Tomkins & Milliken (No 2) - [2025] FedCFamC2F 280

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tomkins & Milliken (No 2) [2025] FedCFamC2F 280

File number(s): MLC 2392 of 2023

Judgment of: JUDGE HARLAND

Date of judgment: 7 March 2025

Catchwords: FAMILY LAW - Parenting only – family violence – coercive control – issues of risk in relation to the mother’s alleged prescription and illicit drug misuse – father’s application for change of residence –family report ordered part way through the final hearing – whether the mother poses an unacceptable risk to the children –– mother’s positive hair follicle tests for cocaine and methamphetamine – parenting capacity – father’s ability to promote the children’s relationship with the mother – whether or not there should be a change of residence – impact on the children of the orders sought by the father and the independent children’s lawyer – consideration of conditional orders.

Legislation:
Family Law Act 1975 (Cth) ss.4AB, 60B, 60CA, 60CC(2), 60CC(3), 65D, 65DA, 60G

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)

Cases cited:
Carter & Wilson (2023) FedCFamC1A 9; (2023) FLC 94-129

Isles & Nelissen [2022] FedCFamC1A 97

Lainhart & Ellinson [2023] FedCFamC1A 200

Miyajima & Mikkelsen [2024] FedCFamC1A 208

Oberlin & Infeld [2021] FamCAFC 66

Oswald & Karrington (2016) FLC 93-726

Pickford & Pickford [2024] FedCFamC1A 249

Division: Division 2 Family Law

Number of paragraphs: 224

Date of last submission/s: 18 December 2024

Date of hearing: 6, 7, 8, 9, 10 May 2024,14 June 2024 and 10 October 2024

Place: Melbourne

Counsel for the Applicant Ms Isaacson

Solicitors for the Applicant Barbayannis Lawyers

Counsel for the Respondent Mr Strong

Solicitors for the Respondent Tfa Legal

Counsel for the Independent Children’s Lawyer Dr Alexander

Solicitors for the Independent Children’s Lawyer Victoria Legal Aid

ORDERS

MLC 2392 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TOMKINS

Applicant

AND:
MS MILLIKEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

7 MARCH 2025

THE COURT ORDERS, BY CONSENT, THAT:
1.All previous parenting orders are discharged.
2.The parties have joint decision-making responsibility in relation to all major decisions for the two children X born in 2019 and Y born in 2021.

THE COURT FURTHER ORDERS THAT:
3.The children live with the mother.
4.The children spend time and communicate with the father as follows:
(a)In week 1
(i)From the conclusion of childcare/kindergarten/school or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(ii)From 5:00pm on Friday until the commencement of childcare/kindergarten/school on Monday or 9:00am if a non-childcare/kindergarten/school day;

(b)In week 2, from the conclusion of childcare/kindergarten or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(c)By facetime each Tuesday and Thursday between 5:00pm and 5:30pm and other times as agreed between the parties in writing.

5.When the children are in the father’s care, the mother communicate with the children by facetime Friday and Sunday between 5:00pm and 5:30pm and other times as agreed between the parties in writing.
6.The parties are to facilitate facetime and/or telephone calls between the children and the other parent the children are currently not spending time with at all reasonable times at the request of the children.
7.For the purposes of the school holiday periods orders 4 and 5 are suspended and the children spend time with the parties as follows:
(a)For the Term holiday periods in even numbered years with the mother for the first week and with the father for the second week and in odd numbered years with the father for the first week and with the mother for the second week;
(b)For the long summer holiday periods on a week about basis;
(i)With the mother for the first week and each alternate week thereafter in those holiday periods commencing in even numbered years and with the father for the second week and each alternate week thereafter; and
(ii)With the father for the first week and each alternate week thereafter in those holiday periods commencing in odd numbered years and with the mother for the second week and each alternate week thereafter.

(c)The non-resident parent communicate with the children via facetime/video call each Tuesday and Thursday when the children are not in that parent’s respective care between 5.00pm and 5.30pm.

8.For the purposes of the school holiday periods:
(a)The school holiday period is to commence after childcare/kindergarten/school (or 3:30pm if a non-childcare/kindergarten/school day) on the last day of the term;
(b)The first half of the term holiday period is deemed to conclude at 5:00pm on the day which is halfway through the relevant school holiday period, and in the event that there are an odd number of days in the school holiday period the Mother is to have the additional day in even numbered years and the Father is to have the additional day in odd numbered years;
(c)Each week of the long summer holiday period is deemed to conclude at 5:00pm, seven (7) nights after the commencement of the relevant week;
(d)The school holiday period is deemed to conclude before childcare/kindergarten/school (or 9:00am if a non-childcare/ kindergarten/school day) on the first Victorian gazetted day of the new term after the holiday period.

9.For the purposes of Orders 4, 5 and 7, the usual spend time arrangements are suspended and the children spend time with the parents as follows:
(a)On Mother’s Day from 5:00 p.m. on the evening before Mother’s Day until 5:00pm on Mother’s Day with the mother;
(b)On Father’s Day from 5:00pm on the evening before Father’s Day until 5:00pm on Father’s Day with the father;
(c)On each of the children’s birthdays, in the event that such a day falls on a day when the children are not spending time with both parents, then with the other parent as follows:
(i)If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 6:30pm;
(ii)If on a non- school/kindergarten/childcare day, from 9:00am until 2:00pm.

(d)On the mother’s birthday, in the event that such a day falls on a day when the children are not spending time with the mother, then with the mother:
(i)If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 7:30pm;
(ii)If on a non- school/kindergarten/childcare day, from 9:00 am until 5:00pm;

(e)On the Father’s birthday, in the event that such a day falls on a day when the children are not spending time with the father, then with the father:
(i)If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 7:30pm;
(ii)If on a non- school/kindergarten/childcare day, from 9:00 am until 5:00pm

(f)For Christmas as follows:
(i)In 2025 and each odd numbered year thereafter, with the mother from 5:00pm on Christmas Eve until 5:00pm on Christmas Day and with the father from 5:00pm on Christmas Day until 5:00pm on Boxing Day; and
(ii)In 2024 and each even numbered thereafter with the father from 5:00pm on Christmas Eve until 5:00 p.m. on Christmas Day and with the mother from 5:00 p.m. on Christmas Day until 5:00p.m. on Boxing Day.

10.Where changeovers do not occur at childcare/kindergarten or school and unless otherwise agreed in writing between the parties, the parties shall facilitate changeover at McDonalds, Suburb H.
11.The mother has leave to provide any treating alcohol and drug counsellor with:
(a)A copy of Dr B’s Reports dated 3 April 2024 and 7 November 2024;
(b)A copy of the four completed hair follicle test results dated August 2023, October 2023, May 2024 and October 2024;
(c)A copy of these Orders; and
(d)A copy of these reasons.

12.Both parties have leave to provide the family report by Ms D dated 26 August 2024, Dr C’s report dated 24 August 2023 and these reasons to any therapist they engage with.

THE COURT DIRECTS THAT:
13.The Independent Children’s Lawyer is discharged 30 days from the date of these Orders.

THE COURT FURTHER ORDERS THAT:
14.The mother be restrained from:
(a)using any illicit substances when the children are in her care;
(b)allowing any other person to use illicit drugs in the presence of the children or in the mother’s presence whilst the children are in her care; and
(c)bringing the children into contact with ‘Mr E’ or any other members of an outlaw motorcycle gang including but not limited to F Club.

15.That each party be restrained by themselves, their agents and servants from:
(a)criticising, belittling or otherwise denigrating the other parent in the presence and/or within hearing of the children or either of them; and
(b)discussing any allegations made or material filed in these proceedings in the presence or withing hearing of the children or either of them and from showing any such material to the children.

16.All extant applications are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

