Campbell & Fraser [2025] FedCFamC2F 620 (12 May 2025)

1. That each of the parties register to use the AppClose parenting application within seven (7) days
2. That until further or other order:

(a) each party forthwith advise the other by telephone call in the event of any illness or accident suffered by the said children requiring hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which the children or either of them has been admitted or treated in accordance with the facility's normal policy.

(b) the parties communicate with each other only using AppClose about all matters relating to the welfare, education and development of the children or either of them;

(c) the parties and each of them be restrained and injunctions be granted restraining each of them from:

(i) criticising or denigrating the other party or the other party's family in the presence of or within hearing of the children, or allowing any other person to do so;

(ii) discussing these proceedings in the presence of or within hearing of the children, or allowing any other person to do so;

(iii) exposing the children to any form of violence including but not limited to videogames, movies, television or allowing any other person to do so; and

(iv) publishing anything about the other party or these proceedings on social media.

1. Pursuant to s 68L(2) of the Family Law Act 1975, the Children be independently represented AND IT IS REQUESTED that Legal Services Commission of South Australia arrange such independent representation and:

(a) forthwith upon appointment by the Commission or otherwise, the Independent Children's Lawyer file a notice of address for service;

(b) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children's Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;

(c) the Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

(d) the Independent Children's Lawyer prepare a minute of the orders they will recommend be made as final orders.

1. Leave is granted to the Independent Children's Lawyer to inspect and copy:

(a) subpoena material produced under subpoena to the date of this Order to this Honourable Court;

(b) material produced by or behalf of any Minister of any government department or police force of any State or the Commonwealth in response to the notification made under s 67ZBD; and

(c) documents produced by or behalf of any Minister of any government department or police force of any State or the Commonwealth in response to the order to provide documents or information pursuant to s 67ZBE Order.

1. The said Commission is granted access to the documents filed in this matter via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of documents available on that portal.
2. The parties forthwith provide to the Independent Children's Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the child or children may have seen or attended in the last twelve (12) months and provide to the Independent Children's Lawyer authorities for the release of information concerning themselves and the children from any such person or agency as the Independent Children's Lawyer shall request from time to time.
3. The Independent Children's Lawyer use his or her or their best endeavours to be in a position to make submissions to the Court on the adjourned date or upon hearing thereof.
4. That each party do enrol and complete the following parenting courses if they have not already do so:

(a) Circle of Security; and

(b) Kids are First.

1. That each party do file and serve an affidavit of enrolment in and completion of each course.

1. Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X, born in 2021 and Y, born in 2023 are directed to attend with a Court Child Expert (practising under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
2. Part 1 of the event will occur by video, using Microsoft Teams, on 10 July 2025 with:

(a) the Applicant to attend at 9.00am; and

(b) the Respondent to attend at 10.30am

1. Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
2. Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide SA 5000 or such other location as the Court Child Expert shall nominate on the morning of 11 July 2025. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
3. Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4. The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
5. Not later than 4.00 pm on 19 May 2025 the parties must provide their contact telephone numbers and email addresses to ...@....
6. Pursuant to these orders, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:

(a) any agreement reached between the parties;

(b) identification of key issues requiring resolution;

(c) any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the court should place on those views;

(d) the impact of the issues/dispute before the Court on the children;

(e) the extent and nature of the children's attachment to each parent as at 24 July 2024 and presently; and/or

(f) any other matters that the Court Child Expert considers important to the welfare or best interests of the children.

1. Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
2. The Court Child Expert will be at liberty to inspect any material filed by the parties and the following:

(a) any material that has been both:

(i) produced to the Court pursuant to any order made pursuant to s 67ZBE and is not marked confidential; and

(ii) that has by order been made available to the parties and/or their legal representatives for inspection and/or copying and is not marked confidential; and

(b) any judgments, orders, reports or other material produced by the Court in the matter.

1. That pursuant to Rule 4.05 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 the parties and their legal representatives attend a Family Dispute Resolution at a date to be advised by the Independent Children's Lawyer.

