Zemanova & Hoefler - [2024] FedCFamC1F 675

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zemanova & Hoefler [2024] FedCFamC1F 675

File number(s): SYC 9126 of 2022

Judgment of: BOYLE J

Date of judgment: 22 October 2024

Catchwords: FAMILY LAW – CHILDREN – Where the children live with the maternal grandfather and spend time with the parents – Where the parties agree that the children should live with the mother and she should have joint decision making authority with the maternal grandfather – Where there is a dispute as to what time the father spends with the children – Where there are allegations of serious family violence including coercive control made by the mother against the father - Consideration of what orders will best promote the children’s safety – Orders made for the father to spend time with the children one day per fortnight – Orders made for the maternal grandfather to spend time with the children – Where the children are of Aboriginal heritage – Consideration of what orders will ensure their connection to their culture.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC

Cases cited:
Isles & Nelissen (2022) FLC 94-042

M v M (1988) 166 CLR 69; [1988] HCA 68

Division: Division 1 First Instance

Number of paragraphs: 186

Date of hearing: 26-28 August 2024

Place: Sydney

Counsel for the Applicant: Ms Soto

Solicitor for the Applicant: Women’s Legal Service NSW

Counsel for the First Respondent: Mr Moshides

Solicitor for the First Respondent: Ann Legal

Counsel for the Second Respondent: Ms Meares

Solicitor for the Second Respondent: The Family Law Co

Counsel for the Independent Children's Lawyer: Ms Beckett

Solicitor for the Independent Children's Lawyer: Joplin Lawyers
ORDERS

SYC 9126 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ZEMANOVA

Applicant

AND:
MR HOEFLER

First Respondent

MR WARD

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:
Decision Making
1.The mother and maternal grandfather shall have joint decision making authority for the long term issues for the care, welfare and development of the children, X born 2017, Y born 2019 and Z born 2022 (herein after referred to as the “children”), including but not limited to:
(a)The children’s education (both current and future);
(b)The children’s Aboriginal culture; and
(c)The children’s health (including immunisations, doctor’s appointments and specialist appointments).

2.Within 72 hours, the mother and maternal grandfather shall provide to the father notice in writing of any decision made by them in exercise of their decision-making authority in relation to long-term issues for the children.

Live with and spend time with – Mother and maternal grandfather
3.From the date of these orders until 29 November 2024, and subject to Order 10:
(a)The children shall live with the maternal grandfather.
(b)The children shall spend time with the mother as agreed between the mother and maternal grandfather and failing agreement, each alternate weekend from the conclusion of school/daycare or 3.00 pm on Friday until 3.00 pm on Sunday, with such time to occur on the weekends that the father is not spending time with the children pursuant to Order 7.

4.From 29 November 2024 until 29 December 2024, and subject to Order 10:

(a)The children shall live with the maternal grandfather.
(b)The children shall spend time with the mother as agreed between the mother and maternal grandfather and failing agreement, each alternate weekend from the conclusion of school/daycare or 3.00 pm on Thursday until 3.00 pm on Monday, with such time to occur on the weekends that the father is not spending time with the children pursuant to Order 7.

5.Commencing 29 December 2024, the children shall live with the mother.
6.Commencing 29 December 2024, the children shall spend time with the maternal grandfather as agreed between the mother and the maternal grandmother, and failing agreement, on the second weekend of each month, from the conclusion of school/day care on Friday or 3.00 pm until 3.00 pm on Sunday.

Spend time with – Father
7.Subject to Order 12, the father shall spend time with the children on two Saturdays per month, being the first and third Saturday of each month, from 10.00 am until 7.00 pm, and should the father be rostered to work on those days, the time with the father may occur on a non-working day by agreement in writing.
8.The father shall provide to the mother and maternal grandfather a copy of his work roster within 48 hours of his receiving the roster.

Hair follicle testing
9.For a period of 12 months from the date of these Orders, the mother shall complete a hair follicle drug test at the request of the maternal grandfather on up to 2 occasions, for the detection of illicit substances and shall thereafter provide a copy of the results to the maternal grandfather.
10.Should the mother’s hair follicle drug test return a positive result to any illicit substance, the children shall live with the maternal grandfather and spend time with the mother supervised by the maternal grandfather as agreed, until such time as the mother provides 2 further hair follicle drug test results that are negative to all illicit substances.
11.For a period of 12 months from the date of these Orders, the father shall complete a hair follicle drug test at the request of the maternal grandfather on up to 2 occasions for the detection of illicit substances and shall thereafter provide a copy of the results to the maternal grandfather.
12.Should the father’s hair follicle drug test return a positive result to any illicit substance, the father shall spend time with the children professionally supervised by B Family Services at Town C, or such other contact service as agreed between the parties in writing, each alternate Saturday for no more than 4 hours, as arranged between the parties and the contact service, until such time as the father provides 2 further hair follicle drug test results that are negative to all illicit substances.
13.The father shall solely meet the costs of the professional supervision service in accordance with Order 12.

Changeover
14.Unless otherwise agreed in writing, changeover with respect to the father’s time with the children shall occur by the maternal grandfather delivering the children to Town D service station at the commencement of time and the father returning the children to the maternal grandfather’s home at the conclusion of time.

Parents Communication via AppClose
15.That the parents shall communicate directly with each other via the co-parenting application AppClose in relation to all issues regarding the children.
16.The parents shall ensure that the maternal grandfather has access to the communication on AppClose.
17.Within forty-eight hours of the making of these Orders, the parties shall install the AppClose application.
18.The parents shall utilise AppClose to discuss issues concerning the care and welfare of the children except in an emergency situation. The parents shall ensure that they do not discuss with each other issues concerning the care or welfare of the children in the presence of hearing of the children or involve the children in these communications.

Courses
19.The mother shall enrol and complete the Circle of Security Course within 3 months of the date of these Orders and provide the Independent Children’s Lawyer, the father and the maternal grandfather with a certificate of completion.
20.The father shall enrol and complete the Circle of Security Course within 3 months of the date of these Orders and provide the Independent Children’s Lawyer, the mother and the maternal grandfather with a certificate of completion.
21.The mother shall enrol and complete the Parenting after Separation Course within 3 months of the date of these Orders and provide the Independent Children’s Lawyer, the father and the maternal grandfather with a certificate of completion.
22.The father shall enrol and complete the Parenting after Separation Course within 3 months of the date of these Orders and provide the Independent Children’s Lawyer, the mother and the maternal grandfather with a certificate of completion.
23.The father shall complete a Men’s Behavioural Change Programme and provide to the mother and maternal grandfather a certificate of completion within 7 days of completion of such programme.
24.The mother shall continue to engage with drug and alcohol counselling as directed by E Health Services.
25.The father shall continue to engage with F Psychology as directed by his treating psychologist.
26.The Independent Children’s Lawyer has leave to provide a copy of the Father’s Police Criminal record, the mother’s affidavit dated 1 August 2024 and the Family Report dated 5 December 2023 to F Psychology, and the court notes that the father consented to this Order.

Medical
27.The mother, father and maternal grandfather shall ensure that the children attend upon a paediatrician, not through the public health system, for a paediatric review, unless an assessment has recently occurred or is currently being conducted, and for the purpose of this Order, the following shall apply:
(a)Within 7 days from the days of these Orders the maternal grandfather and/or the mother shall schedule an appointment for the children at their general practitioner for the purposes of obtaining a referral to a paediatrician.
(b)The maternal grandfather and/or mother shall accept the first available appointment for the general practitioner.
(c)Following obtaining a referral to a paediatrician, the maternal grandfather and/or mother will provide a copy of such referral to the father in writing.
(d)Within 7 days of receiving the referral, the maternal grandfather and/or mother shall do all things necessary to schedule the first available appointment with the paediatrician and notify the parents in writing of the date, time and location of the appointment.
(e)The maternal grandfather and/or mother shall facilitate the children’s attendance upon a paediatrician at the scheduled time, noting that the father is solely liable for all costs associated with the paediatrician appointments for the children.
(f)All parties are to ensure they follow any recommendations issued by the children’s treating paediatrician including recommendations for allied health support services and/or medications and/or further ongoing paediatric management.
(g)The father is at liberty to have a separate appointment (without the mother or maternal grandfather being present) with the paediatrician in relation to the children’s medical needs.