Giving evidence on day seven of the trial, the Court Child Expert, Ms D, described this case as perplexing and complex. This description is apt. This dispute centres around the best interests of X, born in 2019 aged five and Y, born in 2021 aged three. The father’s case is that the children are at an unacceptable risk in the mother’s care due to her prescription and illicit substance misuse and there should be a change of residence and limited time between the children and the mother until this is properly addressed. The mother denies misusing illicit substances and says she has always been the children’s primary carer. The mother’s case is that she has been subjected to coercive controlling violence by the father which has continued post-separation. The Independent Children’s Lawyer’s preliminary position was that this was a matter where the parties’ evidence needed to be tested before being able to form a firm view. Her preliminary view supported the interim orders for a 9/5 arrangement in the mother’s favour be made as a final order. On day seven of the final hearing, counsel for the ICL submitted the ICL supported the father’s application for a change of residence but not the spend time arrangements. The dynamics in this family are complex.
The father is aged 52 and the mother is aged 39. The father has four adult children and a 10 year old child from his previous marriage. The parties commenced a relationship in early 2018 and separated in early 2023 following the mother’s application for a family violence intervention order (“FVIO”) made in early 2023 alleging incidences of family violence perpetrated by the father. On 20 December 2023, a Senior Judicial Registrar heard the father’s application for an interim change of residence and delivered written reasons on 22 January 2024 and made orders increasing the father’s time to five nights a fortnight. Those interim time arrangements remain in place.
It was apparent after Ms D first gave evidence on day six of the final hearing that it was necessary to obtain a full family report in order to properly determine the orders to be made. Fortunately, Ms D was able to do this relatively quickly. The family report was released on 28 August 2024. The parties did not seek to file a further affidavit of evidence nor to recall any witnesses apart from, Ms D, for further cross-examination on day seven of the hearing. Ms D described the task as weighing up and balancing the risks against one another. In the family report, the risks she identified are the mother’s drug use, change of residence and parenting dynamics, and the impact of family violence on that dynamic.
It is necessary to address the various competing risks. The parties filed detailed written submissions. The positive hair follicle tests (“HFTs”) are extremely concerning but there is a lack of evidence pointing to the mother’s parenting capacity being compromised and the children being neglected. Placing the children in the father’s care and drastically reducing the mother’s time also carries risks to the children’s development and emotional wellbeing. Another real concern is the father’s willingness and capacity to facilitate the mother’s relationship with the children. Distilling the arguments for changing the living arrangements into a single sentence is that the ICL and father submit that we cannot afford to wait for something bad to happen to the children due to the mother’s drug use. This requires the evidence to be carefully analysed.
After carrying out this analysis, I have concluded that the father’s proposal placing the children in his primary care and the mother having limited daytime periods with the children until she meets conditions providing clear HFTs is not in the children’s best interests. The ICL’s proposal to reverse the current living arrangements so that the children would be in the father’s care nine nights a fortnight and the mother’s care for five is also not in the children’s best interests.
I have given careful consideration as to whether the arrangements should be altered such that an equal shared care arrangement should be implemented, or the current arrangements should remain in place. It is a vexing issue, as there are risks associated with all of the proposals. Assessing unacceptable risk involves making predictions informed by the past. It is not as simple as concluding there is an unacceptable risk because of the positive HFTs. This is because it is not disputed the children are thriving.
I have taken into account all of the evidence and the written submissions. I do not address every issue and submissions as it is impracticable. This does not mean I have not considered it. I am not satisfied that the escalation of drug use is as clearcut and simple as the father and the ICL submit. The children have experienced family violence. Dr C’s assessment and Ms D’s reports support concerns about the father’s willingness and ability to be able to support and facilitate the mother’s relationship with the children. This is a real risk issue that has to be balanced against the other risks.
This case is challenging because of the parents’ dynamics, the father’s coercive controlling behaviour, the evidence about the mother’s drug use and the mother’s continuing denial of this in the face of expert evidence. A further challenge is the evidence about the children’s development and presentation which is inconsistent with the mother regularly using illicit substances would usually impair her parenting capacity. It is necessary to assess the competing risks holistically in the context of this case. Illicit drug use is harmful, but it is still necessary to analyse the evidence critically in this particular case and asses the risk. It is not enough to assume there is an unacceptable risk because there are positive drug tests. After considering all of the evidence, I have concluded that the children are not at an unacceptable risk of harm in the mother’s care.
THE PARTIES’ RESPECTIVE POSITIONS
The father believes that he is better suited to be the primary parent. At the commencement of the final hearing in May 2024, the father sought orders that the children live with him and spend professionally supervised time with the mother twice a week with the mother to complete three hair follicle tests (“HFTs”) at three-month intervals. If they return negative for any illicit substances, this time is to progress gradually to a week about arrangement. During the course of the final hearing, it was raised with the father that due to the mother’s history with HFTs, the orders he sought could see the children seeing their mother supervised indefinitely. In his closing submissions, the father continues to seek a change of residence and that the children spend daytime only with the mother twice a week. If the mother completes and returns three negative HFTs at three-month intervals, time is to progressively increase with the children spending time with the mother Monday to Wednesday in week one and alternate weekends from Friday to Monday.
In his written submissions the father gives the impression that ideally the mother’s time would be supervised but because of the “complexities” of the case he no longer presses for it. The reality is that the evidence does not support an order for supervised time. The father concedes there has been no obvious catastrophic events with respect to the children and the mother’s illicit substance abuse but that there have been incidences which expose the children to risk and they are young and cannot self-protect. He submits that it is not safe for the children to remain in the mother’s care because of the positive test results and the mother’s deception with respect to HFTs and her non-compliance with court orders. These concerns are also raised by the ICL. It is understandable and reasonable why these are concerning for the ICL and the father.
The mother submits that the current arrangements are working well and that the current arrangements were put in place to ameliorate the risks, and they have done that. In her written submissions, the mother submits that the children are thriving and there is no unacceptable risk to the children in her care. refers to the interim defended hearing before the Senior Judicial Registrar. At that stage, based on the collateral information and her own observations, Ms D did not think the children were at an immediate risk of harm in the mother’s care but supported an increase in the father’s time. The Senior Judicial Registrar increased the father’s time from three nights a fortnight to five. This arrangement has been in place for over a year and the arrangement has been working well.
The mother adopted several parts of the ICL’s written submissions. She refers to the family violence she experienced and the father’s negative attitude towards her. She says if the children live primarily with the father, he will not support the relationship between herself and the children. The mother believes the children will not cope with a change in residence. The mother denies using illicit substances apart from one instance of cocaine use. She continues to maintain this position despite the HFT results and the expert evidence of Dr B, consulting pharmacologist and forensic toxicologist. The mother has also admitted to misleading the court and falsifying documents. She describes this as self-sabotaging behaviour in the context her experiences of family violence and trauma.

