact, it was not the mother, but rather a New South Wales police officer, who applied for the ADVO against the father for the protection of the mother.
[30] Ibid [11]
The father deposed that the mother’s attendance at supervised visits was poor with approximately 30% of appointments kept, and a pattern of last-minute cancellations.[31] The mother admits there were many occasions where she needed to cancel supervised visits and reschedule them, due to the child being unwell or transport issues.
[31] Ibid [23]-[24]
The mother does not drive, and she struggles with anxiety. The mother says that supervised visits caused disruption to the child, and he was not settled with the father, who needed to be reminded several times about how to interact with the child. The mother says that she was living in a chaotic situation back then and that she sometimes felt “triggered” by thoughts of having to see the father. The mother has deposed that since she relocated to her current residence in Region E, Sydney, she has offered two different contact services at Suburb N and at Suburb V, but the father would not agree to travel to either of those locations. The father said that he could not take time off work.
In his evidence the father demonstrated his lack of respect for the mother as a parent. He deposed that she “has done nothing about” the child’s diagnoses of autism and developmental delay[32] and that she “previously ignored” the child’s “Severe Developmental Delay”.[33] Contrary to the father’s evidence, and for reasons discussed further, I am satisfied that the mother has taken many positive steps during the past three years since the parents separated to obtain assistance for the child with respect to his medical and developmental needs. The father’s focus appeared firmly centred around the parental conflict, and he plainly asserted his superior parenting capacity, and appeared oblivious to the fact that the child’s needs since separation have been met solely by the mother.
[32] Ibid [6]
[33] Ibid [31]
I take into account that the father raised with the mother his concern that the child needed to be considered for an autism diagnosis, which indicates that the father thinks about the child’s needs and that he was observant of the child, and aware of some of the signs which children with autism might exhibit. However, the father’s criticism of the mother for waiting until early 2023 to have the child assessed for autism is unwarranted. In 2022 the child was only one year old, and he may well have been too young to be accurately assessed at that time for the purposes of a diagnosis of autism.
The father does not pay child support, which in my view demonstrates a deficiency in his attitude to the responsibilities of parenting. The lack of any financial support for the child has restricted the mother’s capacity to pay for the costs of meeting the additional needs of the child.
The father’s presentation in the witness box was concerning. He was at times evasive, argumentative, non-responsive, arrogant, and he was not prepared to make appropriate concessions. The father took every opportunity to advocate his own case and was warned to respond to questions. He appeared to over value his ideas, particularly in relation to the appropriate management and treatment for his mental health conditions, and in relation to his view that his level of knowledge and skill in parenting matters is significantly superior to that held by the mother, notwithstanding that it is the mother who has been meeting the demands of parenting a very young child with additional needs since the parental separation.
The father he maintained in cross-examination that he did not need the mother’s suggestions about how to manage the child, including as to his diet, which provided to L Centre in connection with the child’s supervised visits. The father appeared very focussed on the parental conflict rather than on the child’s needs, in circumstances where the mother was clearly providing her assistance so that the child was comfortable during the visits with the father.
Although the father denied the proposition that he considers himself much smarter than anyone else, at one point during his cross-examination the father pushed his chair back from the witness box and pronounced that the entire court process is of no benefit to him or to the child. The father said:
“… I think that this whole process is incompetent… I think that this whole family court is a ridiculous, that I haven’t seen my son in two and a half years and people should talk about it, that’s what I think. I think it’s unfair…unfair to the applicant… Do you think that this should be the norm? Do you honestly think that men should be treated like this?... All you have to do is tick some boxes at the top of a form, and then I get thrown through all of this”.
In my view, the above passage of evidence from the father demonstrates his propensity for deflection, his arrogance and his lack of insight, and that he continues not to take responsibility for his past harmful conduct and the impact on other people.
During cross-examination by the learned counsel for the mother, the father was asked about his Aboriginal culture, and he said that it was not “women’s business” or “a part of our culture to give women’s business” and “I don’t share.” The father did not adduce evidence from any person qualified to speak about relevant cultural practices, and I am unable to place any weight on his evidence of Y People’s cultural practices. The father said that “She can contact [Y People]” which I infer is a reference to the mother being able to contact Y People. The father said that he does not have any relevant document to assist the mother, and reiterated that “knowledge must be passed down from a man” and that “she can obtain it herself.”
I accept that the father loves the child, and that he could offer the child opportunities to connect with his paternal family and with his Aboriginal culture. The father says that he wants to be part of the child’s life, although it appears that the father has not prioritised spending time with the child since June 2023. The father would like to be included in decision-making for the child, in part because he believes himself to a superior parent to the mother and more capable than she is of providing for the child’s medical needs.
Ms F
Ms F is the father’s current partner.
Ms F reported that her father was an alcoholic and extremely physically abusive to her until he passed away when she was seven years old. It is evident that Ms F has had adverse childhood experiences which have impacted her wellbeing and her functioning.
Under cross-examination, Ms F refused initially to disclose her current mental health diagnoses and she said that “you don’t need to know that.” When pressed, Ms F said that she is diagnosed with depression, anxiety, and PTSD. She said that she tries to see her psychologist Ms W every month or two.
Ms F became visibly distressed during cross-examination about her use of cannabis. There was nothing improper or oppressive about the manner or content of Counsel’s questions, and there was no objection by Learned Counsel for the father. Upon observing Ms F’s visible distress, including crying, the court enquired about her difficulty and what assistance she needed. Ms F responded:
“My difficulty is in being asked questions by a man. Could I have a woman ask me questions?”
I explained to Ms F that Counsel is entitled to ask her questions, and Counsel thereafter made obvious efforts to accommodate Ms F’s patent vulnerability.