Information
28.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party.
29.The mother and maternal grandfather shall notify the father of any changes to the children’s treating health professionals and/or allied health professionals and shall authorise them to communicate with the father about the condition and treatment of the children.
30.All parties are permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress, and are permitted to access any online portal that parents ordinarily access.
31.The maternal grandfather is permitted to attend the children’s medical and specialist appointments, school events normally attended by parents and extra-curricular activities.
32.The parties are each permitted to provide a copy of these Orders to any school each of the children attend and any of the children’s treating health professionals and/or allied health professionals.
33.Should the mother or father be charged with any criminal offences or traffic offences involving drugs or alcohol, they shall provide notice to the maternal grandfather in writing, within 3 days of that charge.

Restraints
34.Pursuant to s 68B of the Family Law Act 1975 (Cth), the parties are hereby restrained by injunction from:
(a)Allowing the children to be exposed or remain in the hearing or presence of an incident of family violence as defined by s 4AB of the Family Law Act 1975 (Cth).
(b)Denigrating, bad mouthing, or criticising any of the other parties or any member of the children’s extended family in the hearing or presence of the children or of any other children who live in the children’s household or in a residence where they regularly stay overnight.
(c)Consuming alcohol above the blood alcohol level of 0.05 during any period that falls 24 hours prior to the children being in their care or during any period that the children are in their care.
(d)Consuming illicit substances at any time.
(e)Using physical discipline or the threat or corporal punishment on the children as a behaviour management technique.
(f)Discussing the family law proceedings in the hearing or presence of the children or any other children who live in the children’s household or in a residence where they regularly stay overnight.

Independent Children’s Lawyer
35.The Order for the appointment of an Independent Children’s Lawyer shall remain in force for a period of three months from the date of these Orders.

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
BOYLE J:

These are parenting proceedings with respect to the three children of the Applicant mother and First Respondent father, X aged seven, Y aged five and Z aged two.
The children presently live with the Second Respondent maternal grandfather and have done since December 2022. The children spend time with the mother when she stays at the maternal grandfather’s home, typically between Monday and Friday each week. The children spend time with the father for four hours each Saturday and Sunday.
PROPOSALS OF THE PARTIES
At the conclusion of the matter, the parties agreed on a number of issues. Firstly, that the mother and maternal grandfather share decision making authority for the children, and they be required to notify the father of any decision made in relation to any major long term issues. Secondly, that the children move from the maternal grandfather’s care to the mother. Thirdly that the children spend one weekend each month from Friday to Sunday with the maternal grandfather. The specific times differ between them, but little turns on that.
There remains a dispute with respect to time arrangements between the father and the children. There is also dispute over a number of ancillary orders.
The mother seeks that the children spend no time with the father. The mother seeks orders restraining the father from approaching her, or the children’s residence and causing threats or harm to them.
The father seeks that once he has completed a Men’s Behavioural Change Programme, his time with the children increase gradually. The endpoint is two weekends each month, from after school Friday until before school Monday.
The maternal grandfather seeks the children spend time with the father two Saturdays each month, from 10.00 am until 7.00 pm, and that he facilitate changeovers with the father. He seeks the mother and father complete hair follicle drug tests at his request for a period of 12 months. Should the mother provide a positive result, her time with the children be supervised by the maternal grandfather until she provides two negative hair follicle tests. Should the father provide a positive result, his time with the children be professionally supervised until he provides two negative hair follicle test results.
The maternal grandfather seeks an order that he be authorised to attend medical appointments, extra curricular activities and school events. He seeks that he be able to obtain information about their physical and psychological health and school progress. It is agreed that he hold joint decision making authority with the mother. To exercise decision making he requires information. No controversy was raised during the hearing against orders permitting his attendance at those appointments and events.
The Independent Children’s Lawyer sought that the father’s time with the children increase gradually. The endpoint of time, once Z attains six years and the father has completed a Men’s Behavioural Change Programme, is from 3.00 pm on Friday until 7.00 pm on Sunday each alternate weekend. Additionally, the Independent Children’s Lawyer sought time with the maternal grandfather during school holidays.
BACKGROUND
The parties commenced cohabitation in 2016. The mother was 15 years old, and the father was 20 years old. Between 2016 and 2022 the parties had several brief periods of separation. The mother’s evidence is that the relationship involved significant family violence by the father. The father’s position is that they argued, but that he did not engage in family violence.
In 2018, the mother and father moved from Town C to Sydney. In early 2019, the father lost his job.
In early 2019 the mother moved with X to her father’s home for two months.
In mid-2019, the mother moved back to Sydney to live with the father. The mother alleges that the father started to use an illicit drug in 2019. The father dates his use of the drug as between mid-2021 and early 2022.
In late 2019 the parties moved to the maternal grandfather’s home. They subsequently moved in with the father’s brother, then with friends.
In early 2020, the mother made a report to the police alleging that the father had attempted to strangle her. An Apprehended Domestic Violence Order (“ADVO”) was taken out for the protection of the mother. The father was charged with offences. The mother returned to her father’s home with X and Y.
In early 2020, the mother and children moved to public housing in Town G. The mother and father reconciled, and the father moved into the mother’s home. The mother withdrew her statement to the police, and charges against the father were withdrawn.
In early 2021, the mother’s evidence is she observed the father using an illicit drug. In 2021 the mother commenced using the illicit drug.
In mid-2021, the mother and father separated for a brief period. The mother had a relationship with a friend. She found out she was pregnant with Z. The parties reconciled shortly thereafter. There was uncertainty around Z’s paternity which was resolved by a DNA test in 2024. The mother’s evidence is she ceased using illicit drugs during her pregnancy with X.