When the mother was cross-examined about her illicit substance use, she minimised the significance of the positive HFTs and referred to the real issue of concern being the family violence she experienced. She deflected in this way several times. Both are important to my assessment of risks and determining parenting arrangements in X and Y’s best interests.
I accept that the father has genuine concerns about the children based on the mother’s positive HFT results, but this sits beside him continuing to engage in coercive controlling behaviours. I accept that the mother has been significantly affected by these behaviours. The stress of the proceedings adds another layer too as does her self-sabotaging and avoidant behaviours. It is apparent to me too that in this context and when faced with an application to severely restrict her time with the children, the mother may feel she cannot make admissions about her illicit drug use.
It is clear from the ICL’s written submissions that after the results of the third HFT her position changed. The ICL’s closing submissions agreed with the father that there be a change of residence but not with the same restriction on time and seeks a reversal of the current arrangements. The ICL’s proposal for a change of residence however is conditional upon the father moving to Suburb H. The ICL proposes that the father be required to live within 10 kilometres of the mother and if the father does not move, the current arrangements remain in place. The father opposes such a restriction, referring to the complete lack of evidence about the living location and distance. I agree with the father’s submissions that there is not a proper basis for making such an order. Whilst the father was cross-examined about his moves further away from the mother’s home, making a residence order in the father’s favour be conditional upon the father moving within 10 kilometres of the mother’s home was not raised at the trial. It also does not sit well with the submission that the children are at an unacceptable risk if they remain in the mother’s primary care but only if the father moves closer. It does indicate that the ICL holds some concerns about the change in residence. I am not confident that the father will move closer if he does not succeed in his application. The children would benefit from their parents living in closer proximity regardless of whether the children live primarily with him or not.
EVIDENCE RELIED UPON
Rule 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) states as follows:
Requirements for affidavits
(3) A document that is to be used in conjunction with an affidavit:
(a) must be identified in the affidavit; and
(b) must be filed as an annexure or an exhibit to the affidavit; and
(c) must be paginated; and
(d) must bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure or exhibit referred to in the affidavit; and
(e) must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the court.
This is to address the all too common practice of annexing voluminous documents to affidavits that are never referred to hoping the Judge will find a needle in a haystack. The same applies to tender bundles which can also be voluminous. Often during the course of the trial some issues fall away whereas others remain live. It is also common for practitioners to produce tender bundles that number several hundred pages but for only a much small number of pages to be raised in cross-examination and actually tendered.
The father relies on the following documents:
(a)Further Amended Initiating Application filed 19 January 2024;
(b)Trial Affidavit of Mr Tomkins filed 9 April 2024;
(c)Affidavit of Dr B, Toxicologist, filed 9 April 2024;
(d)Affidavit of Dr G, Consulting Clinical Psychologist, filed 15 April 2024;
(e)Affidavit of Ms J, the father’s former wife, filed 19 April 2024;
(f)Outline of Case filed 30 April 2024;
(g)Notice to Admit filed 5 April 2024; and
(h)Closing Written Submissions filed 16 December 2024; and
(i)Annexures and Exhibits identified in his written submissions.
The mother relies on the following documents:
(a)Amended Response to Initiating Application filed 26 April 2024;
(b)Trial Affidavit of Ms Milliken filed 29 April 2024;
(c)Affidavit of Mr K, the mother’s housemate and former partner, filed 20 December 2023;
(d)Outline of Case filed 30 April 2024;
(e)Closing Written Submissions filed 16 December 2024; and
(f)Final Minute of Orders sought provided 18 December 2024.
The ICL relies on their Outline of Case filed 30 April 2024 and their Closing Written Submissions filed 2 December 2024.
The parties jointly rely on the following documents:
(a)Child Impact Report of Ms D of 18 August 2023;
(b)Child Impact Report of Ms D of 19 December 2023;
(c)Family Report of Ms D of 26 August 2024;
(d)Affidavit of Dr C, Psychologist, filed 24 June 2023;
(e)Victoria Police documents;
(f)Department of Families, Fairness and Housing (“DFFH”) responses; and
(g)Various subpoenas and previous Court Documents that were tendered and marked as Exhibits.
ISSUES IN DISPUTE
The issues in dispute which I must determine are as follows:
(a)The respective family violence allegations between the parties;
(b)The allegations of risk of the children in the mother’s care including her drug use;
(c)Whether there ought to be a change of residence for the children to live with the father;
(d)The parenting capacity of the parties; and
(e)The spend time arrangements between the children and the parties.
THE PARTIES’ COMMUNICATION
In her opening statement the father's counsel submitted that the father believes that the mother is a good mother. In cross-examination he said that apart from the complaints in his trial affidavit he thinks she is a good mother “to an extent”. He says the children are always immaculately presented and they are doing well at kinder. He says the mother genuinely loves the children and cares for them a lot. There are no concerns raised with respect to the food she gives them and her physical care of the children.
The father accepted that during the relationship and afterwards the mother has made the majority of the arrangements for the children's medical care and keeps him informed.
The father was in a relationship with his first wife for 25 years. They started dating in high school and have five children, four are adults and their youngest, L is 10. There are no formal parenting arrangements in place, but he sees L typically four times a fortnight, although rarely overnight. The father claimed that he did not encourage L to stay overnight whilst in a relationship with the mother because of the volatility of her moods. He acknowledged that L has not stayed overnight with him regularly since he separated from the mother. It is notable that despite this the father blamed the mother. The mother says that the father's adult children were not interested in pursuing a relationship with the father or their half siblings and that one of his children has never met X or Y.
The father agreed that the mother facilitates additional video calls between himself and the children in addition to the scheduled twice weekly calls. She contacts him when the children are engaged in an activity that she thinks he would be interested in seeing. For example, when Y is at sports training or when X is at her dance classes. He also agreed that the mother facilitates calls whenever the children express a wish to talk to him. He has no concerns that the mother will cease doing this. The mother regularly invites him to attend the children’s activities such as sports lessons. This is to the mother’s credit. It demonstrates her ability to put the children’s needs before her own.
During cross-examination by counsel for the ICL, Dr C agreed that just because the mother continued to engage with the father and at times sent him funny memes does not mean that she is not scared of him. Ms D notes that a victim’s self-assessment of risk is individual and often based on their past experiences, and can rapidly change regarding their environment, safety planning and with regard to the perpetrator’s presentation and any escalation in conflict. The mother likely has periods of feeling safe to communicate with the father, and even so far as to revert to playful communication with him, as presented during these proceedings. Most victims essentially seek for the perpetrators problematic behaviour to cease, not necessarily to cease all communication. It is also important to acknowledge that there is no “perfect victim” or particular way a person should react after expressing violence and/or coercive control.
I also reject the suggestion that the fact that the mother reaches out to the father this way and also sends him memes and videos from time to time that she thinks he will enjoy means she is not afraid of the father. One does not follow from the other. Particularly given the coercive control the mother has been subjected to. Given the mother acknowledges that the children love their father, and it is important to maintain that relationship it is entirely consistent for her to send him these things to appease him and also to keep him involved with the children. I have no doubt that she would like to receive videos and pictures of the children from time to time. I accept that the mother is afraid of the father but despite this has engaged with the father about the children and has demonstrated her understanding of the importance of his relationship with the children. This is another example of the mother putting the children’s needs before her own.
The mother told Dr C that when the children are in the father’s care, the father was at times hostile to her and that he would not let her speak to the children which increased her anxiety particularly when the children were unwell. The mother did not raise any concerns about the father’s parenting capacity to Dr C.
During cross-examination, counsel for the mother referred to a weekend in June 2023 when the father had the children and Y had an illness. The mother alleges in her trial affidavit that the father refused to allow her to speak with the children to see if they were okay. The father said he could not remember if he allowed the mother to speak to the children. I prefer the mother’s evidence about this incident. It was reasonable for the mother to want to check on how Y was doing. The father is well aware that the mother gets anxious about the children but is insensitive to this.
The mother also alleges that the father would not allow any calls between herself and the children for their eight day stay with the father which took place in the December 2023 Christmas period. This was the longest period since the children had been born that they had spent away from their mother. The father denied to Ms D that he did not provide regular communication between the mother and the children and said that during the recent Christmas period he sent her pictures of the children playing and facilitated facetime calls. He denies the mother’s version of events that he would not let X call her and annexes a copy of call logs made between 26 and 28 December 2023. Paragraphs 7 to 12 of the father’s affidavit filed 10 January 2024 and annexure MRT-1 were tendered and marked as pages 114 to 118 of exhibit 5. The call logs show five calls to the mother and 16 missed calls by the mother. Exhibit 3, tendered by the mother’s counsel, shows emails and text messages between the parties during this period. The mother sent multiple text messages to the father requesting to be able to facetime or call the children. The father does not reply.
The father was cross-examined about this period. The father responded that on one day the mother called about ten times, and his actions had to be considered in this context. The call logs show frequent calls placed daily. There are several missed calls but also calls most days that were answered. The number of calls the mother made on the same day is likely to be the product of her anxiety. I am not satisfied that the father failed to facilitate the mother’s communication with the children during this period.
The father was cross-examined about text messages annexed to the mother’s trial affidavit for the weekend of 19 to 21 April 2024. The mother asks to facetime the children but alleges she does not receive a response. The father said he did not remember this incident, but said they may have been busy and that it was his scheduled time with the children. The father admitted to not always having his phone on him and it can be hard to ring her back if he misses a call and is mindful of the FVIO. The father said that both parents have at times showed ineffective communication and at times he could be overly directive but that the mother has disrespected him and been unclear for example by sending him a photo of Y’s vomit without any context. It is hard to fathom what the mother thought that would achieve.
The ineffective communication and conflict between the parties is in part due to their different personalities. It is important to acknowledge that high conflict is different to family violence. Ms D describes the father in the child impact reports as focused on what is practical. In contrast, the mother is more emotional. The father sees the mother’s emotionality as being erratic and he associates it with the mother’s drug use. By the time the parties attended Ms D for the family report in July 2024, the parties’ communication had somewhat improved. They had gained some insight into the fact that their different communication styles could be misinterpreted by the other parent. The father tends to experience the mother as erratic and unpredictable and sees her emotionality as indicating drug use. I do not think that is an accurate description of what happens. The mother is more emotionally attuned to the children and sensitive. This also ignores the mother’s experiences of trauma of her mother dying in front of her and the father’s coercive control which include undermining and monitoring her. I will refer to this in detail later in these reasons. It also ignores the mother’s attention deficit hyperactivity disorder (“ADHD”) diagnosis. The mother was only diagnosed with ADHD in late 2022. This is only a few months before the parties separated. This new diagnosis may have contributed to the father thinking she was acting erratically and having mood swings.
THE PARTIES’ MENTAL HEALTH
The father
Dr C was engaged by the parties to carry out a psychological, risk and violence assessment of the parties. Dr C was to consider the parties’ current mental health issues and any impact that may have on their parenting capacity and any other risk factors.
The father has been experiencing anxiety, particularly post separation. He denied being exposed to family violence as a child to Dr C. The psychological tests Dr C administered showed the father as falling into a category of people who are generally restrained and well socialised but when they have problems, they tend to be rigid and lack insight into how to deal with it. They can appear sanctimonious about other people’s problems. He also scored as engaging in positive impression management, but that is not unusual in family law litigants. Dr C assessed the father as having a tendency to externalise and minimise his responsibility for problems in the relationship or with parenting issues. Dr C also said the father’s scores suggested that he might have difficulty adapting to change or feeling out of control. The measurement for parenting strengths and weaknesses with the likelihood of the children being exposed to, neglect or abuse in the father’s care was low. There were elevations in risk with respect to his capacity to support the children’s relationship with their mother and to not expose them to conflict. She also observed that the father’s lack of self-awareness of his contributions to the relationship issues “complicates the assessment of the balance between animosity and veracity”. Dr C’s descriptions of the father is consistent with the mother’s experiences of him. Dr C recommended individual therapy with a psychologist with a good understanding of family law issues to help manage his anxieties around loss of control, particularly with respect to relationships and parenting and suggested Dr G as a counsellor for the father.
During cross-examination of Dr C, the father’s counsel referred to Dr C’s comment in her assessment of the father that his lack of insight into the relationship issues and asked whether this view would change if it is found that there was weight to the father’s risk concerns about the children in the care of the mother. Dr C replied that it certainly lends more weight to the father’s concerns at the time about the children being in the mother’s care. With respect to the father engaging in positive impression management which included painting a more positive description of his relationships with his adult children, Dr C said when cross-examined it was hard to establish what was true and what was based on his hostility towards the mother. It is significant that when giving his family history to Dr C he denied any exposure to family violence, substance abuse or neglect in his childhood which is in sharp contrast to what he later told Dr G. Dr G was cross-examined before Dr C.
The mother
The mother has mental health vulnerabilities. She has experienced trauma. In speaking with Dr C, she denied exposure to family violence, substance misuse, physical abuse or neglect as a child. Her mother died of a medical condition in front of her when she was 23. She believes her father blamed her for not performing cardiopulmonary resuscitation successfully on her mother. After her mother’s passing, her relationship with him was limited and she also felt unsupported by her sisters and does not have contact with them. Her father died 10 years after her mother. She acknowledges these experiences were traumatic for her.
Dr C observed that the mother spoke rapidly but did not have any other signs of acute mental disorder. The mother acknowledged a history of mental health difficulties but had limited awareness of how that would impact on her relationships and parenting. She did not engage in positive impression management. Dr C found that there was insufficient information to support a diagnosis of post-traumatic stress disorder (“PTSD”) during the interview, but it was likely that her mother's death invited a trauma response in her. She also recommended that the mother see a psychologist. It is not unusual for an expert not to be in a position to make a formal diagnosis given the time restraints and focus of these assessments.
The ICL’s counsel put to Dr C that the ICL’s concern is the effect of family violence and control on the mother. Dr C confirmed experiencing family violence affects people psychologically in different ways. It could contribute to the mother presenting more anxiously. Additionally, she has been diagnosed with ADHD which could contribute to her being more impulsive and could explain her rapid speech and disorganised thoughts at times.
The mother has received assistance from caseworkers through domestic violence services who have given her practical supports and helped her manage the court costs. She has also started seeing a counsellor to support her managing her anxiety. Apart from the drug and alcohol counselling the mother has also regularly attended upon her general practitioner (“GP”) and engaged with a psychologist.