Ms F was diagnosed with Major Depressive Episode and Post Traumatic Stress Disorder when she was 14 or 15 years old and was hospitalised at 17 years of age for self-harming. She was prescribed medication which she says really helped her stabilise her mental health. [34] Ms F reported that she has been engaged with her psychologist Ms W for six years, by way of ongoing telephone appointments. When Ms F spoke with the family consultant, she reported she was prescribed medication.[35]
[34] Family Report [56]
[35] Ibid [57]
Ms F has used cannabis since she was 17 or 18 years old.[36] For the past 2-3 years she has had a prescription for medicinal cannabis. She has been taking cannabis for her mental health issues and she said that she is trying to wean herself off her other medications. Under cross-examination Ms F said that she obtains her prescriptions for cannabis via telehealth appointments with different doctors, including one Dr Z. Ms F’s evidence about the amount of cannabis prescribed for her was confusing and hard to follow. She said that the more money she has available the more cannabis she purchases.
[36] Ibid [59]
Ms F has a criminal record for drug offences, including a drug offence in 2019, and a drug offence in 2022 in respect of which she was sentenced to a Community Corrections Order.
I accept the family consultant’s assessment that Ms F presents as a very vulnerable young woman. Ms S did not identify any immediate concerns about Ms F having contact with the child, who has no existing relationship with Ms F, but noted Ms F’s trauma history, mental health issues, drug misuse issues and criminal offending.
The mother
The mother reported that her childhood was impacted by the maternal grandmother’s significant mental health issues, including a diagnosis of a mental health condition.[37] Under cross-examination the mother said that both her parents were “narcissists” and that she has stopped all contact with them, and she can’t forgive them for hiding so many things from her. It is evident that the mother has had adverse childhood experiences which have impacted her wellbeing and her functioning.
[37] Family Report [44]
The mother has a qualification which she obtained in 2007 and for five years prior to the birth of the child the mother worked at AA Centre. The mother has not worked since the birth of the child.
The mother experienced the home invasion while living with the father in 2020, when she was pregnant with the child.
When she spoke with the court child expert, the mother reported a history of family violence perpetrated by the father during the parents’ relationship:
…summarised as verbal abuse, emotional and psychological abuse, controlling behaviours, physical abuse, the use of other types of physical force, threats to harm himself, the mother and [X], being forced or pressured into sexual activity, and the father owning and having access to weapons.[38]
[38] Child Impact Report [15]
The mother provided plausible, consistent, and credible evidence about the father’s violent conduct towards her during their relationship, and she presented as thoughtful and child focussed witness, and she was mainly calm, although at times she was visibly upset during her evidence. The father’s history of violence in his relationships with four separate females, including his mother, and his lack of candour in relation to several matters, including several matters which are outlined in these reasons, leads the court to conclude that the mother’s evidence about what occurred during the parents’ relationship is more reliable than the father’s evidence, and that the father’s denial that he is a perpetrator of family violence ought to be rejected. I am satisfied and find that the father perpetrated family violence against the mother during their relationship, as the mother has detailed in her evidence and as detailed in independent third-party evidence which is before the court.
Although there is no evidence that the father has perpetrated family violence since the parents separated, his past conduct has had an adverse impact on the mother and the father’s failure to acknowledge his conduct and make amends perpetrates the significant level of mistrust between the parents, and negatively impacts the co-parenting relationship. The father’s failure to acknowledge and to take responsibility for his choices also raises concern that the father has not changed and that there is a risk that he might expose the child to family violence in his current and any future intimate partner relationships, which I am satisfied would, if it occurred, cause the child significant harm in the short term and the long term. It also raises concern for the mother’s psychological wellbeing if she is triggered due to her past experiences of the father and her increased level of anxiety may impact on her capacity to meet the needs of a very vulnerable child.
The mother annexed to her affidavit examples of the father’s inappropriate communications with her solicitor at City M Legal Aid.[39] She also annexed a letter which is addressed to the father from Director Client Services at Legal Aid New South Wales dated 25 August 2022[40] which informed the father that his contact with Legal Aid was restricted to contact in writing only for the next 12 months. The clear direction to cease calling or attending at the office in person did not stop the father from calling City M Legal Aid office again, and he is accused of using a third person to call the office on his behalf, which he denied. In September 2023, the father wrote to the mother’s solicitor that she is “an absolute joke of a pettifogger solicitor” and “incompetent”.
[39] Mother’s affidavit Annexures
[40] Ibid Annexure G
I am satisfied that the father can present as forceful and incessant when communicating with other people, and I accept the mother’s evidence that his manner of communication with her can cause her to feel anxious.
In terms of the child’s current medical and developmental needs, the mother gave oral evidence, including evidence in chief, about recent tests which suggest the child may have very limited sight and is able to see only shapes and shadows. The child was due to have an appointment with Dr BB, a Paediatrician in Suburb N, the week after the hearing. In the meantime, the child is prescribed glasses and has been re-assessed for his NDIS Plan. Under cross-examination by Counsel for the father, the mother said that she is informed that the child may take longer to adjust to wearing glasses, due to his autism.
The child has had multiple appointments with occupational therapists and speech therapists arranged by the mother. The mother admits that she has failed to take the child to two medical appointments in the past because she has not held a licence to drive. The mother said that she is ready to obtain her driver’s licence, and she renewed her Learner’s permit in 2023. The mother was saving for a car at the time of hearing.
The mother says that she has not used illicit drugs since December 2022. She is legally prescribed cannabis which she says she has not been able to purchase since H was born in 2023. The mother did not complete a hair follicle test in May 2022. In early 2024 the mother attended to provide a sample for hair drug testing in compliance with the order made on 23 February 2024 and the result was negative for all drugs tested, including cannabis.[41]
[41] Mother’s affidavit Annexure L.