In late 2021, the father was charged with driving under the influence of an illicit drug. There is a dispute as to whether X and Y were in the car with him at that time. There is no evidence on which to make a finding to resolve that factual dispute.
The parties separated on a final basis in April 2022. Between April 2022 and December 2022, the children primarily lived with the mother and spent time with the father as agreed.
In mid-2022, the father was charged with breach ADVO, and incarcerated bail refused. The mother returned with the children to the maternal grandfather’s home.
In late 2022, the mother commenced a relationship with Mr H.
In late 2022 the father was released from gaol on condition that he complete a drug and alcohol programme. He attended a drug and alcohol service. The evidence supports that he complied with requirements, in that he was not returned to custody.
Following the father’s release from gaol, the mother facilitated the children spending time with the father each alternate weekend. An ADVO was in place between the parents, and Mr H assisted with changeovers.
In late 2022, the mother and children lived with Mr H. The mother’s evidence is that she was subjected to family violence in that relationship.
The following month, the mother relapsed into use of an illicit drug.
In December 2022, the mother took the children to the father’s home. She asked the father to care for them while she organised separating from Mr H.
The next day, Mr H was arrested and charged with domestic violence related offences. A provisional ADVO was taken out for the mother’s protection. On the following day, the father refused to return the children to the mother.
These proceedings were commenced by the mother on 21 December 2022, and listed urgently. On 23 December 2022, orders were made for the return of the children to the maternal grandfather’s home, and for the children to live with the mother provided she lived with the maternal grandfather. Orders were made for the father to spend time with the children each alternate weekend from Friday to Sunday supervised by his housemate and his housemate’s sister in law, or by another agreed person. The maternal grandfather was joined as a party to these proceedings.
In late 2022 the mother had an argument with her sister Ms J, whilst the mother was holding a knife. The maternal grandfather intervened. The mother was charged with an indictable offence, and an ADVO was taken for the protection of Ms J.
In January 2023 interim orders were varied for the children to live with the maternal grandfather, and spend time with the mother in his presence as agreed. The orders for the father to spend time with the children remained in place.
In March 2023 orders were made for the maternal grandfather to have sole parental responsibility for the children; they live with him; and spend time with each parent for four hours on Saturday and Sunday.
In early 2023 the mother joined a waiting list for drug and alcohol counselling.
In early 2023, the father commenced a relationship with his current partner Ms K. Ms K has a child from a previous relationship, aged three.
In early 2023, a final ADVO for the protection of the mother against Mr H was made. The ADVO is in place until early 2025.
In mid-2023, the mother received a Community Corrections Order in relation to the incident with Ms J. She was required to complete drug and alcohol counselling and mental health counselling, and submit to regular drug testing. A final ADVO was made for the protection of Ms J. In late 2023, the ADVO was varied to permit contact between the sisters.
In mid-2023, the mother had a relapse and used an illicit drug.
In mid-2023, the mother commenced counselling with Ms L at E Health Services. She also commenced counselling with Ms M through Victims Services.
In late November 2023 the maternal grandfather ceased permitting time with the father overnight. The father had recently commenced residing with Ms K and her brother. There was an agreement that the father would not spend overnights at Ms K’s home. There was a dispute about whether that agreement was adhered to. The mother and maternal grandfather have been concerned about drug use by members of Ms K’s family, although not Ms K. There is no dispute Ms K’s mother has had issues with substance abuse.
In 2023, the mother’s child N was born. N is currently aged one year. N’s father is not involved in her life.
THE CHILDREN
X is aged seven years. He is in year one at O School. X loves school, and according to his grandfather would attend school every day if that was possible.
In early 2023, X was diagnosed with Autism Spectrum Disorder (“ASD”), and Attention Deficit Hyperactivity Disorder (“ADHD”). He had previously been assessed in 2021 and was diagnosed with Global Development Delay (“GDD”).[1]
[1] Exhibit M10.
X has been observed to have difficulty adjusting to small changes.[2] He is not presently prescribed medication. He receives support from an occupational therapist, speech therapist and dietician. The dietician provides advice on diet and toileting.
[2] Exhibit M10.
Y is aged five years. She is in kindergarten at O School. Y has a medical condition which is managed through medication.
Z is aged two years. She attends P Preschool from Monday to Thursday between 8.45 am and 3.30/4.30 pm.
Z is undergoing an assessment of potential ASD and ADHD in late 2024. Z currently receives support from an Occupational Therapist. She has a medical issue and is on a waitlist to see a surgeon.
In early 2024, a paternity test confirmed Z to be the father’s biological child.
The mother identifies as an Aboriginal woman. The father identifies as an Aboriginal man. The children share both their mother and father’s Aboriginal heritage.
DOCUMENTS RELIED UPON
The mother filed a Case Outline Document identifying the documents relied upon:
(a)Amended Initiating Application filed on 21 August 2024.
(b)Affidavit of Ms Zemanova filed 1 August 2024.
(c)Affidavit of Ms J filed 1 August 2024.
(d)Child Impact Report by Mr Q dated 2 February 2023.
The father filed a Case Outline Document identifying the documents relied upon:
(a)Response filed on 17 January 2023.
(b)Affidavit of Mr Hoefler filed 22 August 2024.
(c)Affidavit of Ms K filed 21 August 2024.
The maternal grandfather filed a Case Outline Document identifying the documents relied upon:
(a)Affidavit of Mr Ward filed 8 August 2024.
(b)Affidavit of Ms R filed 8 August 2024.
The court was assisted by a Family Report prepared by Court Child Expert Mr Q dated 1 December 2023. The Family Report writer was cross-examined.
Each of the parties were cross-examined. The maternal aunt Ms J and Ms K were cross examined. Ms R was not required for cross-examination.
A number of documents were tendered and marked as exhibits in the proceedings. I have had regard to those documents, as well as the affidavits relied upon by each of the parties.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list, and the court can take into account any other matter relevant to the particular circumstances of a child.[3]
[3] Family Law Act s 60CC(2)(f).
In considering what orders would promote the safety of the children, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68, and Isles & Nelissen (2022) FLC 94-042 are relevant to the assessment of risk. The analysis requires consideration of past conduct of the parties to assess whether there is a risk to the children in the care of either of their parents or maternal grandfather, and the magnitude of that risk. The assessment of risk is an “evidence based conclusion”.[4] The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
[4] Isles & Nelissen (2022) FLC 94-042.
I will have regard to the other relevant matters set out under s 60CC of the Act as they arise in these reasons. There is agreement with respect to decision making authority for the children, and no issue falls for determination with regard to that.
ISSUES
The issues in this matter are:
·What risks, if any, exist for the children?
·Can any risks for the children be ameliorated, and what arrangements would promote their safety?
·What time should the father spend with the children and what, if any, conditions would promote their safety?
·What time should the maternal grandfather spend with the children?
·What orders will promote the children’s connection to their culture?
What risks, if any, exist for the children?
Family violence in the relationship between the mother and father
There are serious allegations of family violence in this matter made by the mother against the father. The allegations are denied by the father; he concedes mutual arguments between the parents.
The father’s position is that his relationship with the mother was “up and down at times”, and that they both started arguments with each other. When they argued they raised their voices at each other. He referred to a couple of occasions where he tried to leave the home to cool down during an argument, and the mother blocked his way. He raised his voice, telling her to get out of the way. His evidence is he regarded leaving as the best way to calm the situation. He says he has been hit by the mother.
The mother’s position was that her relationship with the father involved physical violence towards her, verbal violence towards her both in text and directly, and behaviour which controlled her. Her evidence detailed a number of specific occasions of the father’s violence over the length of their relationship, pointing to a pattern of conduct by him that was coercive and controlling.
The mother was 15 years old at the start of the relationship, and 17 years when she had the first of her four children. The father was 20 years old at the beginning of their relationship. There were numerous occasions she left the relationship, and took the children to stay with her father. This is supported by her father’s evidence.
Apart from the mother’s evidence detailed in her affidavit, there is evidence from NSW Police records. The records tendered contain accounts of police attendances, ADVOs taken by NSW police for the protection of the mother, charges made and withdrawn against the father, and convictions the father received for contravene ADVO in late 2022. The father was convicted of offences related to sending threatening and harassing text messages, stalking and intimidating the mother in late 2022.[5]
[5] Exhibit M4.
The mother gave evidence that the first incident of family violence occurred around Christmas in 2017. Members of the father’s family were present. The father agrees X was learning to crawl. The father dropped an alcoholic drink on the floor, and the mother asked him to clean it up. There was an argument about that. The mother alleges that the father pushed her onto the bed, lay on top of her, and held her by her wrists. He spat on her. When she attempted to leave, he slammed the bedroom door into her face. The father alleges that the mother hit him on the back of his head. No report was made by either party to the police.
During cross examination the father at times denied details of the incident put to him, at times asserted the mother was lying and had made it up, and at other times said he did not recall. The father’s brother and his wife were present during the incident, as was the paternal grandfather. None of those people were called as a witness by the father. There was no evidence they were unable to give evidence.
None of the specifics of the father’s denial were put to the mother in cross examination. During cross examination she gave cogent and compelling evidence about the father’s conduct towards her. She was unwavering in her evidence. She readily conceded hitting the father.
The father did not call evidence from his father, brother or sister-in-law who were present at the home. The father was inconsistent in his evidence in whether he was denying incidents or could not recall them. The mother’s evidence was compelling. For these reasons I accept the mother’s evidence about this incident.
In 2019 the mothers says that the father shook Y when trying to settle her, causing her eyes to roll into the back of her head. Y was three months old. The mother was steadfast in her evidence that this had occurred, and it remains one of her concerns in the father spending time with the children.
The mother raised that the father has driven erratically with the children in the car, and whilst he has been using drugs. The father was disqualified for driving under the influence of an illicit drug in 2015. In 2016 he received a bond for driving with alcohol at a time he was not permitted any alcohol.
The mother deposes to an incident in early 2019 where the father was driving erratically, and she feared that he would kill her and X. In late 2021 the father was convicted of driving under the influence of an illicit drug. The maternal grandfather has concerns about the father driving erratically based on video he has seen of the father driving on social media.
The evidence supports that the father is abstinent of the illicit drug, which is not contested by the other parties. On the evidence available I do not accept that driving in a car with the father would place the children at an unacceptable risk of harm.
The specific incidents of violence by the father that caused him to be charged by the police are set out in the mother’s affidavit. For example, she refers to early 2020 when she tried to leave a friend’s home with the children, because she was concerned that the adults were drinking heavily. This included the father. He did not agree to her leaving, and locked the car so that she could get not the car seats for the children. The father grabbed her by the throat so that her feet were off the ground, and threw her on the floor. She landed next to X, who was sleeping with pillows and blankets on the floor. X did not wake up. She got up and hit the father across the back of the head. He placed her in a headlock, which restricted her breathing.
The police were called and arrested the father. An ADVO was put in place.[6] A brief separation followed. When the parties reconciled the mother withdrew her statement to the police. Her evidence was consistent with the material tendered from the police. I accept that she withdrew her statement because she reconciled with the father. For all these reasons, I accept the mother’s version of events.
[6] Mother's affidavit filed 1 August 2024 (“mother’s affidavit”), Exhibit MZ1.
During the parties’ separation, the mother had another relationship. When she found out she was pregnant with Z, she told the father she did not know if she was pregnant with his child. The mother describes the father calling her a “slut” and a “whore” frequently. In 2021, when the mother was about 15 weeks pregnant, the father created a post on social media which included “Can honestly thank her for the children tho. She does serve well as an incubator (For the first 2 times)”.[7]
[7] Mother’s affidavit, paragraph 77.
When the father was cross examined about calling the mother abusive names he agreed he probably called her bad names at times, but that it was an equal exchange. The father was taken to messages sent through his social media messaging account in 2021, during a brief separation. The mother was pregnant with Z when he sent the following messages: [8]
That was seriously the last straw you grimly little slut! I’m going for custody of the kids. I hope that thing in your gut kills you. You are the worst mistake of my life and trust me I’ve made heaps of them.
…I really mean that. I hope you have a slow and painful death. Sooner the better.
[8] Mother's affidavit, paragraph 85.
In cross examination the father’s evidence initially was that he could not recall the message. He then agreed he sent it. He then said the message was sent at a time when be believed that he was not the father of the unborn child, as though that explained sending such a message. He eventually conceded that looking at the message, it was “not okay to send to anybody”. His evidence is that he realised sending the message was not okay shortly after sending it.
I accept that the father sought to avoid taking responsibility for sending the message until that because unsustainable in cross-examination. I am satisfied that the father has been verbally abusive to the mother.
In late 2021 the mother describes the father coming down after using an illicit drug and that he “snapped out of the blue”.[9] He threw picture frames, household furniture and the contents of the children’s Christmas stockings around the house. He threw a Christmas present out of the bedroom window which caused the glass to smash.
[9] Mother’s affidavit, paragraph 80.
X screamed at the father “leave my mummy alone” and “get out of my house dad”.[10] The father threatened the mother should she contact the police.
[10] Mother’s affidavit, paragraph 83.
The mother fled the home the children and contacted police. When she returned she saw the flatscreen television had been smashed, the rooms ransacked and holes in the walls. The police attended and observed the damage, as is recorded in the police documents tendered.
Following these events, the father was charged with multiple offences. Charges were withdrawn at court other than a charge for destroy or damage property. I accept the mother’s evidence, which is supported by the police records. The withdrawal of the charges is consistent with her doing so after reconciliation with the father. [11]
[11] Exhibit M4.
In late 2021, the father sent a video to the mother. The father was shown performing a self‑harming action, and saying “You done this”. The mother contacted the police. The father was scheduled under the Mental Health Act,[12] and taken to hospital for a mental health assessment. The police observed the video, as is recorded in the police documents tendered. [13]
[12] Mental Health Act 2007 (NSW).
[13] Exhibit M7.
In mid-2022 following separation, the mother sets out an occasion when the father came to her home, and went to sleep. From her observation she believed that he had been using drugs. He did not wake until the next day. After the father woke, he left the house and returned with a meal from McDonalds. The mother had ordered other food during this time.
X drank from the father’s McDonald’s cup. The father smacked X between his shoulder blades, knocking him to the floor. When the mother tried to intervene the father pushed her to the floor, causing her head to hit the wall. This caused a hole in the wall. The father grabbed her by the shoulders and shook her, so that her head hit the floor repeatedly. The father grabbed the mother’s phone. He pinned her to the ground by placing his knee across her chest. He forced the mother to provide the pin to her online banking account, and transferred $500 to his account. He slapped her across the face.
The mother had received $1,000 in Commonwealth funding to assist her leave family violence. The father was aware of the receipt of the money, and took half of it. She had earlier offered him $200 to leave the home.
Shortly after the father left, the food delivery driver arrived. The delivery driver called the police and an ambulance, and stayed with the mother and children until they arrived. The police observed and photographed damage to the property, and bruising to the back of the mother’s head.[14]
[14] Exhibit M6.