Dr C found that it was likely the children would not be exposed to neglect or abuse in the mother’s care but that she rated as low to moderate in the elevations of risk related to capacity to manage her mental and physical health. She said that the risk would increase if the mother was found to be abusing prescription medication. The fact that the mother engaged in supports was a protective factor. Leaving Y alone was a lapse in judgment but there was no other information suggesting the mother could not care for the children. I will address this incident further.
After being informed about the inconsistencies and falsehoods in the mother’s evidence about the HFTs during cross-examination, Dr C said that the mother’s evidence about her drug use is unreliable and pointed out that as she stated in her report, that increases the risk to the children in the assessment of the mother from low to moderate to moderate to high. To make it higher would depend on what she is using, how much and how often. Using illicit substances tends to negatively affects an individual’s parenting capacity. The effects of illicit drug use are variable on an individual. Dr C said the mother’s unreliability in her self-reporting could indicate a lack of insight on her part. It could also be because of being concerned that it would be used against her and could lead to her losing the children.
FAMILY VIOLENCE AND RISK CONCERNS OF THE PARTIES
The risk issues in this case with respect to the father focus on his use of family violence and coercive control and his willingness and ability to facilitate the children’s relationship with their mother given his negative views of her. In respect of the mother, the focus is her use of prescription drugs and illicit substances.
Dr C in her report also said that if the father gains full-time care of the children, it is possible that the father will undermine the mother to the children. Given the concerns about the mother’s drug use, the father’s positive impression management could be balanced by his frustration about his concerns not being addressed.
The father’s concerns about the mother
When Dr C asked the father about his concerns about the mother’s parenting the first thing he mentioned was her use of prescription medications and raised some mental health concerns.
The mother leaving Y home alone –21 December 2022
The father told Dr C he was concerned about the mother’s parenting capacity after returning home early one day and finding Y asleep in his cot alone. The father claims that the mother did not come home for another 55 minutes. He claims that the mother told him she was at the pharmacy and asked a neighbour to check on Y. He refers to a “neighbour” telling him they received a text message from the mother asking if they could lie for her that the neighbour had looked after Y. He does not name the neighbour. He simply says a neighbour told him that the mother sent the neighbour a text asking her to lie. He does not say in what circumstances the neighbour told him this. This raises concerns that the father has spoken to various neighbours, undermining the mother and encouraging them to report things to him that the mother does.
In his trial affidavit, the father refers to the mother’s N Bank account statement for the 21 December 2022 showing entries for beauty treatments. He does not provide any supporting evidence. The father refers to not being provided a script from the mother despite requesting a copy and that the subpoena to Services Australia does not show a script being issued that day. The mother in her trial affidavit admits to leaving Y home alone whilst she went to obtain a script for her ADHD and submits this was a “terrible error” and is deeply regretful. The mother’s case is that she was only gone for 20 minutes and that she had the baby video monitor running on her phone so she could watch Y. She denies she went to get beauty treatments and says she had them done later that day after the father returned home. The Services Australia records tender and marked as exhibit 4, show both dates when a prescription is issued by a GP and the date the medication is dispensed at a pharmacy. There is no record referring to a script either being issued or dispensed on that day. Exhibit 5 is an email allegedly from a pharmacy stating that they dispensed medication to the mother on 21 December 2022. The mother was asked but was not able to produce an email from her to the pharmacy and then said that she must have called them. The mother previously in her material admitted to falsifying an email from the drug testing agency. Given this and the fact that it is inconsistent with the Services Australia records, I do not accept the mother’s evidence about obtaining a script that day.
Whether she was gone for 20 minutes or an hour, any length of time is too long. Leaving Y home alone was a serious lapse in judgment by the mother. The father would have been justifiably concerned. When cross-examined about this incident, the father said he did not call the police because he loved the mother and did not want to throw her under the bus but that he now regrets not contacting the police. He could not explain why he did not call the mother to find out where she was and just said he waited for her to come home. Despite his concerns, the father admitted that Y would have been left alone with the mother after this incident. When asked if he trusted her during that period to look after Y he said yes but that the incident was still concerning. It is curious that the father did not attempt to contact the mother but rather waited until the mother got home.
The father and his counsel raised this incident numerous times throughout the trial. Whilst it is a serious lapse in judgment by the mother, it occurred whilst the parties were in a relationship. There is no evidence that the father took any steps not to leave the children alone with the mother and there is no evidence to suggest the mother ever did this again. Given the fact that the father was content for the mother to continue being primarily responsible for the children’s care, it is consistent with him being of the view that the mother was capable of looking after the children. I am troubled by the fact that the father did not make an attempt to contact the mother. This needs to be seen in the context of his coercive controlling behaviour towards the mother.
Trips to New South Wales – January 2023
The mother returned home after two days away on 7 January 2023. The father says she told him that she was going to Town O where they have a holiday home. He claims that when he next used the car, he found a confirmation booking for car parking at M Street, Melbourne from 5 to 7 January 2023. The mother in her trial affidavit admits that she did not go to Town O for that period but needed to remove herself from the home due to family violence perpetrated by the father. She refers to the father allegedly kicking her in the back the weekend prior whilst she was holding Y. The father was challenged by the mother’s counsel and the ICL’s counsel about the reference to this incident in his trial affidavit. The father said it was “totally fine” for the mother to be away for two nights and that her not answering the facetime calls was not him being “critical of her”. The ICL’s counsel suggested that he included that in his trial affidavit to show the mother lied. He conceded that that was a fair statement. This is a concerning example of the father being controlling and monitoring the mother.
The father says on 20 January 2023 the mother told him that she would be attending a christening in Town P, New South Wales. He says the mother returned on 22 January 2023. He complains that he tried to contact her via facetime throughout the day on 20 January as the children wanted to speak to her but that she would only speak on audio and would not video call. The father also claims that the mother returned home in the middle of the children’s bedtime routine and says that she insisted on putting Y to bed but that he heard Y crying for half an hour. When he went to check on Y, the father says the mother was in another room talking on the phone. The father says at paragraph 46 of his trial affidavit that:
I checked the car when she returned, and she had only driven 200km. A trip to [Town P] would usually take six hours and more than 200kms. I do not know where she went or who she was with.
This is another example of the father being controlling. It is evident from both these incidents that the father was monitoring the mother. This was shortly after the mother was diagnosed with ADHD and the incident where she left Y home alone. I do not accept that he just happened to notice the number of kilometres the mother had driven on the odometer. Both these trips were during the period when the marriage was deteriorating. The father’s claim when cross-examined that he just happened to notice this and was not monitoring the mother, lacks credibility.
Department of Families Fairness and Housing (“DFFH”) Report –April 2023
The mother was cross-examined about an incident in April 2023. DFFH received a report that concerned verbal and physical abuse of X. It was reported that X had a scratch from the back of her neck to her cheek. X disclosed at childcare that the mother caused the scratch whilst brushing her hair but that it was deliberate. DFFH attended the children’s childcare the following day. They saw the scratch on X and she told them that her mother gave it to her whilst brushing her hair. Due to her age, she could not provide much further information but said she felt safe with her mother and her father.
The father was interviewed and denied ever witnessing the mother verbally abusing or using inappropriate discipline on the children. The father did not use this opportunity to criticise or denigrate the mother which is to his credit. It also likely reflects his genuine views. The mother was also interviewed and said she accidentally scratched X on the cheek when brushing her hair.
When counsel for the father cross-examined the mother about the incident, the mother said she did not intentionally scratch X and if the brush accidentally swiped her, it may have scratched her cheek. She said she was only made aware of the scratch when DFFH attended her home and she told them that was the only thing she could think of that could have caused that scratch. The mother told the court that X always moves around and that her hair is knotty. DFFH also suggested it could have been from her fake nails. The mother was then taken to the DFFH material tendered and marked as part of exhibit 5. The report indicates the mother telling DFFH that X refused to sit still whilst brushing her hair and that is how the mark occurred. The mother stated X was with her that morning and confirmed it could not have been caused by the father. Whilst the mother’s evidence was somewhat inconsistent, in the end DFFH were satisfied and advised the parties they would not take further action. This incident does not raise risk concerns. It does show that the childcare takes their reporting obligations seriously.
The mother and Mr E
The father says there is a risk of family violence in the mother’s care particularly if the mother was still associating with Mr E who the father described as a F Club motorcycle club member. The father told Ms D that one morning at changeover with the children he saw a man outside the mother’s house wearing the F Club motorcycle club clothing getting into a car. The mother said that she did not know him and suggested that he was attending a different house. The father also alleges X has pointed to buildings in the city when driving over a bridge that “[Mr E] lives in the city” and “[Mr E] rides a loud motorbike”. The father also refers to the mother’s N Bank statements, where there appears to be a number of transactions with a person who the father believes is Mr E and is a known member of the F Club motorcycle gang. The father does not annex copies of these statements to his trial affidavit.
The mother said in cross-examination that Mr E was a friend and that he never stayed over at her home. When asked if he was someone affiliated with the F Club motorcycle gang the mother said she thought he was but she was not aware of this until the father googled his name. She said they had not spoken in a while but he used to send her money to help her out. She confirmed she never left the children alone with him.
Due to the unusual circumstances of the course of this trial I granted leave to the ICL to issue a subpoena to the children’s day care centres during the trial. The handwritten notes dated 16 October 2024, from X’s daycare, tendered and marked as exhibit 10 records X talking about “[Mr E]”. That is suggestive of the mother still having contact with Mr E. In the mother’s orders sought she proposes a restraint on her bringing the children into contact with members of motorcycle gangs. This restraint is appropriate and warranted given that the Q School records are suggestive of Mr E being around more recently than the mother deposed. The subpoena was returnable after the parties had been cross-examined therefore the document was not put to the mother.
Whilst X’s reference to Mr E in the subpoenaed records does raise concern, I am not prepared to go as far as the ICL does in her submissions as the mother has not had the opportunity to address this. In saying this I am not critical of anyone not seeking to recall witnesses given the length of the trial.
The mother and Mr K
Despite Mr K, the mother’s ex-partner appearing to genuinely care for the children and the mother, the father also raised risk concerns about the mother associating with him. Mr K swore an affidavit in support of the mother’ case and was cross-examined. He works in the community support sector. The mother and Mr K initially met several years ago and became friends. They started an intimate relationship in 2023. They moved into a rental property in Suburb H. The family law proceedings placed additional stress on them. In early 2024 the mother moved into a bigger home with the children. Mr K and the mother have broken up but remain friends. Mr K stays there two nights a week and otherwise works in City R. They have separate bedrooms.
Mr K says the mother disclosed to him the family violence she was experiencing in January 2023. He says he has seen the impact on the mother of the father’s coercive controlling behaviours. He says the father tells the mother how she should parent the children when they are with her and that he has requested unnecessary welfare checks. Mr K refers to these issues generally in his affidavit filed in these proceedings. Mr K says he has been at a couple of the handovers and has seen the father film the mother claiming she was under the influence of drugs. In one of those incidences, Mr K says 10 minutes after they returned home from the changeover the police arrived and tested the mother for drugs and alcohol which were negative. It is reasonable for the mother to think the father was behind that visit. He also says he has heard X tell the mother that “dad said he hates you”. Mr K says he has a good relationship with the children and says that he has seen the mother parenting the children attentively.
In her trial affidavit, the mother refers to an incident in late 2023 where X told the father over facetime that Mr K had been at her home earlier that day. Later that evening the police attended the home and told the mother it was a welfare check based on concerns raised by the father. The father in his trial affidavit admits to calling the police to do a welfare check on the mother. He says he heard the mother and Mr K arguing in the background of the facetime call between himself and the children. He says he called the police as he was concerned for the children’s safety. Ms D refers to this incident in her family report and says this could have been the father behaving protectively. It is impossible to know given the lack of evidence. Having the police turn up at the home can be frightening for children.
Mr K was cross-examined about his criminal record which he disclosed to in his affidavit. He was given a diversion in 2015 for property he damaged in the context of a family violence incident against his children’s mother. The police found steroids in his possession in 2020. He had another FVIO taken out against him by another partner. Mr K gave his evidence in a straightforward manner. There is no evidence to suggest Mr K is a risk to the children. The children speak about him positively. I accept the ICL’s submissions with respect to Mr K’s evidence that even though he has a criminal history, his evidence reflected genuine mutual affection for the children, and he observed a positive, loving and caring relationship between the children and the mother. There is also no evidence that Mr K is a member of a motorcycle gang which the father expressed concern about.
Mother’s concerns about the father
In her trial affidavit, the mother alleges the father subjected her to family violence. The mother describes being subjected to physical and emotional abuse in front of the children, particularly X. She alleges the father made threats including threats to kill. The mother said that the relationship deteriorated after they moved back to Melbourne from Sydney in late 2020. She said the father often criticised her weight and she felt unsupported by him and that they slept in separate bedrooms for the last 12 months of their relationship. She says things worsened after her father passed away and that she felt that the father disregarded the difficulties she experienced in coping with this because of their complicated relationship.
The mother says there was one incident of physical violence in early 2022 where she claims the father put his hands around her throat. She called the police, but they did not take any action. The mother said to Dr C that X did not witness the assault but witnessed the police attending the home and was afraid. The mother said that there were other occasions of physical violence where the father would push her and spit at her. The father was cross-examined about this incident. He said he did not try and strangle her. He said they were having an argument and that the mother was yelling and screaming at him and she kicked him and punched him in the head. He then stood up and put his hands on the mother’s shoulders to stop her from punching him. The father also referred to this event in his conversations with Dr C.
The father denied committing any family violence. He denied there being any other incidences of physical aggression but says that the mother would often yell and scream at him and make demeaning comments and that her mood swings increased towards the end of the relationship.
The mother says they discussed separating for some months and that she felt anxious and intimidated by the father. She encouraged the father to leave but he refused to leave without the children, so she felt she had no choice but to apply for a FVIO. Dr C commented that the father claimed that separation was a surprise to him but this conflicts with his description of the relationship dynamic at the time.
The mother told Dr C that towards the end of their relationship the father monitored her movements and withheld financial support. The mother said when they separated, the father continued to withhold financial support and was hostile to her. The father made allegations to Dr C against the mother including with respect to her spending money which is not in evidence before me. Dr C said both parties indicated that this was not an issue until late in the relationship when the father changed the way he gave the mother money. The father restricted money he gave to the mother as he alleges she was not paying bills, and he took over paying for them.