While the mother has a prescription for cannabis, she does not fulfil her prescription due to her budget. The mother said that she has never really taken the prescribed cannabis because she is scared that she will not wake up, and because she cannot afford it. The mother gave persuasive evidence under cross-examination that she can manage her anxiety with regular meditation, and mindfulness activities with the child, and she said that music helps her as well. The mother said that she is less anxious since moving away from Region D, and that she is now settled and family orientated, and she does not need cannabis anymore now she has more coping mechanisms. Under cross-examination, the mother said that while she was using cannabis she felt more on edge and that she likes not having cannabis any more.
I pause to observe that the wrong medication can exacerbate a condition. Reflecting on the father’s evidence about his use of cannabis, and taking into account his presentation in the witness box and his conduct while he has been medicating with cannabis, it occurs to me that the father’s anxiety and depression may not currently be adequately treated or managed by his dependence on cannabis, notwithstanding the father’s strongly held view that cannabis is the only appropriate treatment for him. It might assist the father if he seeks advice and assistance about how to treat and manage his mental health, from a suitably qualified medical practitioner who has no personal stake in the medicinal cannabis industry.
The mother says she is supportive of the child learning about his Aboriginal culture. She would like the father to provide her with any document which demonstrates that the relevant Land Council acknowledges the father’s Aboriginality, because that information will assist the mother to obtain support for the child, including support for him to participate in his culture.
The mother has vulnerabilities which require careful consideration when determining what orders are in the best interests of the child. In her affidavit, the mother maintained that she is extremely fearful of the father and his presence in her life, and that her fear creates anxiety which impacts upon her ability to parent her children. The mother readily agreed, in cross-examination by the father’s Counsel, that moving from Region D has been very positive for her, and that mindfulness and music has helped her manage her anxiety. She agreed that she has not had any contact with the father for a long time, and that the finalisation of the current proceedings will remove another stressor for her.
The mother said that her proposal for the child to spend supervised time with the father on four occasions each year was made because she has come to understand more and more about the child’s condition and she is very busy trying to obtain help for the child who is non-verbal, with global delay, and who has problems with his eyesight and his hearing. The mother said that every three months the child attends specialist appointments, and the child also attends other medical appointments, including for his vision and his hearing, and regular therapies. The child attends childcare twice each week. The mother said that due to the child’s additional needs, and because she has two children in her care and she does not want her younger child brought into contact with the father, she is not confident that she can facilitate supervised visits for the child with the father once each month, and she thinks that she could definitely get the child to the contact centre four times each year. She said that the benefits to the child of spending time with the father four times each year are that he will come to understand that the father is his Dad. She agreed that the child’s paternal half-sibling could attend supervised visits with the father.
The mother demonstrated a high-level of awareness of the child’s needs, and she provided a detailed description of the child’s daily routine, and the signs that the child is overstimulated and how she manages to settle him. The mother has sought help from a counsellor to assist her to manage the child’s emotional responses, including when the child clings to her and cries when he is reluctant to separate from her. The mother gave evidence that she considers that it is very important to follow recommendations of the child’s paediatrician and other qualified clinicians, and she is concerned that the father misinterprets information which she provides about the child. The mother said that she would prefer it if the father has information directly from the child’s medical professionals.
THE EXPERT EVIDENCE
Court Child Expert – Mr O
The court child expert Mr O prepared a Child Impact Report dated 11 November 2022. Mr O was not required for cross-examination at the hearing.
The Child Impact Report provided preliminary expert advice about the needs and experiences of the child. Mr O’s assessment was limited, because he did not meet or observe the child as part of the assessment, and no Part 2 feedback occurred because neither parent complied with the request to attend Part 2 of the assessment. Supervised time for the child with the father was scheduled to commence about one week after the assessment, and the father declined to participate in observations with the child and expressed his preference for the first occasion of time to be facilitated and supported by L Centre at Suburb C.
The court child expert reported that the father was seeking shared parental responsibility and that he proposed an arrangement which, in the short term, would provide opportunities for the child to remember him and build rapport, and thereafter a 50/50 week about arrangement. The father expressed wanting the child to attend a private school.
The father reported that his Aboriginal heritage comes from his paternal grandfather’s grandmother, and that he never met his paternal grandfather. The father believes that the paternal great-great grandmother was part of the stolen generation, and from Y country. The father spoke of working on country and being involved in teaching Y language. The father expressed his belief that the child should be learning about the Aboriginal country the child is currently living on, and expressed his belief that the mother would support the child’s knowledge of his Aboriginal culture and heritage.
As noted already, the father did not disclose to the court child expert that shortly prior to the assessment the father was charged with several drug related offences.
The father reported no safety or risk concerns for the mother, noting that he had very limited or no knowledge of Mr G and his family, and the father’s concern in relation to the maternal grandparents’ home related to hygiene and mould issues in one room of the house, which the mother conceded, and the maternal grandmother’s significant mental health history.[42] The court child expert reported that the mother denied any safety or risk concerns in relation to Mr G, his family, and the maternal grandparents[43] and that she appeared to minimise any concerns relating to Mr G and his family. The court child expert recorded that Mr G has a conviction for drive while illicit drug present in blood from early 2022.
[42] Child Impact Report [17]
[43] Id
The court child expert reported that the mother “expressed significant angst about any sort of direct contact with the father” and that she proposed that the child live with her and spend supervised time with the father until the child is old enough to call the mother or the police should any concerns arise.[44] The mother expressed her wish to know more about the child’s Aboriginal heritage and she wished that the father would impart more of his knowledge to her so that over time she can support the child to learn about and participate in his culture.