After this incident the father sent text messages, and messages through social media to the mother. The police records disclose in a period of three days the father sent approximately 79 text messages to the mother, and a number of messages through Instagram. The messages varied, by way of example:[15]
I love you to death [Ms Zemanova]. You are my soulmate bub.
Go to his house. Bring him near my kids and I will loose my shit. Take that as a threat or not. He’s not to have any contact with them.
I’m not going to play games [Ms Zemanova]. Why do you keep thinking that? I’m not like you. I can’t bring myself to the children to win some dogshit battle between me and you. Look at how I talk to them about your dad ffs. I’d pay to see that dog cunt bleed out and dye but I still ask the kids about how much fun they had at pops house. Never spoke a bad word about him in front of them. Not have I done that about you. Although there’s lots of like to tell them. I’m more worried that you’ll stop me from seeing [X] on his birthday just like you did for [Y’s].
And the more you threaten me with police [Ms Zemanova] the more messy this whole thing gets. It’s quite easy for someone to make sure neither of us get the kids. I hate for that to happen but at the moment you’re not acting any better than I am and that’s not real great when it comes to child services opinion…
(As per original)
[15] Exhibit M6.
The father called the mother around 34 times over the period. The mother also reported these matters to the police. The father was incarcerated, bail refused, from mid-2022 until late 2022. I accept that he had no regard for the orders protecting the mother from his conduct.
The father was charged with a number of offences which were withdrawn. He pleaded guilty to multiple charges of contravene ADVO, and received a Community Corrections Order for each. He was required to participate in drug and alcohol, and domestic violence counselling. He was convicted and fined for another charge, and received a Community Corrections Order with respect to another charge.
I do not regard it as necessary to make individual findings about each and every incident of violence alleged by the mother. I have made findings about the particular examples set out above. The mother’s evidence is consistent, and compelling. I find that family violence occurred from the father towards the mother in the manner alleged by the mother. Her evidence is supported by police records, including direct observation by the police of injury to her, and damage and destruction of property. A delivery person arrived at the home, and called the police and an ambulance. They waited with the mother and children for them to arrive, and spoke to the police. It is compelling evidence from the police records in support of the mother’s version of events.
The text messages in evidence, admitted by the father, demonstrate that he has made derogatory taunts, threatened her, and threatened suicide blaming that on her.[16] I accept the evidence taken overall discloses a pattern of conduct consistent with coercive and controlling behaviour by the father.[17]
[16] Family Law Act 1975 (Cth) (“Family Law Act”) s 4AB.
[17] Family Law Act s 60CC(2A).
The children have been exposed to the father’s violence. They have been present in the home when the father has threatened the mother, denigrated her, and assaulted her. Sometimes they have been able to see it, at other times hear it. X has been pushed over by his father. He has tried to assist his mother to protect her from his father. The children have had their Christmas presents destroyed by their father. The children have been present when ambulance officers and police have attended their home to help their mother following the father’s assaults. I accept that they would have been frightened by his behaviour, and scared for their mother.[18]
[18] Family Law Act s 4AB.
The mother gave evidence that she withdrew statements made to the police when she and the father reconciled. This is consistent with the police records which note “The victim informed police that she has previously withdrawn statements to police due to fear and threats that have been made by the accused”.[19] I note that notwithstanding charges being withdrawn, there have been ADVOs put in place on the application of the police for the mother’s protection.
[19] Exhibit M4.
The mother concedes hitting the father on several occasions by way of self defence. Her answers were cogent and consistent. I accept her evidence.
The father maintained his denial of the mother’s allegations of family violence during cross examination. On many occasions during cross examination, he gave evidence he could not recall particular incidents. When confronted with evidence such as text messages he at times made concessions.
This approach of the father supports the submission that he has no insight into his conduct. Were his attitude to have changed I expect he would have readily conceded past conduct, and taken responsibility for it. I would expect to have heard evidence about the way he may approach issues differently in the future. Nothing in his answers, nor in his manner of giving evidence suggests his attitude has changed.
Family violence in the mother’s relationship with Mr H
In late 2022 the mother commenced a relationship with Mr H. They started living together in late 2022 with the children.
The mother’s evidence is that in late 2022 Mr H installed cameras around her home. He put a tracking application on the telephone, and sought to control her movements. The mother associates her relapse into illicit drug use with her relationship with Mr H. I accept this was a significant factor in her relapse.
In December 2022, the mother took the children to the father’s home and asked that he care for them while she put things in place to leave Mr H. She decided to separate after he threatened to “put [X’s] head through the fan”.[20] On the following day, Mr H was arrested, and charged with domestic violence related offences. There is a final ADVO in place for the mother’s protection.
[20] Mother’s affidavit, paragraph 134.
The children were subjected to family violence in the mother’s relationship with Mr H. The mother was candid about his violence to her, and to the children.[21]
[21] Family Law Act ss 60CC(2)(a), 60CC(2A).
Family violence in the maternal household
The mother argued with her sister Ms J at her father’s home in late 2022. The children were living there pursuant to interim orders. Her evidence is that she was using a knife in the kitchen, and was holding it whilst arguing with her sister. She accepts that her behaviour was frightening for Ms J, although she did not intend to harm her sister.
Both the mother and Ms J gave evidence that this was a one-off incident. The police attended, and an ADVO was made for Ms J’s protection. Ms J supports the mother’s evidence that this occurred at a time she was coming down from using illicit drugs. The mother’s evidence is that affected her behaviour at that time. I accept the evidence of Ms J and the mother.
Drug use
Both parents used illicit drugs during the relationship. Although there is a level of dispute about when the father used during the relationship it was at least between mid-2021 and early 2022. The mother agreed she commenced using an illicit drug during 2021 with the father. Her evidence is that she ceased using illicit drugs during her pregnancy with Z, and the father continued to use illicit drugs.
In late 2022 the mother relapsed into use of an illicit drug. In mid-2023 the mother again used the illicit drug. At that time she was subject to a Community Corrections Order, and advised her Community Corrections Officer of her relapse.
The mother has not complied within the time requirements for all urinalysis testing as required by interim orders. She completed hair follicle testing in October 2023, January 2024 and May 2024. All those results are negative. The mother commenced drug and alcohol counselling in mid-2023. Her last appointment was in mid-2024.[22]
[22] Exhibit M2.
Both parties have engaged in drug and alcohol counselling following separation. There is no issue that both parents are currently abstinent of illicit drugs. I accept that relapse is a risk for both parents. On the evidence available I do not regard this as a significant risk with respect to the father. The father has provided clean drug tests as requested for these proceedings. There is no evidence that he has abused illicit drugs since 2022.
The mother has been concerned that the father’s partner’s family deal drugs. I do not place any weight on this. It is not evidence; it is at its highest gossip. It is conceded that Ms K’s mother has had longstanding drug issues. She does not live with Ms K.
The mother’s last use of an illicit drug is mid-2023. She has been abstinent for more than a year. When she used in late 2022 it was in the highly stressful circumstances of a violent relationship. I accept that being highly stressed may cause the mother to relapse in the future. Her violent reaction to an argument with her sister occurred when coming down from use of the illicit drug. The children would be at risk in her care if the mother relapses.[23]
Can any risks for the children be ameliorated, and what arrangements would promote their safety?
[23] Family Law Act s 60CC(2)(a).
Risks in the mother’s household
The mother has relapsed twice since ceasing use of an illicit drug in 2021. I accept there is a risk that could occur in the future. If the mother is affected by substances, her capacity to provide for the needs of the children and ensure their safety is impacted. That would be the case for any time she is substance affected, including when coming down from use.[24]
[24] Family Law Act ss 60CC(2)(a), s 60CC(2)(d).
The mother has the support of her father and siblings. Her father has experience of her when affected by substances. I accept that he would intervene to protect the children if he was concerned about her drug use.
The mother’s evidence is that she has a good relationship with her previous counsellor, and has been provided with her direct telephone number to contact should she feel the need. Her last appointment was in mid-2024. I accept she has benefited from participating in drug and alcohol counselling.