The father told Dr C that there were only difficulties in the relationship towards the end because he largely submitted to the mother. When the mother became upset, she was hard to reason with and he understood that she had anxiety, and he thought this negatively impacted on her conflict resolution skills. This ignores her recent diagnosis of ADHD.
Post-separation family violence and coercive controlling behaviours by the father
Police Raid – Early 2024
The mother is convinced that the father orchestrated the police raid on her property in early 2024. Ten police officers attended the mother’s home in the presence of the children who were home sick. The search warrant is part of exhibit 5. It refers to it issuing due to there being a “reasonable ground for believing that there on or in a certain premisses situated at [S Street, Suburb H] VIC […] Drugs namely Cannabis and drug paraphernalia”. The reference to cannabis is curious as the father has the history with this substance The search warrant referred to an affidavit having been filed by a police officer however this was not included in the subpoenaed material.
When cross-examined about this incident, the mother said the police told her if they found anything the children would be taken off her and they told her to watch who she associated with especially people who ride motorcycles. The mother believes it was a token raid as the officers did not look outside and mostly sat around the lounge room. She believes the father orchestrated this raid due to what the father told the police during an interview in late 2023 to assist in his family law case.
The difficulty is that the father’s record of interview is not in evidence nor is the affidavit the police relied on to obtain the warrant. The mother has engaged a criminal lawyer and has lodged formal complaints with the Independent Broad-based Anti-corruption Commission about the treatment she received from police. The formal complaint is not limited to the raid but also concerns how they dealt with her complaints of family violence and breaches of the FVIO. I do not draw any negative inference against either parent with respect to this incident.
Intervention Order proceedings and breaches
In early 2023 the mother attended the Magistrates Court where an interim FVIO was issued listing the mother and children as protected persons. A full FVIO was issued in early 2023. Both orders had the same conditions which allowed the father to communicate with the mother via email or text message to negotiate child arrangements. The mother reported numerous breaches of the FVIO. They included the father sending an email questioning her about Mr K who he thought was her new partner on 23 February 2023 and on 28 February 2023 the father sending her four text messages blaming the mother for breaking up the family. The father was charged with four breaches of the FVIO and in mid-2023 was granted a diversion. The father was cross-examined about the diversion which did not impose conditions on him. By accepting the diversion, the father admitted responsibility.
The mother reported further alleged breaches of the FVIO by the father being a message from the father to her via social media in late 2023 saying “I will ruin you”. She signed a statement with the police in late 2023. Three days later, the father was arrested and interviewed. The father claimed that the mother set up his social media account and could have sent it herself. The mother was very upset when she was advised about the lack of evidence to support this breach. According to the leap records tendered and marked as part of exhibit 5, the mother was advised of this via the telephone. The mother was upset when informed about the outcome by the police interview with the father about the breach. The entry refers to the mother being worried about losing custody of her children and receiving positive drug tests. This occurred two days before the interim hearing. The leap record does refer to the mother behaving erratically but it does not state that this is due to drug use. There is also no reference to what the “erratic” is. It is understandable that the mother was upset and feeling the stress of the imminent interim hearing in addition to her concern about the police response. The police officer is making this record after speaking with the mother on the phone and Mr K attending the police station.
The father breached the FVIO on numerous occasions however the father appears to not accept responsibility for his actions but instead portrays himself as a victim of the FVIO. The father refers to not wanting to risk breaching the FVIO as justification for why he does not do certain things such as moving closer to Suburb H or call the mother back when she calls his phone. This gives the impression that the father believes there is and was no proper basis for the FVIO. The father needs to understand the seriousness of his actions. I do not accept the father’s concerns about the mother alleging breaches of the FVIO as the mother has been justified. It is for the father to modify his behaviour. Paragraph 95 of his closing submissions is contradictory to paragraph 76.
References to unnamed friends and neighbours
The father’s trial affidavit contains several references to unnamed friends and neighbours who allegedly reported to the father at various times concerning behaviour of the mother. The father refers generally to neighbours reporting to him that when the father was at work they would see the mother walking down the street on the phone and smoking for hours and the children could often be seen crying for the mother through the window. He also refers to X making disclosures to him about physical and verbal behaviours made by the mother that are also consistent with disclosures made by “the neighbours”. Again, the neighbours are not named, and they are not on affidavit. When cross-examined about this the father says he had since given names and said he knew the names but did not refer to them in his affidavit.
The father also refers to a “friend” of the mother’s telling him that she had the mother on a phone call whilst she was in the car and overheard her say to Y “shut up cunt” and that the mother was overheard by neighbours at a New Year’s Day party on 1 January 2023 saying to X “what the fuck do you want”. Again, no names are given to these alleged friends and neighbours.
The father was then asked about his reference to a man staying over at the mother’s home post-separation. In his trial affidavit he does not say how he knows this. In cross-examination he said a neighbour called Mr T told him. The father was defensive when being cross-examined about his complaints in his trial affidavit about the mother not telling him when she has men staying over. He said he thought it would be simple co-parenting to let him know who else is in the house with the children. He wanted to control the mother and who she was with. Given the father’s negative attitude towards the mother, it is unsurprising that the mother would see this as being controlling and continuing to monitor her post-separation and not about concern for the children.
I find these references in his trial affidavit to several unnamed persons giving him information supporting his case troubling. The father has experienced family lawyers representing him. It is indicative of the father’s desire to smear the mother and it concerns me that the father is attempting to paint the mother in a negative light with references to unnamed sources. It is also consistent with the mother’s complaints about the father being controlling and monitoring her. The fact that the mother’s neighbours are being drawn into the dispute would only add to the pressure and stress the mother feels. It comes across as the father seeking to have the neighbours collude and report things to him that he could use against the mother. This would have put the mother under enormous pressure.
When it was put to the father that it was not just vague hearsay in his trial affidavit but that it was prejudicial to the mother and an example of him discrediting and criticising her, the mother was listening to this evidence from a separate room. She looked in utter despair and had her head in her hands crying. The father responded saying he does not deny that he believes the mother has all the right intentions and ticks a lot of boxes, it is her drug use that is terrifying. This is disingenuous of the father given the negative and disparaging comments he makes elsewhere. Looking at the father’s behaviour in context both during their relationship and after the parties separated, it paints a troubling picture of the father engaging in coercive control and undermining the mother.
I am satisfied that the father has subjected the mother to family violence and coercive control during and post the relationship. The father's coercive controlling behaviour during the relationship relates to the father monitoring the mother checking the odometer in her car, looking for documents such as parking tickets to contradict the mother’s explanation to him, calling her first to check what she was doing and who she was with and searching her bag and belongings. This conduct has continued post-separation, including continuing to monitor the mother by who comes and goes from her house, engaging various unnamed persons to report to him about the mother's movements and conduct and the ongoing undermining and interrogation of the mother. Coercive control impacts people in different ways and includes impairing parenting capacity. Engaging in family violence and coercive control is a parenting choice and reflects negatively on that parent’s capacity and is also poor role modelling. The mother is recovering from the trauma of family violence.
Evidence of Ms U
The father’s ex-wife Ms U swore a brief affidavit in support of the father’s case and was cross-examined. When cross-examined she said that the father was never violent and has always provided for his family and supports his children. She was cross-examined about a message she sent to the mother where she referred to the father abandoning his family and leaving them in financial trouble. She was keen to distance herself from the tone of that message saying she was heartbroken and was lashing out at that time.
When asked about the father’s relationship with their children, she said L was not staying overnight at the father’s home but they were working on it. She said that L was nervous around the mother and she was uncertain of the situation with the two young children there as well. Given the length of time the parties have been separated, it is suggestive of there being something more to this reluctance than being nervous around the mother and finding the situation confusing. They separated in 2016. When L was young the father moved to Sydney so that would have been disruptive for L as well. Ms U denied denigrating the mother.
It appears that the father has not been candid about his relationships with his adult children. The father blamed the mother for L not wanting to spend overnights with him which is another example of the father disparaging and undermining the mother this comment is without substance particularly given that the parties have been living separately and apart for two years and it continues to be an issue.
The father’s insight into his parenting proposals
The father conceded when being cross-examined that he travelled for his work including that he went to the USA for 10 days, soon after X was born and travelled to New Zealand for three to four nights every couple of months and goes to Country V once a year. Due to Covid-19 his travel reduced significantly. He claims it has not returned to pre-Covid-19 levels and that the company he works for has gone through some restructuring and as a result, he does not have to travel as much and has greater control over his travelling. The father works an average of 40 to 50 hours a week. The mother is currently unemployed but is enrolled in a health care course which commenced in mid-2024.
When the father was cross-examined about his proposal for the mother to initially have professionally supervised time twice a week pending the production of clean HFTs it was apparent to me that he had not given much thought to how unrealistic and impractical his proposal was. This was with respect to the cost of supervision and what would happen if the mother either did not go for a test at all or if the tests were positive. When asked if he had thought about how his proposal would work, he talked about the parties negotiating and being flexible, which is unrealistic in the context of his proposal. He was also vague about how the arrangements would work with respect to his work commitments. The flavour of his answers were very much that he should be trusted. When I asked how he would arrange time with the mother and the children and to explain exactly what his proposal was, he said that if she passes the HFTs then time between her and the children would be more frequent and referred to having raised his adult children successfully and knowing how to raise children. The other aspect is how the children will manage the change particularly not seeing their mother.
When cross-examined about his proposal; despite the fact that the children would be in his fulltime care, the father said he would not be reducing his work hours but could spread them out and have meetings via teams rather than travelling and he could do some work once the children are in bed at night. My impression of the father when he was giving this evidence was that he had not critically analysed his proposals and reality tested them.
When pressed about what his proposal would be if the mother does not provide three clean HFTs he said it would be that professional supervision continued long term. The father proposed that they would share the costs of professional supervision equally. When the mother’s counsel asked what he proposed if the mother could not afford her share, he replied that she should be able to afford her half. He said he could not remember the cost but remembers it was achievable, whatever that means. Again, my impression from his answers was that he had not thought it through and had not turned his mind to how the children would be impacted. Furthermore, the father claimed strained finances as being a reason for his delay in engaging Dr G which is inconsistent with other evidence he provides.
In cross-examination, the ICL’s counsel referred to the fact that the mother set out the children’s routine in detail in her trial affidavit whereas the father did not. The father responded that he took it for granted that he knew their routine. The other explanation is that he did not refer to it as he is not as familiar with it. The father proposed that the parties share the costs of supervision. When asked what would happen if the mother could not afford it he said that she should be able to as he has taken over kinder costs. Again, my impression is that he had not turned his mind to the practicalities of his proposals. It was also completely unrealistic to refer to the parties negotiating arrangements for supervision times during the week or on the weekends. The ICL’s counsel asked the father if the mother was unable to produce negative HFTs was his proposal that her time be supervised forever. He shrugged his shoulders and said hopefully she would produce negative tests. When pressed he said yes.
I do not have concerns about the father’s ability to care for the children’s physical and practical needs. I have some concerns about his emotional attunement and ability to facilitate and promote the children’s relationship with their mother. One unknown is how he would address the children’s distress and confusion which is likely to occur even if the ICL’s proposal is adopted let alone the father’s. With respect to the father's evidence about his work commitments and his proposal for the children to live primarily with him I agree with the ICL that the father's evidence was vague and I share the concern that the father is untested as a full-time carer.
Dr C did not prepare a family report in this matter (although she does in some matters). During cross-examination, the ICL’s counsel asked Dr C about the father’s proposal for professionally supervised time. The need for supervision depends on whether the mother was under the influence and whether she was behaving erratically or abusively. In this case the children have been well taken care of. Dr C said professional supervision is unnecessary and substantial attendance could be sufficient. A difficulty for the parties is that they have both lost both of their parents. Neither had anyone they could propose who could be in substantial attendance. Ms D did not think supervised tine was required.
Location of the parties
Since the parties separated the father has moved several times. Each time he moves he has moved further away such that at the time of the trial he lived a 43-kilometre distance from the mother’s home. The father explained that because of the FVIO he did not want to run into the mother and decided to move further away. When asked if he had thought it would be easier for the children if he lived close, he said he has never missed an opportunity to spend time with the children because of where he lived. That answer does not address the question at all.
Earlier in his evidence he described the children as emotional however when the ICL’s counsel put to the father how his proposal would see the children move away from their community and friends and local supports he said he has learnt that children are very adaptable and, that it happens all the time and both parents would be there to support them. However, this does not fit with his proposal of the mother only having supervised time potentially long term. This completely ignores the fact that on his case the mother would be spending limited professionally supervised time for months for the foreseeable future or alternatively indefinitely. His answer gives me the impression that he again has not thought through what to do if the HFTs are positive. The father's proposal was vague and essentially saying that he could be trusted to work it out. It raises some concerns as to how emotionally attuned the father is. When asked what he would do if the children asked to see their mother, he replied that hopefully she would pass all the drug tests. The father’s answers to these questions again show that he has not reality tested his proposals.
My impression of the father when he was giving this evidence was that he had not critically analysed his proposals and reality tested them and was overly confident. Another example of the father lacking insight into the impacts of his proposal on the children is when he commented during cross-examination that if the arrangements remained the same, he would be doing the driving. This ignores the fact that the children would also be required to travel those distances.
I accept the ICL’s submissions that the father moving several times further away from the mother and the children was not child focused. It is significant that the father was initially proposing that the children changed daycares and school if orders were made for the children to live with him. This reflects a focus on what suits him and shows a lack of consideration as to the impact on the children of having to cope with multiple changes all at once. Whilst the father has now agreed that the children should remain at their school and kinder which gives them some stability, it is apparent from paragraph 76 of his submissions that the father will consider moving closer to Suburb H if the 30-minute drive becomes “an issue”. Under the father’s proposal that will be required of the children every weekday. X already has a major adjustment this year with her first year of school.