[44] Ibid [5]
The court child expert recorded the mother’s reports of the child’s medical reviews, specialist appointments, and her attendance at the CC Hospital in mid-2022[45] when she was told that the child no longer required a device in relation to his medical condition. The child had attended at least one appointment with Dr DD, a paediatrician at City M Hospital, and the mother arranged for the child to be seen by a Dr EE in early 2023 for a second opinion.
[45] Presumably with the child, although it was not clear on the evidence.
The child has received physiotherapy from a very young age but has not maintained an engagement due to affordability issues, and he was due to be reviewed by a service at Suburb FF in December 2022.[46]
[46] Child Impact Report [11]
The court child expert recorded that both parents fondly referred to the child and spoke with care about the health issues he has faced to date:
…albeit with significantly different understandings of the antecedents of his [medical condition] and the previous and current medical advice and management regarding this.[47]
…The parents’ vastly different reporting regarding some of the key issues and considerations in the matter raises questions about the transparency and credibility of one or both parents…[48]
If the Court finds that the mother’s reporting of family violence and abuse is accurate, the father’s absolute denial of perpetrating any form of family violence or abuse raises significant concerns regarding his parenting capacity, empathy for others, and ability to be child-focused. Conversely, if the Court finds that the father’s reporting is accurate, the mother’s motivation for making such allegations would be in question.[49]
[47] Ibid [8]
[48] Ibid [34]
[49] Ibid [37]
In relation to the parents’ mental health, they both reported being prescribed cannabis for around 18 months, and both reported that this was effective.
The father claimed to manage his anxiety and insomnia with cannabis. He reported daily use for 3-4 years for the purpose of self-medication for anxiety and insomnia[50] and is now prescribed cannabis.
[50] Ibid [20]
The mother conceded that she has struggled with anxiety and that this has resulted in her struggling to engage with medical professionals in the past, but she said that this has improved during and since her pregnancy.[51]
[51] Ibid [23]
The safety and risk concerns of the mother in relation to the father are summarised by the court child expert as follows:
In summarising her safety and risk concerns in relation to the father, the mother pointed to the father’s “unhealthy relationships with anyone and everyone” which is of concern to her regarding how he would treat and discipline [X], his “lies,” untruthfulness and his lack of acknowledgement of many issues she has raised, including his behaviour, violence and abuse towards her and [X], and his ongoing association with criminals and criminal activity, believing that he is still associating with and involved in drug dealing. The father does not believe there are any safety or risk issues in relation to himself.[52]
[52] Ibid [25]
The court child expert recorded that the child would likely have no memory or knowledge of the father at November 2022, noting that the child had spent no time with the father since December 2021. The court child expert opined that:
…Regardless of interim and final parenting arrangements, it is important for [X] to have develop an age-appropriate knowledge and understanding of his father and how this relationship differs to any new male figures who the mother forms some sort of relationship with.[53]
[53] Ibid [26]
The unchallenged evidence of the court child expert which is contained within the Child Impact Report has been of considerable assistance to the Court, and I accept and place significant weight on Mr O’s evidence.
Regulation 7 Family Consultant – Ms S
The family consultant prepared a Family Report dated 10 November 2023 and she was cross-examined at the hearing.
It is crucial to the assessment process in parenting proceedings that each parent provides accurate and truthful information to the family consultant. I accept the evidence of the family consultant that where a parent deliberately misrepresents the truth during an assessment then it is very difficult to reach an understanding of the risk factors affecting the child.
The family consultant interviewed the father during September and October 2023. Under cross-examination, the family consultant confirmed that during the father’s interview he did not disclose or convey to her that he had resigned his position as an educator in early 2023. The father did not tell the family consultant that he was no longer employed as an educator, and he positively represented to her that he was employed on a full-time basis as an educator. The father disputed that he had been involved in drug dealing from his home[54] which denial is plainly untrue noting his later conviction for supply.
[54] Family Report [91]
I pause to note that the father’s employment as an educator ended after his employer raised concern with him following the drug charges against him in late 2022. During his oral evidence the father asserted that the fact he was or was not an educator is irrelevant, and he sought to deflect responsibility for misleading the expert. The father’s evidence that his occupation is irrelevant is disingenuous in circumstances where the father sought to leverage his education, training and experience in these proceedings and relied upon his employment as an educator to assert his superior knowledge and skills.
Having regard to the evidence overall, the father minimised the seriousness of the home invasion in November 2022 when he spoke with the family consultant.[55]
[55] Ibid [76]
I am satisfied that when the father spoke with the family consultant, he failed in his duty to provide full and frank disclosure to the court and to each other party.[56] By such failure, the father created the situation where the family consultant was not able to complete a full and accurate assessment of the risks in his household.
[56] Rules 6.01 FCFCOA (Family Law) Rules 2021
The family consultant considered that the issues evident in the police material relating to the father’s conduct in 2010 and 2019, along with the ADVO made for the protection of the mother, and the father’s denials and his attitude to his offending, raise concerns around the father’s use of coercion and control, and suggest that there are significant risk factors to be considered in relation to his intimate partner relationships and any children in that environment. The family consultant expressed that in her view that it appears that there is an ongoing pattern where the father has not taken responsibility for his choice to use family violence.
During cross-examination, the family consultant expressed her concern about the father’s recent drug convictions, and her concern that he has not completed a recent hair drug test, particularly noting his criminal history and what he reported about his past drug use. The family consultant does not think an order which requires the father not to use drugs while the child is in his care or for a period beforehand is sufficient to ameliorate risks to the child. When Learned Counsel suggested that if the father was able to show a period where he was abstinent from drug use, this might be sufficient to alleviate her concern, the family consultant pointed to the fact that there is no “base line” and that any restraint depends on the father “being honest”. Even if the father was complying with the conditions of his current sentence, with no breaches alleged in the past six months, the family consultant said this doesn’t evidence that he isn’t using drugs.