1. That the mother do file and serve any further Application in a Proceeding for interim parenting orders on or before 4pm 17 July 2025.
2. That the respondent father do file and serve any Response to the said Application in a Proceeding on or before 24 July 2025.
3. That any Application or Response filed pursuant to orders 23 and 24 be made returnable before Judge McGinn at a date to be fixed.
4. That otherwise all interim proceedings stand dismissed.

1. That on or before 4pm on 11 August 2025 each of the parties and the Independent Children's Lawyer (if any) shall file and serve on each other party and the Independent Children's Lawyer (if any) a callover document comprising in the following order and under the following headings:

(a) where a party is legally represented, a statement of the party's case not exceeding 150 words;

(b) a chronology of events by date, time and place and happening that are agreed to have occurred for the purpose of these proceedings;

(c) a chronology of events by date, time and place and happening and the party asserting them to have occurred that are disputed for the purpose of these proceedings;

(d) a list of any orders agreed by the parties;

(e) a minute of the specific orders to be sought at trial;

(f) a list of any further subpoena which a party wishes to issue, identifying the name of the person to be subpoenaed, type of subpoena and if leave to issue the subpoena is to be sought;

(g) list of witnesses to be relied upon at trial;

(h) the proposed length of cross-examination for each of the other parties and Independent Children's Lawyer's witnesses and any Family Assessment Report writer (expressed for each individual witness and not as a total);

(i) estimated length of trial;

(j) costs notice complying with Rule 12.06;

(k) whether any order is to be sought pursuant to s 102NA and particulars justifying such an order or how quickly an application for such an order is to be filed; and

(l) confirming:

(i) an undertaking as to disclosure pursuant to Rule 6.02 has been filed on behalf of the party;

(ii) a Certificate of Readiness pursuant to clause 5.53 of the Central Practice Directions has been filed on behalf of a party;

(iii) that family dispute resolution procedures have been undertaken; and

(iv) advising whether a Family Assessment Report is required.

1. That this matter otherwise stands adjourned to 18 August 2025 at 9:30am for further consideration including the making of trial directions.

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).

These reasons have been corrected from the transcript. Topic headings have been inserted, and grammatical errors have been corrected. In addition, amendments have been made to make the orally delivered reasons clear and easy to read.

1. Before the Court are the parties' interim applications under the Family Law Act 1975 ("the Act") for parenting orders in relation to their children X aged four years and Y aged two years.
2. The matter by order of 26 March 2025 was listed for mention before the Court on 12 May 2025. Given the circumstances of the children in this matter as disclosed in the affidavit material filed to date, the Court has determined that it should hear and determine the interim parenting applications.
3. These are short reasons pursuant to s69ZL of the Act in respect of those applications.

1. The overarching purpose of the Act, the Act and this Court's Rules[1] is to facilitate the just resolution of disputes in a way that ensures the safety of families and children and promotes the best interests of the children, according to law and as quickly, inexpensively and efficiently as possible[2].
2. The parties and their legal representatives (if any) are duty bound to conduct proceedings in a manner consistent with this purpose.
3. The Court considers all submissions but does not need to address every submission made on behalf of a party[3].
4. An interim hearing is curtailed in that it proceeds on the affidavits filed by each party and what is tendered into evidence. Such evidence is yet to be tested. There is no cross-examination of parties or witnesses about what they allege in their affidavits, and so where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court of the Family Court of Australia observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:

In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of (one parties) submissions... judges are not required to treat all untested evidence as bearing the same weight.

1. In Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 the Full Court of the Family Court of Australia on the same issue observed at 80,331:

...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

1. Similar remarks have been made at the appellate level in Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348: [4]

The Court may make such parenting order[5] as it considers proper[6]. Section 64B sets out what a parenting order is. The responsibility to make parenting orders remains that of a court exercising jurisdiction and power under the Act.[7]

1. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration[8].
2. The Act specifies the non-hierarchical criteria which must be considered in arriving at a conclusion as to what is in the child's best interests: s 60CC(2). The matters to be considered include:

(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[9] 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; and

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

1. In contemplating these matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child's family.
2. Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.