The ICL refers to the father’s flat denials of family violence and minimisation of his conduct and deflections observed by both Dr C and Ms D. I accept the ICL’s submissions about family violence. A parent choosing violence is a poor role model for children and normalises that behaviour. It can lead to long term developmental and emotional issues for children and also has a negative impact on the mother’s parenting capacity and increases her stress.
The mother’s illicit substance use and supervised time
Ms D noted that the DFFH response dated 17 August 2023 did not substantiate concerns about physical abuse. The parties agreed that the children had been exposed to the family violence. She referred to research that shows children who experience family violence even when not present by for example hearing arguments, seeing hostile body language and facial expressions, experiencing the aftermath of incident for my police intervention and disrupted parenting arrangements that the impacts are not always immediate and can be long term. Ms D observes the children were not demonstrating behavioural stresses or developmental trauma but for X in particular the transition to school may be particularly challenging. She also thought that the parents may have emotional vulnerabilities in a dynamic that impacts on their ability to effectively and safely co-parent. She identifies the mother’s tests as supporting illicit substance use and this may limit the capacity to respond to the children's needs and provide them with a safe environment.
Ms D had access to Dr C’s reports. She also referred to the HFTs. Whilst the mother claimed that the cocaine use was a once off, the mother had appeared to give misleading information during the previous assessment and previous affidavits and Dr C identified a concern that the mother may have potential drug problems. If the mother is addicted to cocaine that would reduce her parenting capacity. There is less risk if the substance use was a once off as claimed but if not, it is suggested the mother has limited insight into the consequences of her behaviour or poor impulse control or reduced commitment to comply with orders and she might be limited in her understanding of how substance use can impact on her functioning and parenting capacity.
Referring to the updated information, Ms D thought that it did not indicate an unacceptable risk requiring supervision but that it did raise some doubts as to the mother's capacity to provide consistent and high-quality care for the children. With respect to the father’s proposal for a change of residence, Ms D said that the children had a familiar and trusting relationship with the father and they have been in the primary care of the mother since birth and that would be a significant change for them. The father's ability to provide the children primary care, support their emotional needs as well as their relationship with their mother is untested. I also accept that the assessment of unacceptable risk is a predictive one and that it is not a matter of waiting until something happens. However, I also cannot consider the risks of the mother’s illicit substance use in isolation.
Ms D stated that given the contested risk factors and the parenting dynamic it was difficult to make long term recommendations. Given the fact that the children are doing well and the potential impact of a change of residence on the children, if the court considered that the mother’s illicit substance use has or will escalate or if the mother does not genuinely address her illicit substance use then the children should live with the father and spend regular time with the mother.
I do not think the picture of the mother’s illicit substance use is as clear cut as the ICL and the father state in their written submissions. I accept that positive HFTs are troubling and accept that the mother has not brought any expert evidence to challenge Dr B's evidence. It is concerning that there have been positive test results, but the fact remains there is a lack of evidence that the mother’s illicit substance use is to such an extent that it is impacting negatively on the children. The ICL misstates the evidence when she says that the fourth HFT shows regular daily use. Dr B was very clear that these tests are not precise, and it is not possible to tell whether someone is using amounts daily or higher amounts but less frequently. In her written submissions, the mother refers to Dr B’s report of 7 November 2024 that the amount of the drug and number of drug use occasions with precision cannot be estimated. The mother maintains her position that she does not use illicit substances and only has used cocaine on the one occasion. As I have previously stated in these reasons, I have concerns about the fourth HFT and the absence of dexamphetamine. I do not accept the father’s submissions on this point. A change of residence needs to balance all the risks.
Both the ICL’s and the father’s submissions focus on the mother’s illicit substance use being an unacceptable risk. However, Ms D pointed out that it is necessary to consider the competing risks holistically. It is complex and incudes considerations of short term and long term risks. The mother’s drug use cannot be examined in isolation. I accept that the short and long term risks are serious and that the children’s young ages make them more vulnerable.
What makes this case so difficult and perplexing is the fact that the evidence indicates that the mother uses illicit substances from time to time however the evidence does not show the children being neglected or abused in the mother's care, in fact it is to the contrary. The subpoenas to the children’s childcare and kindergarten centres show that the only concern was the file note changes with X referring to Mr E. Given that no other material from that subpoena was tendered, I am of the view that there were no other issues of concern in those records and observe that the childcare centres have been proactive in reporting concerns. The ICL submits that the childcare and kindergarten are vigilant and proactive and have demonstrated this with respect to the bruise sighted on X and the scratch on her face. Reports from X’s kindergarten teacher show that X presents as bubbly, confident, happy and social and that she has not notice any difference in X’s presentation when dropped off by the mother or father. The teachers also describes Y as appearing clean and tidy and happy to see both parents when they collect him.
The ICL submits that based on the evidence of both parties and information provided by the daycare and kindergarten, both children are doing well and that the mother has been more actively involved with both places. The ICL accepts that the mother has demonstrated a detailed knowledge and insight into the children’s routines and emotional and psychological needs and that the children have a warm, close and loving relationship with the mother. The only concern is again the children’s safety in her care.
PARENTING GENERAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The object set out in s,60B help clarify what Part VII aims to achieve which is the best interests of the child are met which includes ensuring their safety and to give effect to the Convention on the Rights of the Child. Section 65D of the Act gives the Court the power to make a parenting Order which is defined by s.65DA.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the best interest principles as described in s.60CC(2),and s.60CC(3) for matters relating to Aboriginal and/or Torres Strait Islander persons.
The best interest principles I must take into consideration are outlined in s.60CC(2) of the Act:
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
This includes what arrangements promote the safety of the child and each person who has the care of the child from being exposed to or subjected to abuse, neglect or family violence, the views of the child and their developmental, psychological, emotional and cultural needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. Pursuant to s.60G I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence being mindful always that the best interests of the child is paramount.
The children are young and have not expressed their views about the living arrangements directly. It is clear that they feel comfortable and close to both parents. They will benefit from continuing to have the shared care arrangement.
The Full Court of the Family Court discussed the assessment the court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The court must make findings of fact based on the balance of probabilities. A risk assessment is a predictive exercise. The risk may be a possibility, probability, or a certainty. Risks of harm are not subjectable to proof.
I accept the reference in the father’s submissions with respect to the case law on unacceptable risk.
A five member bench of the Full Court of the Family Court Division 1 of the Appellate jurisdiction recently delivered reasons in Pickford & Pickford [2024] FedCFamC1A 249 with the aim of providing guidance for the difficult task of evaluating allegations of family violence. Coercive and/or controlling behaviours can be particularly challenging to identify as it is usually not a single incident but is a pattern of behaviour. Family violence can involve a range of behaviours that are dependent on context. It is not limited to behaviour that coerces or controls. It is not necessary to establish that the perpetrator intended to be coercive and/or control the other person. The definition of family violence in s.4AB of the Act is necessarily broad as family violence can encompass a range of behaviours which needs to be assessed in context. A particular behaviour may constitute coercive control in one context but not in another.
At paragraphs 47 and 48, Aldridge and Carew JJ state the following:
The focus of the fact finding process is on the behaviour and the impact of the behaviour. It is the behaviour that coerces or controls. It requires action and reaction. A single act is unlikely to be coercive or controlling but it may be. Behaviour that coerces or controls may be innocuous, subtle, capable of different interpretations, complex, undermining, etc. Such behaviour may create impossible expectations for the other family member. It may be transactional and involve punishments for perceived failures. The impact of the behaviour can be insidious. A confident and happy family member may lose their confidence, their self-esteem, question their sanity, shun their family and friends, become depressed, irritable, inefficient, and unhappy. There may be times when they strike out either verbally or physically.
When determining an allegation that a person has engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence to:
(a) identify the behaviour about which complaint is made;
(b) identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
(c) identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
(d) make all relevant factual findings; and
(e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.
It is important to distinguish violence from high conflict. They are two distinct things. I am satisfied these orders balance the competing risks. The fact that a party’s conduct could fall within the statutory definition of family violence does not mean that conduct is family violence (see Carter & Wilson (2023) FLC 94-129). It all depends on context.
In this case I have found that the father has engaged in coercive controlling behaviours against the mother both during and after the relationship. The father’s response upon finding Y alone and not making any attempt to contact the mother but rather waiting until she came home and the photographs he took of the mother’s medications and their staging are both examples of the father's coercive controlling behaviour. I accept that the father had genuine reasons for being concerned about Y being left on his own but when seen in context of the father’s other behaviours, part of his reaction seems aimed at catching the mother out rather than being worried. He may also have had concerns about the mother's prescriptions, but his response is coercive and controlling. This does not need to be intentional on his part. It is significant too that any such concerns about the mother’s medications did not result in him changing his travel plans for work or taking other protective measures. I reject the father’s submission that the mother’s use of prescription medication compounds the risk. That aspect of the case was not made out.
Not every instance of coercive control is clear cut. Other examples are more straightforward, including the father monitoring the mother’s movements which he did during the relationship specifically in January 2023 and post-separation by involving unnamed neighbours and asking them to report back to him. He continued to monitor her as he refers to people that he alleges he saw leaving her home. The father has also been denigrating and undermining of the mother to various experts. He also denied any adverse childhood experiences to Dr C and Ms D who he was aware was assessing both parties and reporting to the court but gave a very different picture to Dr G and again was highly denigrating and critical of the mother.
The father’s negativity and disparagement of the mother is not wholly explained by his concern about the children’s safety. The children have been exposed to his coercive control. Children are not secondary or indirect victims of family violence. It does not matter if the behaviour is directed at the children or not.
Both parents have vulnerabilities. There is no doubt that these proceedings have added to the stress both parties feel. It is hard to understand why the mother misled the court about the HFTs particularly given her evidence that she knew she would be caught out. This behaviour does appear to be avoidant and self-sabotaging. The other perplexing aspect of the mother’s evidence is her failure to acknowledge using illicit drugs apart from one instance of using cocaine. This is the face of not one but four HFTs for different substances. Her ongoing denials and lack of any credible explanation heightens the risk to the children. Another complicating factor is that the pressure the mother feels and the scrutiny she is under from the father that may be a contributing factor to her using illicit substances and her refusal to admit it.
I do not accept the father’s submission at paragraph 25 of his written submissions. The tenor of the mother’s evidence was not that there is only a problem if she gets caught. This completely ignores the insidious nature of the father’s coercive and controlling behaviour. It is difficult to make admissions when under that sustained scrutiny and attack. There are instances of both parties being avoidant and not taking responsibility for their own actions.
Both the ICL’s and the father’s submissions focus on the mother’s illicit substance use being an unacceptable risk. However, Ms D pointed out that it is necessary to consider the competing risks holistically. It is complex and incudes considerations of short term and long term risks. The mother’s drug use cannot be examined in isolation. I accept that the short and long term risks are serious and that the children’s young ages make them more vulnerable.
Even though the positive HFTs are concerning, the evidence of immediate risk of harm to justify changing the living arrangements is not there. This is particularly so when it is remembered that it is not a case of the father’s home being risk free. The children have a close and loving relationship with both parents and continue to do well based on the current evidence.
I have real concerns about the father’s ability and willingness to promote the children’s relationship with the mother. It was also clear that he had not thought deeply about how his proposal for the children to be in his sole care would work, with the children only spending limited day time periods with the mother. Particularly, how he would manage his work commitments and also manage the children’s distress and confusion that they would feel if I made the orders he seeks. I accept the mother’s submission which echoes the ICL’s that the father had not thought through the impact of his proposals on the children and the adjustments he would have to make. The ICL opposes the father’s proposal for primary residence with limited daytime visits for the mother. The HFT regime proposed by the father, given the history, is unrealistic and there is also the cost of these tests which poses a further issue.
I acknowledge that the positive HFTs are troubling and the mother's ongoing denials of using illicit substances. The ICL’s and the father’s proposals to change residence have to be seen in that light. The ICL submits that as a result of the positive tests for cocaine, MDMA and methamphetamine the court should make a finding that the children are at an unacceptable risk if they remain in the primary care of the mother. The ICL does not go further and analyse as to how reversing the arrangements ameliorates the risk. I am unable to conclude on the state of the evidence that the ICL’s proposal to reverse the current residence arrangements is in the children’s best interests. This may seem counter intuitive given the positive HFTs but what I keep coming back to is the fact that everyone agrees the children are thriving. The children present as well cared for in the mother’s care which is not consistent with the mother being a chronic illicit drug user. I do not think that reversing the current live with arrangements or ordering an equal time basis will ameliorate the risks. Rather it poses different risks and is likely to at the very least cause the children confusion and distress.