The court is entitled to infer that drug misuse is continuing. The father’s failure to comply with the order for drug testing, and his failure to provide evidence of his prescription, means that there is no evidence with which to assess whether the father is compliant with the “dosage” in any “prescription” he may have for medicinal cannabis. The court is entitled to infer that the father knows that the results of the ordered drug testing will not assist his case. He has demonstrated no insight about how his drug history presents risks to the child, particularly if he is still misusing drugs or having drug associates in his home, and this raises concern about whether the father has the capacity to effect change in his behaviour.
The family consultant agreed that the recommendation which she made, that before the child’s time with the father would progress to unsupervised time the father should engage with programs, still stood, and she said that the father’s failure to engage in a men’s behaviour change program was, in her view, sufficient cause for the child’s time with the father to remain supervised. She said that if the father did engage in the behaviour change course and was assessed to have some level of insight or reflection into his past behaviour, and if he provided evidence that he is not misusing drugs, the court could then consider whether unsupervised time should occur. The family consultant expressed her concern about the father’s failure to act on the recommendations in the family report, and her concern that he is unwilling to do so. In her view, this demonstrates the father’s lack of child focus, given his reported past behaviour and the benefits to the child if he successfully completes the courses recommended.
The family consultant was aware that Legal Aid Qld had raised concern that the father’s communication with that office had been direct and quite problematic. The family consultant said that the father presented in a very direct and, sometimes, defensive manner, and that it seems he doesn’t have insight into how his communication style is perceived by others, nor does he have insight into the impact of his communication style on the co-parenting relationship. This would likely cause issues for the mother if she were required to communicate with the father, noting that the mother’s experiences with the father are quite negative and she may find it difficult to communicate with him due to her experiences.
During her interview the mother acknowledged that she and the father have exchanged some positive text messages but expressed her concern about the father’s communication with herself and her solicitor and she stated that “his very forceful and incessant communication created anxiety for her.”[57]
[57] Family Report [52]
Having regard to the Police material and to the serious concerns raised by the mother, the family consultant was of the view that issues around the communication style of the father, and his behaviour towards the mother and a previous intimate partner, remained a risk and that this risk creates an unsafe situation for the child. The family consultant expressed her view that any time between the child and the father would need to remain supervised for the child’s safety, until such time as the father has taken appropriate steps to demonstrate that the risks of harm to the child in his household are ameliorated.
The parents reported that the child was diagnosed in early 2023 with Autism Spectrum Disorder and Global Developmental Delay. The family consultant noted that the child presented as:
…largely…non-verbal, aside from some babbling. He appeared to enjoy jumping, flapped his arms throughout the observation and his eyesight appeared limited. [Ms Thorp] reported that [X] had an MRI and that he has been identified as having limited sight […].”[58]
[58] Ibid [8]
The child has some issues around his vision, which the family consultant said places him in a “really vulnerable and scary place.” Knowing what is going to happen at any given point in time is important for the child. Children with specialised needs have a greater need to feel safe and to have consistency in their daily routines. The family consultant said that the level of the Autism diagnosis suggests that the child’s difficulties are severe and expressed her view that there needs to be real consideration about the support offered to the child and the mother, so that the child lives in an environment which is free of conflict, family violence and other risk factors.
Under cross-examination the father said that he would do what he thought was right in relation to obtaining assistance for the child’s additional needs. The family consultant expressed concern for the child if the father’s actions were contrary to medical advice or any treatment plan in place for the child, because it is extremely important for the child that he has routine, stability and consistency across both households.
The family consultant was taken to evidence that the father has not taken the opportunity to spend supervised time with the child in Suburb N since June 2023. She expressed her concern that the father appears to have chosen not to spend time with the child when time was available, and he has failed to make any other arrangement that is child focused, including an arrangement which would see the child not travelling as far as Suburb N. Failing to attend upon time or to make efforts to see the child suggests that the father finds it hard to put aside the adult issues to focus on the child’s needs and suggests some rigidity in his approach and raises further concerns around coercion and control.
The mother reported that she lives with the child and Mr G and their daughter H, and with Mr G’s parents and sister, and that Mr G’s parents had recently sold their home and the mother and Mr G and the children would need to move out and find alternative accommodation. The family consultant expressed concern that the mother appeared evasive and avoidant at times, and had refused to bring H and other family members to the observation session, despite a request to do so. The family consultant noted that it was a significant limitation to her assessment that there was no observation of Mr G with the child, and that the maternal half-sibling H was not brought to the observation session. The mother presented as highly anxious and worried, and this impacted on her ability to engage with the assessment process. Under cross-examination the family consultant said that there were indications that the mother wanted to do her best, but she was finding it quite difficult due to her experiences of the father. The mother’s failure to comply with the reasonable requests of the family consultant did create a situation where the family consultant was unable to complete a full assessment of the risks in the mother’s household.
Mr G was interviewed by the family consultant, and he presented as co-operative and friendly and was not observed to have any difficulties. He reported that he was bullied at school, and that he has a criminal record for an offence at 19 years old, and that in 2023 he was charged with a drug driving offence, which he said was due to him using prescribed medicinal cannabis. He reported that he had a drug misuse problem from age 15 years to 17 years, before ceasing drug misuse. He reported that he was diagnosed with ADHD, and depression and anxiety in 2018 which is managed through his General Practitioner through a Mental Health Care Plan. He has previously been prescribed antidepressants, but in 2023 he obtained a prescription for medicinal cannabis, and he reported that his mental health is good, that he has a good perspective, and he loves his work.