1. The applicant mother commenced proceedings by filing an Initiating Application on 11 February 2025.
2. The applicant mother seeks interim orders that: -

(a) the children be delivered up to her;

(b) the children live with her;

(c) the children spend time with their father each alternate weekend from 9 am Saturday to 5 pm Sunday and each Wednesday in the intervening week 4 pm to 6:30pm;

(d) that handovers occur at the City E police station;

(e) orders about how the parties communicate; and

(f) orders with injunction relating to denigration, discussing proceedings, exposing the children to violence, publication, and the consumption of alcohol and illicit substances.

1. The mother also sought other interim orders relating to the parties giving notice to each other should they intend to travel with the children for more than 200 km from City E, the provision of information from the Department for Child Protection (South Australia) ("DCP") and the South Australian police, the provision of a child impact report and the appointment of an Independent Children's Lawyer.
2. The mother:

(a) lives in City E;

(b) is engaged in home duties;

(c) is 32 years of age;

(d) has two children by previous relationship, C, now aged nine years and B, aged seven years;

(e) has completed a parenting course in September 2024; and

(f) has a medication regime for depression and anxiety and has been diagnosed with a mild intellectual disability of an unspecified nature and with unspecified indications.

1. The respondent father seeks interim orders by his Response filed 11 April 2024 that:

(a) the children X and Y remain in his care;

(b) the children live with him; and

(c) the parties have shared parental responsibility for the long-term issues in relation to the children.

1. The father seeks, in common with the mother, certain interim orders as to:

(a) communication; and

(b) injunctions about denigration, discussing the proceedings with the children, exposing the children to violence and non-publication on social media.

1. The father by his Notice of Risk dated 9 April 2025 also seeks orders as to the preparation of a child impact report and the independent representation of the children.
2. That Notice of Risk also records as "Other Concerns" that the children have been exposed to a person that has been sexually inappropriate to other minors and that the father has concerns that X has been sexually abused by the mother's child B as he is showing inappropriate sexualised behaviours not in line with his age and development. There is no evidence in the supporting affidavit about this aspect of X's alleged, concerning behaviour.
3. The father:

(a) lives in City E;

(b) from July 2024, is engaged in home duties;

(c) worked during the course of the parties' relationship and following their separation until July 2024;

(d) is 37 years of age;

(e) has no driver's licence and has not held one for a number of years;

(f) until July 2024 (at least) was a consistent and habitual consumer of marijuana;

(g) has not permitted the children X and Y to see their mother or their siblings since July 2024; and

(h) has no children other than X and Y.

1. The father was served with the mother's application on 20 February 2025. This was after the date for service of 12 February 2025 specified in court orders of 11 February 2025.
2. Each party has filed an affidavit in support of their application.
3. The father has, impermissibly filed a second affidavit on 7 May 2025 which largely repeats what is said in his first affidavit of 11 April 2025. That latter affidavit will not be uplifted as what appear to be amendments and omissions from the first affidavit may turn out to have some forensic purpose in due course.
4. The Court has made orders on 11 and 26 February 2025 as to the provision of information by Department for Child Protection and the South Australian police.
5. Orders for the release of that information for inspection by the parties were made 17 March 2025.
6. The material produced has not been tendered by either party into evidence. The Court has had regard to material from South Australian Police which does not show the father has had a licence disqualification on account of drink driving.
7. Material from South Australian Police produced to the Court in early 2025 will be tendered into evidence as Exhibit 1.
8. The Department for Child Protection material was referred to on behalf of the mother in her Counsel's learned submissions but what is to be made of that material is a matter for another time.
9. On 11 February 2025 the Court ordered that the respondent do file responding material by 12 February 2025 which time was extended by order of 26 March 2025 to 9 April 2025. That latter order was made when the respondent appeared before the Court in person on 26 March 2025 and stipulated that the responding affidavit be no longer than ten (10) pages and have no more than five (5) annexures.
10. The parties cohabited from January 2020 until they separated on 26 January 2023.
11. As to the child X:

(a) he is four years of age; and

(b) attends child-care.

(a) he is two years of age; and

(b) attends child-care.

1. As noted above the mother has two children by previous relationship C and B.
2. C and B:

(a) are, of course, X and Y's siblings;

(b) spend time with both their mother and father on a week about basis;

(c) on that basis, were members of the parties' and X and Y's household; and

(d) were the subject of DCP investigations for a period of between 10 and 12 months from late 2020 when concerns were raised as to whether they had been subjected to sexual abuse in the care of their father. After investigating the matter, the Department for Child Protection determined that the children C and B could resume being in their father's care.