The ICL submits that it is troubling that the father continues to deny any family violence and has a lack of insight into his behaviour and how his behaviour is poor role modelling for the children. However, the ICL further submits that the court cannot find that the children would be at an unacceptable risk of harm if in the father's primary care. I accept the seriousness of these concerns. However, given the father’s coercive controlling behaviour towards the mother, I have real concerns that a parenting arrangement where the parents have equal time or the father has majority time would alter the power dynamics between the parties even further which will be detrimental to the children’s wellbeing. If the children were in the father’s care for a greater amount of time than the mother’s, the father would likely denigrate and undermine the mother’s parenting which would detrimentally impact the children and would not be in their best interests.
I accept the mother’s submissions that the concern about the children being placed in the father’s primary care is not because the father represents an unacceptable risk to the children. He is not. It is a matter of considering the children’s best interests.
ORDERS
I have given serious consideration as to whether this is one of those cases where a conditional order is appropriate such as making the current living arrangements conditional on the mother engaging with or re-engaging with a drug and alcohol counsellor and providing them with the positive drugs tests and Dr B’s evidence. The challenges of making these types of orders are well documented in Oberlin & Infeld [2021] FamCAFC 66, Lainhart & Ellinson [2023] FedCFamC1A 200 and most recently Miyajima & Mikkelsen [2024] FedCFamC1A 208. In his written submissions the father says he no longer seeks an order for the mother to engage in drug and alcohol counselling given the mother’s previous attendance and denial of drug use.
I also considered whether interim orders should be made with further drugs tests to be completed but have decided that will not assist this family. Having ongoing proceedings on foot would only continue to subject the parties to ongoing scrutiny and stress.
The parties consent to an order being made for them to exercise joint decision-making for major issues concerning the children. I am satisfied that it is in the children’s best interests to make that order. Both parents will remain closely involved in the children’s care.
They also consent to an order for the father to complete a men’s behavioural change course and provide the mother with evidence of its completion. Whilst the parties consent to such an order, I am not satisfied that it is appropriate to make that as a final order. If the father is motivated to better understand his behaviour and commit to change, he will not need an order for him to either continue his counselling with Dr G or another experienced counsellor and/or complete such a course. If he needs an order to do it, it will have limited utility. I have formed the same view in regards the mother attending drug and alcohol counselling. I will make an order if the mother engages with a drug and alcohol counsellor the mother be permitted to provide them with copies of the HFT results, Dr B’s reports, a copy of these Orders and reasons should she wish to engage with further drug and alcohol counselling. She may feel more able to if she does not feel under surveillance. Both parents have commenced a tuning into kids course.
I will order that the children continue to live with the mother nine nights a fortnight during school terms.
During school holidays the ICL seeks that the children spend five-day blocks with each parent which is what I ordered for the 2024/2025 summer holidays in the Orders made 8 November 2024. Typically, term school holidays are for two weeks unless the children attend a private school. I do not think the five-day rotations is practical during school term holidays as the days will be uneven and could be a source of conflict. Both parents seek orders to share the school holidays equally on a week about basis. I will order that the children spend time with the parties on a week about basis during the term and longer summer school holidays.
The parties seek slightly different orders for various special days. The mother in her written submissions in the alternative to her proposal agrees to the alternate orders provide by the father in his written submissions. The ICL submits these days be spent as agreed between the parties. I will make the orders as outlined in the father’s alternate orders provided in his written submissions.
The father seeks an order to ensure the children are available for their facetime calls with the other parent and that it is noted the call may not last for the whole 15 minutes. There is no evidence before me besides the issue across the December 2023 Christmas period that facetime calls have been a problem. I will not make this order.
The father and the ICL seek orders that X attend GG School in Suburb H commencing 2025 and that Y continue to attend Q School and eventually attend HH Kindergarten in Suburb H when age appropriate. The mother does not address the children’s schools and/or kindergarten in her written submissions or final orders sought. The mother was cross-examined about primary schools for X to attend noting she had gone to an open day for GG School which is a catholic school and one for Q School. The mother referred to having attended GG School herself and that a lot of X’s friends were attending that school. Neither party proposed an alternative for Y’s schooling arrangements. Given it is now March 2025 and there has been no application to re-open, these Orders are redundant.
The mother seeks orders addressing travel. This was not raised during the hearing. The ICL’s and the father’s written submissions do not address travel. Noting that the ICL filed first, and the mother and father filed simultaneously, I decline to make them. The parties will need to either agree to travel or make a discrete application to the court.
I will make the injunction that the mother and father agree to which includes a restraint on the mother bringing Mr E or any other motorcycle club members into contact with the children. I am satisfied this is appropriate given the evidence.
As the mother and father seek an order for handovers that do not occur at kindergarten or school but instead Suburb H McDonalds, I will make that order rather than handovers being at the parties’ homes.
For the reasons I have given I am satisfied that the orders are in the children’s best interests.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Dated: 7 March 2025