The family consultant accepted the proposition that any significant distress on the part of the mother can have a deleterious effect on the child, and she said that if there is a pattern of communication from the father to the mother that is abusive, controlling or problematic then that can influence the mother’s capacity to provide care for the child. She noted that the mother presents as a very vulnerable person, and it is important that the parenting arrangements meet the needs of the child and the mother, because any significant negative effect on the mother will likely have a negative effect on the child, and parenting arrangements that support the mother’s mental health, and her access to services to coordinate the child’s care is the priority.
When invited to express her view on the mother’s original proposal that there be professionally supervised time for the child with the father four times each year, the family consultant said that it was very difficult to comment, and that she would need more information about the child’s needs, and about his capacity for memory. On the one hand, supervised time four times each year is unlikely to provide the child with an opportunity to form a meaningful relationship with the father, but it might be enough to do so as the child grows older. The child may not currently have a recollection of the father, and supervised time may benefit the father more than the child at this stage. However, if the child does have the capacity to remember his time with the father, then supervised time four times each year might provide him with an opportunity to know who his father is and provides a suitable alternative to no time for the child with the father.
In relation to the issue of the child’s Aboriginality, the family consultant said that it would be appropriate for the father to provide the mother with information about the child’s cultural needs and that if the father had such information and did not provide it to the mother then this would be of concern because it would indicate a lack of child focus and suggests that the father’s issues with the mother are being prioritised over the child’s needs. She said that if the father isn’t prepared to provide relevant information to the mother, then he could provide information to the child’s NDIS Provider.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
the child; and
each person who has care of the child (whether or not a person has parental responsibility for the child).
I accept the evidence of the family consultant that for the child’s safety and wellbeing he must live in a household which is free from neglect, abuse and family violence.
The mother and the Independent Children’s Lawyer contend that the child will be placed at an unacceptably high risk of harm if he spends time with the father which is unsupervised because there is a possibility that the child will be exposed to family violence in the father’s household, and because the child’s medical and developmental needs may be neglected because the father’s parenting capacity is diminished as a result of his poorly managed mental health, his personality issues, and his drug misuse.
As I have noted previously in these reasons, the father has a concerning history of perpetrating family violence, which he refused to concede in the face of credible and consistent evidence that he is a perpetrator. The father took no responsibility for his behaviour, and often sought to deflect his behaviour onto other people. The family consultant agreed with a proposition put to her in cross-examination that the father is at an early stage of making necessary changes in his behaviour. Having had the advantage of hearing all of the evidence, I am firmly of the view that the father is at a pre-contemplative stage of understanding that before he can provide a household for the child which is safe and free from family violence and exposure to criminal activity, the father must acknowledge and accept full responsibility for his past harmful conduct, and the impacts of his behaviour on the mother and others, and he must demonstrate that he has undertaken meaningful change to address his past.
I accept the submission made on behalf of the mother, that there are risks to the child’s safety arising from the father’s involvement in the drug industry, and his overvalued idea that cannabis is an appropriate treatment for his mental health issues. The father did not say he would stop dealing drugs and he did not say that he would not use illicit substances. The high point of the father’s evidence in relation to his rehabilitation for drug offences is that he is serving his current sentence until late 2025 and will go to prison if he breaks the conditions of his bond. He added “Cannabis will probably be legal by then.” The father said that he has decided to put all his efforts into changing the legislation. He said that he blamed the mother’s parents for his pattern of drug offending, and the father had the following exchange with Counsel for the mother:
Counsel: How can you continue to blame the mother’s parents?
Father: When you get introduced to a good thing it is very hard to break it.
I accept that in some cases the court makes an order for supervised time for a child with a parent provide an opportunity for a child to form a connection with a parent, if it is safe to do so, and assist in the formation of the child’s identity and ameliorate possible feelings of grief, loss and rejection in the longer term.
The child has not spent time with the father since June 2023, at which time the child was 2 years old. Currently, there is little if any existing relationship between father and child, and as such there is no relationship to sever. Under cross-examination the family consultant said that it is likely that the child has no current relationship with the father and that the child would require a re-introduction to the father.
An order which does not allow for any time or communication between the child and the father will result in the child not having any opportunity to identify who his father is, nor will the child have an opportunity to understand that he has a half-sibling in the father’s household. The mother expressed that she is not comfortable to communicate with Ms F for the purposes of facilitating time for the child with his half-brother.
In a case such as the present, the goal of the supervised time would be to meet the child’s need for identification with and knowledge of his father, and hopefully also his half-brother. Another goal of supervised time would be to alleviate feelings of rejection the child may feel, particularly as he gets older, if he is deprived of knowledge or understanding of the father.
The court is mandated to make the order which promotes the safety of the child. The child has spent time with the father which was supervised between November 2022 and June 2023, and the child reportedly responded well to the father and enjoyed his time with the father in a supervised setting. There were some concerns raised about the father’s interactions with the child in the supervised setting, but on any view the concerns did not relate to the child’s safety or to the father’s attitude to the child, which appeared positive. In my view an order which provides for professionally supervised time between the child and the father promotes the safety of the child and the mother by ameliorating the risk that either of them will be exposed to family violence or risks associated with the father’s past criminal activities.
Professionally supervised time for the child with the father would allow the child to develop an understanding of who his father is and would provide opportunities for the child to understand that he has a brother, which is potentially of significant benefit to the child as he gets older. Provided that the father takes up the opportunities to spend time with the child, the child will come to know that his father has not rejected him and that the father has the child in mind.
The father seeks that occasions of supervised time occur twelve times each year. The goal of supervised time is not to meet the needs of the father. In my view, an order for monthly supervised time between the father and the child would create significant logistical difficulties for the child and the mother, given the child’s routines and additional needs and the mother’s role as the primary caregiver for two young children.