1. Following the parties' separation in January 2023, the mother says:

(a) the father spent "little time" with X and Y;[10]

(b) the father retained the children in his care on 24 July 2024;

(c) between about August 2024 and February 2025 the mother had "limited contact" with X and Y;[11] and

(d) the mother saw the children on 21 December 2024 at a playground through arrangement between the parties with the paternal grandmother present closely observing the mother and the children.

1. The father appears to have retained the children in his care in July 2024 on account of:[12]

(a) Y having headlice that was left untreated resulting in scabs and itching;

(b) Y being non-verbal;

(c) X being considered by a general practitioner as underweight;

(d) Y not having received any scheduled immunisations since 4 months old;

(e) X food hoarding in his father's care;

(f) X not wanting to sleep in a room by himself when first in the father's care as he reported a man turned up at his house resulting in the police attending; and

(g) the boys displaying what the father describes as "separation anxiety" in him leaving their presence.

1. The father has changed the children's childcare arrangements for his convenience.[13]
2. The father deposes to X not speaking of his mother except to refer to her as "Ms Campbell" on unspecified occasions.[14]
3. The Respondent father's affidavit, despite direction from the Court, is overlength without explanation. This lack of compliance with Court Rules will be overlooked on this occasion as the affidavit is overlength but pages 1 and 2 contain mere formalities and/or surplusage and page 13 contains no relevant information. No permission would be granted for an overlength affidavit on the basis that the respondent is presently acting on his own behalf.
4. The respondent's affidavit is opinionated and endeavours, but fails in many respects, to give evidence about relevant matters and discloses him to be motivated by ill will towards the mother and less than ideally child focussed.
5. The mother's affidavit:

(a) gives generic evidence of the father from April 2021 discounting the child X's and later Y's relationship with their sister siblings;

(b) she maintained, along with the father, a separation of some type between boys and girls in the parties' household from 2022;

(c) alleges family violence by the respondent father towards herself in that:

(i) in about February 2022 the father put his hands around her throat and pushed her against the open car at a time when the children were present;

(ii) the respondent mother was expected to pay for rent, utilities and groceries from Centrelink income during the course of the relationship and purchase alcohol and cigarettes for the father;

(iii) the father registered two vehicles in the mothers name;

(iv) the father lost pay on one occasion playing the "pokies";

(v) the father was verbally abusive towards the mother in the presence of children;

(vi) the father told the mother on occasion she was a "bad mum" on account of her having terminated an earlier pregnancy;

(vii) the father's "pressure" of the mother to terminate her pregnancy with Y;

(viii) the father swore at B in or about January 2024;

(ix) the father drank three cans of alcoholic drink each night on average;

(x) the father smoked marijuana most nights;

(xi) in or about October 2021 the father refused to follow the mother's request to call an ambulance in relation to breathing difficulties X was then experiencing; and

(xii) the father and his mother "put down" the mother in unspecified communication.

1. The applicant mother says this behaviour occurred in the presence of the children and that in around 2022 the father came up close to C and yelled in her face. The father's affidavit evidence is to say that he used a "stern tone of voice" after 4 to 5 requests being made by him for C, then aged about 6, to desist after pushing X backwards at least twice.[15]
2. The respondent father broadly denies these allegations and attributes his behaviour as being variously the result of the mother's infidelity and the child B and C being unruly and violent and the mother at least on occasion of not being able to cope with her daughters' behaviour and of those children being "alienated" from him.
3. His affidavit material is redolent of being self-satisfied and self-justified in his approach to his parenting of all the children of their household and, in particular the children X and Y.
4. It might be viewed as ironic that the father proclaims that he recognises the mother as having "alienated" her daughters from him yet does not recognise nor concede that he has led to the children X and Y being estranged from their mother to the point of X rarely mentioning his mother and then only by her first name as amounting to the same thing.
5. The father sets forth in his affidavit that the mother has demonstrated shortcomings in her parenting capacity in that:

(a) the mother did not adhere to a prescribed regime for taking medication;[16]