The maternal grandfather seeks orders that she re-engage with her counsellor, until such time as the counsellor considers that no longer necessary. That is a sensible proposal given that the children will be returning shortly to her full time care. Given their good relationship, and the counsellor’s knowledge of the mother, this is additional support for her to prepare for the changes ahead.
The mother has taken steps to remove herself from associating with people who use drugs. She regards this as the reason for the relapse in mid-2023. She has started going to the gym, and is working on improving her mood and self esteem. She has been caring for N, assisting her father with the care of the three children, and dealing with the stress of litigation. I accept for these reasons that the orders proposed by the maternal grandfather with respect to hair follicle drug testing and the consequences were the mother to test positive, promote the children’s safety.[25]
[25] Family Law Act s 60CC(2)(a).
An ADVO is in place for the mother’s protection from Mr H until 2025. I accept that she has had no contact with him since their separation, and does not propose resuming a relationship.[26]
[26] Family Law Act ss 60CC(2)(a), 60CC(2A).
Since separating from Mr H the mother had a brief relationship which resulted in the birth of N in 2023. N’s father has not met her, and does not wish to be involved in her upbringing. There is no evidence of violence in that relationship.
The mother has had two intimate relationships with men who have been violent to her. She has attended counselling since mid-2023 through Victim’s Services. Her evidence is she has gained perspective from this, and is aware of ‘red flags’ in a potential partner. She is building her self esteem. She is now 24 years old, and has matured since she entered a relationship with the father at 15 years. I accept that these matters mitigate against the risk of her entering another violent relationship.
The mother’s sister Ms J was cross examined. I accept that she is not fearful of her sister, and the two of them share a close and supportive relationship. The ADVO in place between them was varied from a no contact order. The sisters spend time together, although Ms J no longer lives at her father’s home. She loves her nieces and nephews. She sometimes assists her father with changeovers with the children’s father. There is no risk to the children from the mother and Ms J being together with the children. The children benefit from a relationship with their aunt.
The only evidence otherwise of violence by the mother is the father’s complaint that the mother was aggressive to him during arguments, and hit him. I note the finding that the mother acted to defend herself from the father. She did so in the context of an ongoing violent relationship, as I have found above. I do not accept that the children are at risk from violent or aggressive behaviour by their mother.[27]
[27] Family Law Act s 60CC(2)(a).
I accept as proposed by the Independent Children’s Lawyer that the mother would benefit from attending parenting courses. The mother did not oppose such orders being made.
There is agreement that the children move to live with their mother from the maternal grandfather. I accept that is in their best interests. As outlined the mother has vulnerabilities. She has previously relapsed into drug use, entered another violent relationship, and lashed out at her sister when coming down off drugs. I accept that those risks are mitigated by the oversight of the maternal grandfather and the support of the maternal family, as well as the mother’s ongoing involvement in counselling, which has assisted her develop insight into her behaviour.[28] The orders sought by the maternal grandfather with respect to drug testing provide an additional level of safety for the children.
[28] Family Law Acts 60CC(2)(a).
Risks in the father’s household
The mother accepts that the father is not currently using an illicit drug, however, she was concerned about his alcohol consumption, and the impact that may have on his behaviour towards the children. The grandfather has seen footage of the father drinking on social media at times he cancelled visits with the children. Both the mother and maternal grandfather are concerned about the father’s driving with the children. The grandfather has seen footage of him driving dangerously on social media.
There is no evidence of the father driving dangerously nor evidence of him using alcohol to excess post separation. I regard that as a low risk for the children in the care of the father.
As outlined above, I accept that the father perpetrated family violence towards the mother, and that the children were aware, and at times exposed to the father’s violence.
The father has not undertaken a Men’s Behaviour Change Programme despite being aware of the need for that. He indicated at the time of the Child Impact Report interviews in early 2023 that he would do it, though he did not regard it as necessary. He recently joined a waiting list for that programme. He has completed the Triple P Parenting Course. He has engaged in drug and alcohol counselling, as required by an Intensive Corrections Order.
The Independent Children’s Lawyer seeks a restraint on the father’s time moving to include overnights until he has completed a Men’s Behaviour Change Programme. The Family Report writer characterised the father’s conduct as engaging in coercive control of the mother: using tactics to control and manipulate her such as physical violence, threats to kill her, himself and the children.[29] There were elements in the father’s conduct of socially isolating the mother identified by the Family Report writer.[30] The mother’s sister and father referred to seeing less of her during the relationship.
[29] Family Report, paragraphs 128, 129 and 130.
[30] Family Report, paragraph 128.
The father has not demonstrated insight into his violent conduct. He has persisted in denying that he was the perpetrator of family violence. The Family Report writer was concerned that a participant only gets out of courses what they put in. Given his lack of acknowledgment of an issue, the benefit to him of such a course may be limited.
There is no evidence that the father’s relationship with Ms K involves violence. The mother and maternal grandfather are concerned that may be the case. The parties are part of a reasonably small community. The father’s partner was previously a friend of the mother. The mother and maternal grandfather agreed they hear gossip about what various members of the father’s partner’s family are doing, and that is the basis for their concerns. I do not place weight on community gossip absent evidence.
There is a risk to the children in the father’s household from family violence being directed at them by their father. How that risk may be ameliorated, so that time with their father would promote their safety, is set out below.
What time should the father spend with the children and what, if any, conditions would promote their safety?
The mother was adamant about her position for no time between the children and the father. I accept she is sincere in her belief that no orders could be made which would ameliorate the risk posed to the children by their father. From her perspective she has no confidence his behaviour would be different from his behaviour towards her during the relationship. She was concerned that he would not be able to handle the children if they are upset, or tantrum, because he did not manage that when they were little. She has referred to him shaking Y as a baby to stop her screaming.
At the time of the Family Report interviews the mother, and her father, proposed the father’s time with the children move to alternate weekends, and holidays. There is no evidence of any behaviour by the father that has caused the change to the mother’s position.
The father commenced living with Ms K, her daughter who is three years, and her brother during 2023. Ms K was previously a friend of the mother. Her evidence is the father has a good relationship with her daughter. She is employed on a casual basis as an allied health worker. Her evidence is that she and the father have a positive relationship, without violence or abuse. She was clear that she would not tolerate drug use by the father around any of the children. She assists the father with care of the children, and has done so whilst they have lived together. She indicated that she is prepared to care for them if the father is required to work, although she has not cared for them alone previously. There was no real challenge to her evidence, which I accept.
There is risk to the children should their mother become significantly stressed. The Family Report writer indicated that relapse into drug use is often connected to stressors, so that the person turns to substance abuse to cope.[31]
[31] Family Law Act s 60CC(2)(a).
There is a risk that should the children spend significant time with their father, the mother may become so stressed she is unable to cope with parenting four children, some of whom have special needs. Her youngest child is one year old. The children are at ages where they are dependent on their carer to meet their needs. They require the mother to be able to parent as well as she can. She cannot do that if she is significantly stressed by them being in their father’s care.[32]
[32] Family Law Act s 60CC(2)(d).
The report writer gave evidence that children with neurodiversity issues such as X, are susceptible to learning behaviours from observation of those around them. If he sees emotional dysregulation, or poor problem-solving techniques, or violence, then he may learn to respond in the same way and mirror that behaviour. If he is exposed to derogatory comments about the mother in the father’s home, that could be destabilising for him. This may make his behaviour more difficult for the mother to manage. If he is exposed to the mother stressed and not coping, he may mirror that and be harder to parent.[33]
[33] Family Law Act s 60CC(2)(c).