The mother originally sought an order that supervised time occur on four occasions each year and she said under cross-examination that she was confident that she could facilitate such time. The mother, to her credit, and notwithstanding that she remains quite fearful of the father, demonstrated throughout her evidence her child focus and her ability to prioritise the needs of the child over her own needs. The mother gave evidence that she would try to make supervised time fun for the child and that she was willing for the child’s paternal half-sibling B to have a relationship with the child if B was able to attend supervised time with the father. I consider that the mother has the capacity to cope with an order which provides for the child to spend supervised time with the father on up to six occasions each year, and that she will support and encourage the child to enjoy his time with the father.
In my view, having regard to the child’s needs and routines and to the mother’s vulnerabilities and her capacity to cope and to provide for the needs of the two very young children in her care, an order which requires the mother to transport the child to spend time with the father on twelve occasions each year is unrealistic and burdensome, and is unwarranted when the goal of supervised time in this case is to assist the child to identify and come to understand who his father is, rather than to preserve or maintain an existing relationship while the father addresses his issues.
In my view, four occasions of supervised time each year is not sufficiently regular to allow the development of a routine, nor is it quite frequent enough for the child to recall his father and come to feel settled in his company. If supervised time were to occur on six occasions each year, if possible scheduled to coincide roughly with special occasions including the child’s birthday and his brother’s birthday, and with commencement of school holidays, including at Christmas, then the greater regularity and proximity to special occasions may assist the child with routine and recall, while not exceeding the mother’s coping capacity, and provide the child with opportunities to celebrate important milestones with the father and potentially with the paternal half-sibling. Spending supervised time with the father will retain the father’s involvement in the child’s life, and may assist the child to form his identity, and perhaps avoid or alleviate feelings of anxiety or rejection which the child may develop as he matures if the father is entirely absent from his life.
In my view, an order which provides for the child to spend supervised time with the father is a safer arrangement for the child in the long term than eliminating the father from the child’s life.
For the reasons provided, I am satisfied that the arrangement which would promote the safety of the child and the mother and which will provide for the child’s needs, including his developmental needs such as the formation of his identity and his need to know his family and where he comes from, is an order that requires the parents to do all things required for the child to spend time with the father professionally supervised on up to six occasions per year.
Whether the parents will have shared decision making for major long-term issues relating to the child.
Division 2 of Part VII of the Act deals with the concept of parental responsibility for the child, including what it is and who has it.
Section 61D of the Act provides for parenting orders and parental responsibility, and is reproduced in full below:
FAMILY LAW ACT 1975 - SECT 61D
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3) A parenting order that deals with the allocation of responsibility for making decisions about major long - term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision - making in relation to all or specified major long - term issues.
Section 61F of the Act sets out the matters which the court must consider when making a parenting order affecting an Aboriginal or Torres Strait Islander child, and is set out in full below:
FAMILY LAW ACT 1975 - SECT 61F
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child - rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
Note: The expression Aboriginal or Torres Strait Islander culture is defined in subsection 4(1).
The parties provided scant evidence about the child’s Aboriginal culture, and there was no evidence about kinship obligations and child-rearing practices relevant to the child’s culture. I accept the father’s evidence that he did not grow up knowing his culture and that he is still learning about his culture. I am satisfied that both parents are keen to support and encourage the child to enjoy and connect with his culture and to provide opportunities for the child to develop a positive appreciation of his culture. Due to a lack of evidence at the trial I am unable to make findings about any kinship obligations and child-rearing practices relevant to the child’s Aboriginal culture.
The child has complex medical needs, and the mother has been the parent responsible for managing the child’s medical needs since at least the time when the parents separated in December 2021 when the child was a baby. The father demonstrated his complete disregard for the fact that the mother has been solely responsible for the child’s care since separation, with no assistance from the father, and he was unable to give the mother any credit at all for meeting the child’s needs and caring for him, and remained overtly critical of the mother throughout the course of these proceedings.
The mother has arranged and attended specialist medical appointments for the child. While she admits that, at times, she has struggled to meet the child’s needs due to financial constraints, problems with transport, and her own personal struggles, I am satisfied that the mother has provided good enough care for the child, and that she has obtained assistance for the child including to meet his medical and developmental needs. I am comfortably satisfied that the mother loves the child, that she cares deeply for him, and that she will continue to provide for the child’s needs in the future so that he has every opportunity to reach his full potential.
I am comfortably satisfied that the father loves the child, and that he cares about the child, and that the father wants to be involved in making decisions about major long-term issues for the child.
In my view, shared decision-making is not in the child’s best interest in this case for the following reasons:
(a)I am satisfied that the father has perpetrated family violence against the mother and that she remains fearful of the father. To require the mother to consult with the father and share decision making with him is likely to increase her level of anxiety, placing her under added strain, and this may negatively impact her capacity to meet the needs of a particularly vulnerable child with additional needs.
(b)The father demonstrated his distinct lack of respect for the mother as a parent of the child. Such lack of respect makes communication between the parents more difficult, particularly in circumstances where the mother has experienced family violence perpetrated by the father.
(c)The father presents as self-focussed, with over-valued beliefs. He expressed his belief that he is a superior parent than the mother, and he expressed little if any respect for the mother as a parent.
(d)The father’s manner and style of communication is very direct. I agree with the assessment of the family consultant that the father’s communication style can be perceived by other people as aggressive. He demonstrated no awareness or insight into how his communication impacts upon other people. I accept the mother’s evidence that she finds communicating with the father difficult and stressful. An order which requires the mother to consult with the father would likely increase her level of stress and impact on her capacity to meet the child’s needs.