(b) a lack of supervision of her daughters when they were about X and Y;[17]

(c) in or about February 2022 the mother saying she kicked a toy through a window smashing it because she was angry with her daughters;[18]

(d) the mother maintained a failing relationship with the respondent and falling pregnant with Y;[19]

(e) the mother drank alcohol whilst breastfeeding Y;[20]

(f) the mother kicked C out of anger on a number of occasions;[21]

(g) the mother has threatened suicide and self-harm in front of the children in the past;[22] and

(h) in what appears to be some occasions during 2024 the father observing Y laying unattended in a soiled nappy in the care of B and C.[23]

1. The father's affidavit evidence is consistent with the mother having been the primary carer of the children until July 2024 and that his role as the primary carer has only been developed since that time.
2. As stated above the Court cannot make findings of fact which are disputed.
3. However, it is apparent in the circumstances of this matter that the children, X and Y's, relationship with and attachment to their mother has been severely disrupted by the father's actions in retaining the children in his care since July 2024 and the mother's apparent inability to redress his retention of the children.
4. In terms of the criteria set out in section 60CC of the Act it is at this stage apparent on all the evidence that:

(a) the parties' coparenting relationship and relationship generally is poor and, on the father's part, informed by recriminations on account of what he perceives as the mother's infidelity. The allegations of abusive conduct by one party towards the other remain to be tested. Be that as it may, it is apparent that by minimising the contact that the parties have with each other and constraining the manner by which they communicate with each other, that the safety of each of the parties and the children X and Y, as well as C and B, can be placed at minimal risk of being unreasonably jeopardised;

(b) the Court considers that there is a risk, at least initially, that unless supervised that the behaviour of the children C and B (and particularly the former) may jeopardise the mother's capacity to intervene in respect of any behaviour of either of those children that may distress X or Y or that may distress the mother;

(c) the views of the children are not in evidence and would, given their ages, attract little weight. However, the father deposes to X rarely referring to his mother by her first name suggesting a view that X and presumably Y are losing their proper attachment to their mother and consequently their sister siblings. This could have well led to the children X and Y having difficulty separating from their father and sleeping difficulties out of a reaction of having lost their relationship with their primary caregiver to that point (their mother);

(d) the developmental, psychological, emotional and cultural needs are best met by the children having both of their parents in their lives. The father's exclusion of the mother from the children's lives on account of a lice infestation, the children's alleged lack of weight and speech appears to be a disproportionate response[24]- it would have been far preferable for the father to seek to coopt the mother in taking steps or he taking these steps to address the difficulties that the children then faced by making or undertaking or attempting to make or undertake the necessary remedial appointments rather than removing the children from their mother's care;

(e) apart from the father's lack of capacity to facilitate the children's relationship with their mother, the present state of the evidence indicates that, unlike his demonstrated limited capacity prior to July 2024, the father has been able to meet the children's needs. The mother has undertaken a parenting course and has prior to July 2024 undertaken the role of primary carer of the children although not without seeming incidences of difficulty arising out of the behaviour of her daughters and her response to those behaviours;

(f) there is benefit in the children having a relationship with both of their parents and their sisters and extended family provided that the children are not exposed to the parties' demonstrations of anger and/or resentment towards the children or each other;

(g) the delay in the mother spending regular time with the children means that they have to some extent become unfamiliar with her and that the reintroduction of her time with them needs to be graduated. The evidence suggests that the mother may experience difficulties in managing the children's interaction with their sisters from time to time or her own emotions in response to one or other of her daughter's behaviour;

(h) the delay also indicates that the children should not at this time, at least, be subjected to another wholesale change in their living arrangements, it being some 9 months since the change in their living arrangements. The Court would not at this stage be minded to change the children's living arrangements away from their father until more is learnt of them;

(i) the allegations of family violence in this matter are of concern. The allegations of family violence remain at this stage unproven. The Court bears in mind what was said by Austin and Williams JJ in Pickford & Pickford [2024] FedCFamC1A 249 at [79 -80]:

79. However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy [2023] FedCFamC1A 194; (2023) 68 Fam LR 55). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis [2024] FedCFamC1A 141; (2024) FLC 94-204 at [13]-[19]).