The evidence of the parties supports that the children have coped well with changeovers on Saturdays, and not so well with changeovers on Sundays. The Family Report writer gave evidence that changeovers on consecutive days can be problematic for children. It is an emotional burden for young children to navigate moving between two households where they are aware their parents, and grandfather, are not in agreement with each other. To be required to do this two days in a row is very difficult emotionally for them. It does not leave them with an opportunity to emotionally regroup.
The Family Report writer referred to the children having developed and maintained a relationship with their father through regular time with him over the last two years. The mother seeks orders that relationship be effectively severed. The Family Report writer was concerned that professional intervention would be required to assist the children gain an understanding about that.
The father works from 6.00 am to 6.00 pm, on days according to a shifting roster. He is not guaranteed weekends off from his employment. His partner has not ever had the sole care of the three children. Problems in managing the behaviour of children can become exacerbated over longer periods of care. The children have not experienced overnights away from their mother and maternal grandfather since September 2023. The evidence is Z often wakes during the night and requires care. The maternal grandfather has sought assistance with respect to sleeping issues for her. X also requires care overnight from time to time.
The father and Independent Children’s Lawyer seek orders for gradually increasing time between the children and the father. The father seeks that it increase to Friday to Monday once he has completed a Men’s Behaviour Change Programme. He seeks time on special days.
The Independent Children’s Lawyer seeks that the father’s time move from day time twice each month, to Friday to Saturday twice each month once he has completed a Men’s Behaviour Change programme and Z has turned four years. The earliest this stage could be reached is in 2026. Then from Z turning six years in 2028 time move to Friday to Sunday. They seek time for the father on special days.
The father agrees to continue to engage with F Psychology, which will be supported by an order. Through his Counsel during submissions, the father did not oppose an order that the Independent Children’s Lawyer be permitted to provide to his psychologist copies of his criminal record, the mother’s affidavit filed for the purpose of this hearing and the Family Report. He also agrees to completing a Circle of Security and Parenting After Separation course. These are likely to assist the father build skills in managing the children.[34]
[34] Family Law Act s 60CC(2)(d).
Forecasting orders years ahead for any child is difficult. X has been diagnosed with ASD, ADHD and GDD. He has a variety of special needs. Assistance needed by X will vary over time. The impact of these conditions on his behaviour is not certain as he grows. There have been recommendations for assessments for Z with respect to ADHD and ASD. These have not yet occurred. What Z’s particular needs may be, and what impact any conditions may have on her behaviour, are not known.
All parties accept there is a need for caution in overnight, or extended time between the children and their father. This is clear from no party seeking holiday time with the father. In my view in weighing the benefits of overnight time I should be cautious. Many aspects of the future for these children is not known, particularly given Z’s age and that assessments have not yet occurred.
On the father and Independent Children’s Lawyer’s orders, the father, assisted by Ms K or if they are no longer in a relationship unknown people, will be caring overnight for three children two of whom have special needs. If the father remains in his current employment, and that is his evidence, he may be absent from the home from 6.00 am to 6.00 pm when the children are present in the home. This creates a great deal of uncertainty about the future proposed time arrangements.
The Family Report writer made clear his concerns about the future development of the children if there is no time with the father. He outlined the potential for short and long term issues. The children would lose their established relationship with him, which would be difficult for all of them to understand. In the short term this could cause them confusion. It is likely they would not be able to express verbally this confusion, and would do so through their behaviour and emotions. This could cause problems in managing their behaviour.
In the long-term a loss of relationship with their father could cause them difficulties with self‑esteem, and their own sense of self. This could lead to emotional and psychological distress. They may seek their father out during adolescence, which could involve risk to their safety depending on how that occurred. It is possible the children may blame themselves for not having a relationship with their father.
The problem for these children is amplified because they are Aboriginal children through both their mother and their father. If they have no contact with paternal family members they will likely have no understanding of their connection to the people of his heritage.[35]
[35] Family Law Act s 60CC(3).
I am concerned that the orders sought by the father and Independent Children for time would not promote the children’s safety. The father has previously engaged in violent behaviour in front of the children, and towards X. There is no evidence that suggests he has developed insight to change his conduct.
Although the father has been aware his conduct is an issue since the proceedings commenced, he has done nothing until recently to secure a place in a Men’s Behavioural Change Programme. He is now on a waiting list. The court is therefore not in a position to test any insight he may, or may not, develop by attending at the programme. Counsel for the father has submitted he attended a Triple P Parenting Course, and misunderstood the particular course required. I do not accept that over two years, he could not have recognised this issue and taken steps to address his conduct.
Whilst a Men’s Behavioural Change Programme may be helpful, there is no guarantee that the father will gain insight as a consequence of such a program. As the Family Report writer observed people get out of those programmes what they put in. On the evidence the father is not an eager participant in such a programme.
If the children are exposed to family violence by their father, including the kind of derogatory and demeaning remarks about their mother that he has made previously in text and verbally, that would not be in their interests. Exposure over an extended period of time, such as overnight, exacerbates that risk to the children. I accept that it is easier for the father to manage his conduct over shorter periods.
Should the children spend time with their father over a longer period there is a risk that the mother will become highly stressed, and not cope. Whilst I accept she has the support of her father and siblings, she needs to be functioning as well as she can to provide the care these children deserve. Z has not yet been assessed for special needs. Parenting this group of siblings requires significant capacity to meet all of their needs. If she is stressed, and worried about their safety, that would likely impede her capacity.[36] The children may pick up on that anxiety in her, which could affect their behaviour. This is so particularly for X, who may mirror her anxiety.
[36] Family Law Act s 60CC(2)(d).
It is unlikely that time with the father overnight would provide respite to the mother, as argued by the Independent Children’s Lawyer. She believes the children are at risk with their father. She will likely be stressed and anxious whilst they are with him overnight. Under the orders I propose she will have one weekend a month free, when the children are with her father. She is confident that he can care for the children, and that will I expect give her an opportunity for some respite.
In addition to their special needs, X has night terrors and Z has sleep issues. The father’s skills to manage all three children for overnight periods has not been tested for a long time. When last it was, he was not working shift work.
These risks to the children need to be balanced against the risk to them having no relationship with their father. The children’s ages at the time of the family report interviews means their views were not sought.[37] The maternal grandfather acknowledged that from his observation the children love their father, and enjoy spending time with him. This is supported by the Family Report writer’s observations. The risks are likely to be less apparent in the immediate, but constitute longer term risks to their sense of self, self-esteem, and self blame for not having a relationship with him as they grow into adolescence.[38]
[37] Family Law Act s 60CC(2)(b).
[38] Family Law Act s 60CC(2)(e).
To the extent that the maternal grandfather supported orders for day times to appease the father and avoid a possible violent reaction from him, I do not make the orders for time on that basis.
The children require arrangements to promote their safety, and the safety of their mother. In balancing what time arrangements with their father would best promote their safety, orders for short periods of time are most likely in my view to balance their competing needs. Daytimes permit a relationship with their father. Short periods of time with the father will be more manageable and less stressful for the mother, than extended or overnight time. Daytimes limit the children’s exposure to risk in the father’s household, by limiting the time they spend there. It requires less in terms of the father and his partner’s parenting capacity, and ability to manage the varied needs of the three children.
The father and Independent Children’s Lawyer seek orders in the first stage, for time to occur on two Saturdays each month determined by the father’s roster, and that the mother and grandfather be provided with his roster as soon as it is available. This would enable time to happen across two of three weekends, with one weekend with the maternal grandfather. The father seeks that time occur regardless of whether he is working, as Ms K will care for the children.
The maternal grandfather seeks that time occur on alternate weekends, unless varied by agreement. That means there is room for negotiation around arrangements, but otherwise it simply continues on alternate weekends. In my view there is merit in this approach. Time occurring in a predictable pattern is preferable for the children, and mother. I am satisfied that the orders sought by the maternal grandfather, for the father to spend time with the children one day per fortnight are in their best interests.
The father seeks time on special occasions. The Independent Children’s Lawyer supports this. I do not propose making those orders. The father will be seeing the children on a regular, predictable fortnightly basis. That means the children can celebrate birthdays and other special events like Christmas when they are with him, as time will be reasonably proximate to those events. The children will not have to manage additional changeovers.
What time should the maternal grandfather spend with the children?
The children have well-established relationships with their maternal grandfather. Particularly in the last two years, he has stepped in and provided their day-to-day care. He was involved in their lives prior to that. Both the maternal grandfather and mother intend his role in the children’s lives to continue.[39] The mother does not hold an unrestricted drivers licence, and he is involved regularly in transporting the children including to and from their father.
[39] Family Law Act s 60CC(2)(e).
Orders that provide for the children to spend a weekend each month with him ensure that if there are any difficulties in the relationship between the mother and her father in the future, the children’s relationship with him is safeguarded.[40] Regular time with him provides a significant safety net to the children were the mother to enter another relationship. He has been a source of stability for the children over the whole of their lives.
[40] Family Law Act s 60CC(2)(e).
I do not regard orders sought by the Independent Children’s Lawyer for extended time during the school holidays as necessary. The maternal grandfather does not seek it. The order for one weekend a month will continue regardless of whether it is holidays or school terms.
The maternal grandfather is connected to his Aboriginal culture. He has connected the children to that culture through involving them in formal activities through the school. X was learning a cultural activity at his instigation. His grandfather proposes continuing to support all the children in engaging with their maternal culture.[41]
[41] Family Law Act s 60CC(3).
The children’s maternal aunt Ms R is an artist. She teaches the children about their culture through art and painting.[42] She currently lives with the maternal grandfather, and the children. They have close relationships with her. She has a strong, supportive relationship with the mother. The children spending regular overnight time with the maternal grandfather will ensure they maintain their connection with her.
[42] Family Law Act s 60CC(3).
What orders will promote the children’s connection to their culture?
The children are part of one Aboriginal people through their maternal family, and another Aboriginal people through their paternal family. The children live on the land of one people, and the land of the other people is easily accessible.
The maternal family live their culture. The maternal grandfather was clear about the importance for the children in feeling connected to and proud of their culture. The children’s aunt Ms R volunteers with the local Aboriginal Land Council. Their aunt also involves the children in her artwork. The children are engaged through school in formal activities, such as dance. The school celebrates important cultural days.
Orders that have the children living with their mother, and spending regular time with their grandfather, provides the children with the support, opportunity and encouragement to enjoy their Aboriginal culture. None of the maternal family have the language. The children will have the opportunity to be on country with their maternal family and experience community, culture and language.[43]
[43] Family Law Act s 60CC(3).
The maternal family’s evidence is the father is disconnected from his culture. The maternal grandfather has been concerned that the father does not encourage the children’s connection to their culture. The father submits he is proud of his Aboriginal heritage. By spending regular daytime periods with him they will have the opportunity to meet other paternal family members who may provide them with that connection. They live on their paternal country and have the opportunity to connect with their community, culture, and language. This is supported and encouraged by the maternal family.[44]
[44] Family Law Act s 60CC(3).
Changeovers
The maternal grandfather has been doing changeovers with the father. The interim orders provided for that to occur to and from his home. He is at times assisted by Ms J. It benefits the children that the mother is not involved in changeovers, as there would be a risk of conflict were both parents present. Even if no conflict occurred, it would be stressful for the children given I accept they are all aware that their mother and father do not get on. All parties agree he should continue to do changeovers.
The maternal grandfather resides in Town C, and the father in Town G.The Independent Children’s Lawyer and father seek that changeovers occur at a McDonalds at Town C. The maternal grandfather seeks that changeover at the commencement of time occur at a petrol station at Town D, which is closer to Town G and at his home at the conclusion of time.
There was no particular evidence about benefit to the children of changeover at either of those locations. I propose making the orders sought by the maternal grandfather because it makes changeover closer to the father’s home at the commencement of time. They can vary the location if they agree in writing.
Injunctions
The mother seeks injunctions pursuant to s 68B of the Act against the father for herself and the children. I am making orders for time, and in those circumstances the restraints sought are not appropriate. Where the parties have generally lived reasonably proximate to each other, I am concerned that making the orders in the terms sought by the mother would not be workable. It is sought, for example, that the father be restrained from approaching the mother’s or children’s place of residence. There is no distance included, such as would usually be referred to in an ADVO. The NSW Police have acted to assist and protect the mother through ADVOs previously. I accept they would do so again if required.
The other parties all sought a variety of injunctions under s 68B of the Act. Restraints sought about who may be in the house overnight with the children are restraints I do not propose making. I do not propose making orders for things like Working with Children Checks for a new partner or “romantic interest” to stay overnight with the children, nor not allowing other people to stay overnight. By making the orders about where the children live, and shared decision making, I am endorsing the competence of the mother and maternal grandfather to make sensible decisions for the children. Further there is no evidence about whether an individual can apply for such a check, nor how, nor what it may cost. This proposal appears likely to lead to further dispute rather than less.
The restraints sought by the maternal grandfather encompass many of those sought by the Independent Children’s Lawyer, mother and father. I propose making those orders restraining conduct because I accept that they are protective of the children and likely to promote the children’s interests.
Ancillary matters
The maternal grandfather seeks orders that both parents continue drug testing, triggered by a request from him, for the next 12 months. I propose making those orders to ensure that if either parent relapses the children’s safety is assured. The orders will permit the maternal grandfather to request drug testing on two occasions. Hair follicle tests usually cover a period of about three months prior to the test. The testing occurring on two random occasions is sufficient to ensure that the parents are drug free for the next 12 months. Should the mother relapse, any time with the children will be supervised by the maternal grandfather and the children will live with the grandfather. Should the father relapse his time will move to supervised. I note the evidence of the Family Report writer, which accords with common experience, was that the more time that passes since last use, the less the risk of relapse.
All parties agree that the father should complete a Men’s Behavioural Change Programme. The father has placed himself on a waiting list. The maternal grandfather puts a time frame by which the father should complete that course: 31 December 2024. There is no evidence of when the course he is wait listed for will start or finish. I propose ordering that the father provide the mother, and maternal grandfather, with a certificate of completion so that they are aware he has completed the course. It is beneficial for the children that he complete the course, and that the other parties know he has done what he agreed to do.