File number(s):	MLC 2392 of 2023
Judgment of:	JUDGE HARLAND
Date of judgment:	7 March 2025
Catchwords:	FAMILY LAW - Parenting only – family violence – coercive control – issues of risk in relation to the mother’s alleged prescription and illicit drug misuse – father’s application for change of residence –family report ordered part way through the final hearing – whether the mother poses an unacceptable risk to the children –– mother’s positive hair follicle tests for cocaine and methamphetamine – parenting capacity – father’s ability to promote the children’s relationship with the mother – whether or not there should be a change of residence – impact on the children of the orders sought by the father and the independent children’s lawyer – consideration of conditional orders.
Legislation:	Family Law Act 1975 (Cth) ss.4AB, 60B, 60CA, 60CC(2), 60CC(3), 65D, 65DA, 60G Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)
Cases cited:	Carter & Wilson (2023) FedCFamC1A 9; (2023) FLC 94-129 Isles & Nelissen [2022] FedCFamC1A 97 Lainhart & Ellinson [2023] FedCFamC1A 200 Miyajima & Mikkelsen [2024] FedCFamC1A 208 Oberlin & Infeld [2021] FamCAFC 66 Oswald & Karrington (2016) FLC 93-726 Pickford & Pickford [2024] FedCFamC1A 249
Division:	Division 2 Family Law
Number of paragraphs:	224
Date of last submission/s:	18 December 2024
Date of hearing:	6, 7, 8, 9, 10 May 2024,14 June 2024 and 10 October 2024
Place:	Melbourne
Counsel for the Applicant	Ms Isaacson
Solicitors for the Applicant	Barbayannis Lawyers
Counsel for the Respondent	Mr Strong
Solicitors for the Respondent	Tfa Legal
Counsel for the Independent Children’s Lawyer	Dr Alexander
Solicitors for the Independent Children’s Lawyer	Victoria Legal Aid

MLC 2392 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TOMKINS Applicant
AND:	MS MILLIKEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	7 MARCH 2025