(e)The parents provided conflicting information about the child’s medical and developmental needs there may be delays in providing for the medical and educational needs of the child if the parents share decision making, due to the complex dynamics in their co-parenting relationship, including their divergent and inconsistent perspectives on how the child’s needs are to be met, noting that the child has additional needs due to his diagnoses.
The level of parental conflict is very high, and there a poor co-parenting relationship. The father professes that he wants to communicate with the mother, and she agreed that the parents have had some positive communication by text message more recently, which is encouraging. But in view of the communication and co-parenting issues identified, to effectively improve the co-parenting relationship so that it would not be difficult and stressful for the mother to consult with the father, he would have to acknowledge his past harmful conduct and make amends for the harm he has caused. The father would need to take effective action to assist him to change his behaviour so that, in his intimate partner relationships in the future, he will not choose to use family violence.
In November 2023 the family consultant recommended that the father engage with a men’s behaviour change program, and that he complies with drug testing to evidence his abstinence from illicit drug misuse. The father has done neither of those things which were recommended. There is no evidence that the father has taken responsibility for his past harmful conduct, nor is there evidence that the father has taken any step to assist him to change his behaviour so that he can make appropriate choices in the future.
There appears little prospect that, in the foreseeable future, the parents can safely consult with each other for the purpose of sharing decisions in relation to major long term issues for the child.
An order which requires the mother to consult with the father may not only expose the child to risk of harm from exposure to parental conflict[76], and to possible neglect of his medical needs while the parents argue, but it might expose the mother to the risk that the father will choose to use family violence in the future. Any exposure to family violence will likely increase the mother’s anxiety and negatively impact her functioning, in circumstances where she has the primary responsibility for the care of two vulnerable young children.
[76] Family Report [146]
I consider that it is in the best interests of the child for the court to make a parenting order which allocates to the mother the sole responsibility for decision-making in relation to all major long-term issues for the child. Such an order is consistent with the recommendation of the family consultant, whose evidence I accept and place reliance upon.
The mother is prepared to provide the father with any written medical report with which she is provided that relates to the child, provided that information which might identify her address is redacted. I consider it proper and appropriate to make an order in those terms. The order is not likely to expose the child or the mother to family violence, and I consider that it is in the child’s best interest for both parents to have information about his health and developmental needs. The child will likely benefit if the father is kept up to date about his health so that the father is attuned to the child’s needs during occasions of supervised time. Although the father was forced to resign his job as an educator due to the drug offences, the father does have education, training and experience which may equip him to provide some assistance to the child in relation to his health needs.
Whether injunctions are appropriate for the welfare and personal protection of the child, and the personal protection of the mother and the and if so whether it is appropriate to attach a power or arrest pursuant to s.68C of the Act.
The mother seeks injunctions pursuant to s.68B of the Act, and the injunctions which the mother seeks are supported by the Independent Children’s Lawyer.
Section 68B of the Act provides relevantly:
FAMILY LAW ACT 1975 - SECT 68B
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
In my view, given the father’s history of family violence and his demanding and at times incessant communication style, coupled with the mother’s vulnerabilities, I consider that it is appropriate for the welfare of the child to make the restraints sought by the mother. The father will not be inconvenienced by such restraints in circumstances where he has no reason to contact the mother, except as permitted by the orders the court will make, and where he is permitted to spend time with the child only in accordance with the orders which the court will make. The mother is entitled to feel at ease and an order which provides her with some protection and comfort will likely alleviate her anxiety and enhance her parenting capacity.
PROPOSED POWERS OF ARREST
There were no submissions made on behalf of the mother or on behalf of the Independent Children’s Lawyer about the why it is in the best interest of the child, or otherwise appropriate for his welfare, for a specific order to be made pursuant to s.68C of the Act. The effect of a power of arrest attaching to an injunction made under the provisions of s. 68B of the Act is that if a police officer believes on reasonable grounds that the father has breached the injunction the father can be taken into custody without the need for any warrant.
As noted previously, a Provisional, and later an Interim and then a Final ADVO was in place against the father for the protection of the mother between late 2021 and early 2023. There is no evidence that the father has acted in beach of any ADVO made for the protection of the mother, or indeed the other three females in need of protection from the father.
At the date of the final hearing the father was serving his sentence under a Conditional Release Order and a Community Corrections Order. There is no evidence that the father has acted in breach of either of those orders, and he gave evidence to the effect that he would end up in prison if he did and appeared to take his obligations pursuant to the sentence seriously.
A power to arrest would be appropriate if such power was required to augment the injunctions that the court will make, however in my view this is not a case where a power of arrest is required. I consider that it most likely that the father will comply with the conditions of the injunctions that the court will make. In the event that he does not then further action would likely be required, including by way of an application to the court or by police.
COSTS
The Independent Children’s Lawyer seeks an order that the father pay a proportion of the costs of the Independent Children’s Lawyer calculated in the sum of $3,707.50.
The father opposes the order for costs sought by the Independent Children's Lawyer. Counsel for the father submitted that an order which requires the father to pay costs will create hardship, in circumstances where the father earns $1,100 each week and has fixed weekly expenses, not including discretionary living expenses, amounting to $600 per week comprised of rent, car and utilities.
I have regard to the provisions of section 117 of the Act, including subsections 3 and 4 reproduced below:
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Having regard to the fact that the father has a partner and a young child which he must make financial provision for, and where he earns a modest income, pays rent and must otherwise pay for transport, food, clothing, and other day to day living expenses for his family of three, I consider that an order which requires the father to pay a proportion of the costs of the Independent Children’s Lawyer would cause the father to suffer hardship.
I decline to make the order sought by the Independent Children’s Lawyer that the father pay costs.
CONCLUSION
For the reasons provided, the orders at the forefront of these Reasons are orders which are proper and in the best interests of the child.
I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate
Dated: 31 January 2025
(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.
(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.
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