Orders were sought by the maternal grandfather that the father not physically discipline the children. I propose making an order than no party engage in physical discipline of the children. The children’s experiences to date make it important that all parties utilise discipline that does not involve physical chastisement.
The maternal grandfather seeks information be provided to him and the mother, should the father be charged with a criminal offence, or traffic offences involving drug or alcohol. Both parents have had issues with respect to violence and drugs, as is clear from these reasons. I propose making the order that each parent advise the maternal grandfather and other parent should they be charged with any offence, because there is benefit for the children in transparency around these issues with the adults. It may affect who can drive with the children, or point to a risk for the children.
The mother seeks an order for a variety of authorities to have a copy of these orders. It is helpful for the children that their school, medical and allied health practitioners have a copy of these orders. There was no evidence led, nor submission made, as to why it would be helpful for Medicare, Centrelink, the Australian Passport Office, nor any group managing activities for the children to have a copy of the orders. For those reasons I do not propose making the order as broadly as the mother seeks.
The hearing did not traverse issues about overseas travel or passports for the children. There is no evidence of any proposed travel, so that was not surprising. It was not agitated in submissions. For those reasons I do not propose making the orders sought by the mother.
I propose making orders that the mother and maternal grandfather provide the father with the identity of the children’s treating medical practitioners, and allied health professionals, and any counsellor. I will authorise the children’s treating medical practitioners, allied health practitioners, and any counsellors, to provide information when requested to the father that would ordinarily be provided to parents. It is better for him to hear information directly from the treating practitioner as it is then less likely to be a source of dispute, or stress for the mother.
Similarly orders will authorise the father to obtain information about the children’s education from the children’s school, including being able to access any online portal that the school may maintain.
The Independent Children’s Lawyer proposed that the mother and maternal grandfather arrange a paediatric assessment for all the children, by seeking a referral for their general practitioner within seven days of the orders. The Independent Children’s Lawyer indicated the orders were agreed, and that the father agreed to the meet the costs. Counsel for the mother and maternal grandmother did not dispute the position of the Independent Children’s Lawyer during their submissions. I accept that all parties agree that an up to date paediatric assessment would be useful for all the children. The evidence suggests that Z has been scheduled for such an assessment, which may have already taken place. I accept that orders should not require her to do that twice. I will make the orders proposed by the Independent Children’s Lawyer, noting that if an assessment is current a further referral need not be sought from the general practitioner.
I propose making an order for the parties, including the maternal grandfather to communicate through AppClose, as proposed by the Independent Children’s Lawyer. The maternal grandfather holds decision making authority for the children and should be included in the passing of information. I appreciate he has issues with literacy, however the evidence did not go so far as to suggest he is unable to text or respond to texts. For the parents, it provides a safe way for them to communicate any necessary information about the children.
I have made an order that the Independent Children’s Lawyer remain involved for a period of three months. This was canvassed with the parties during submissions and there were no submissions made.
CONCLUSION
The orders give the children the benefit of an ongoing relationship with their father, in a manner that promotes their safety. The orders are for time that is short and predictable. This will assist the mother and maternal grandfather in managing the time. The maternal grandfather has provided significant stability to the children, and these orders ensure his role will continue.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle.
Associate:
Dated: 22 October 2024

File number(s):	SYC 9126 of 2022
Judgment of:	BOYLE J
Date of judgment:	22 October 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the children live with the maternal grandfather and spend time with the parents – Where the parties agree that the children should live with the mother and she should have joint decision making authority with the maternal grandfather – Where there is a dispute as to what time the father spends with the children – Where there are allegations of serious family violence including coercive control made by the mother against the father - Consideration of what orders will best promote the children’s safety – Orders made for the father to spend time with the children one day per fortnight – Orders made for the maternal grandfather to spend time with the children – Where the children are of Aboriginal heritage – Consideration of what orders will ensure their connection to their culture.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited:	Isles & Nelissen (2022) FLC 94-042 M v M (1988) 166 CLR 69; [1988] HCA 68
Division:	Division 1 First Instance
Number of paragraphs:	186
Date of hearing:	26-28 August 2024
Place:	Sydney
Counsel for the Applicant:	Ms Soto
Solicitor for the Applicant:	Women’s Legal Service NSW
Counsel for the First Respondent:	Mr Moshides
Solicitor for the First Respondent:	Ann Legal
Counsel for the Second Respondent:	Ms Meares
Solicitor for the Second Respondent:	The Family Law Co
Counsel for the Independent Children's Lawyer:	Ms Beckett
Solicitor for the Independent Children's Lawyer:	Joplin Lawyers

SYC 9126 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ZEMANOVA Applicant
AND:	MR HOEFLER First Respondent MR WARD Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BOYLE J
DATE OF ORDER:	22 OCTOBER 2024