80. It is also important to acknowledge how the purpose of litigation under Pt VII of the Act is to determine orders which will most ably serve children's best interests (s 60CA and s 65AA). Keeping children and their carers safe into the future is the ideal, which objective should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents, nor to make punitive orders against the parties who may be found to have perpetrated family violence.

(j) there are no relevant family violence orders in this matter.

1. This Court would also, with the greatest respect, paraphrase what their Honours said at [79] of the same judgment that in making the present interim decision that nothing in these reasons is to be construed as trivialising family violence and that it is in the best interests of children that children and their carers are kept safe from exposure to family violence.
2. In all of the circumstances the Court considers that on interim basis that the children X and Y remain living with their father and spend time with their mother both on a supervised basis at a children's contact centre and for periods of time away from that centre in those weeks when the mother does not have the care of her daughters.
3. There is a need in this matter for the mother's relationship to be gradually rebuilt and the Court considers that this is best done not by there being a wholesale change in living arrangements at this stage but rather by the mother spending time with the children for brief periods and frequently.
4. Some of that time should occur at the local contact centre not only out of a concern for the safety of the children in their mother's care but also so that through the report from such centre that a clearer sense can be obtained as to the progress that might need to occur in relation to children's interaction with their mother before more extensive time, including overnight time, occurs.
5. This is a matter in which an Independent Children's Lawyer should be appointed, in accordance with each parties' application, to best reflect the best interests of the X and Y. The need for an Independent Children's Lawyer arises from:

(a) father is presently unrepresented and his evidence, such as it is, is beset with opinions and polemic and a limited amount of relevant evidence;

(b) the children in this matter are at risk of being "alienated" from a parent;

(c) there may be issues of significant psychological illness or personality disorder;

(d) there is a risk of division of siblings;

(e) there are allegations of abuse and violence; and

(f) there is required the marshalling of evidence from sources other than from the parties themselves.

1. Each party should be informed and kept informed of those matters that relate to the children's day to day and week to week attendances at childcare and at doctors and other health professionals.
2. Each of the parties seek as final orders that there be orders for joint parental responsibility. On an interim basis and in the best interests of the children there should be an order allocating joint responsibility for decisions relating to the children's long-term issues.
3. Given the allegations as to alcohol consumption and illicit substance abuse there should be orders precluding the parties from consuming alcohol or other illicit substance whilst the children are in their care and there should be hair follicle drug screen testing initially and then as requested by the Independent Children's Lawyer. The father's affidavit evidence, such as it is in relation to his consumption of alcohol is merely argumentative. He does not join issue with the mother's allegation that he has lost his driver's licence for drink driving. However, there is no evidence of a conviction for any such an offence nor of licence suspension for that reason - indeed material produced to the Court by the South Australia Police is to the contrary.
4. The evidence suggests that each party has demonstrated in the past at least a limited parenting capacity and a lack of insight into the children's needs. The parties would benefit from completing parenting courses if only in an endeavour to improve their insight as to the demands of parenting. The mother's affidavit material does not identify what course she has so completed.
5. The Court would like to move this matter to trial as soon as possible. The parties should be prepared at the August sittings of this Court to be able to advise the Court that, apart from the preparation of any family assessment report (if that be necessary), that the matter is ready to proceed to trial.
6. On an interim basis and until the Independent Children's Lawyer is "active" and further information is before the Court, orders should be made in the best interests of X and Y as appear at the beginning of these orders.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn.

[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

[2] Section 95 Family Law Act 1975 (Cth)

[3] Baghti & Baghti and Ors [2015] FamCAFC 71, [64]; Chin & Bao [2025] FedCFAmC1A 9, [36]

[5] Section 64B of the Act

[6] Subsection 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein

[7] Lainhart & Ellinson [2023] FedCFamC1A 200; [2023] FLC 94-166, [26 -29]

[8] Sections 60CA and 65AA

[9] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter

[10] Mother's affidavit 5 February 2025, [50]; Father's affidavit 11 April 2025, [37]

[11] Mother's affidavit 5 February 2025, [52]

[12] Father's affidavit 11 April 2025, [41], [44], [45]

[13] Father's affidavit 11 April 2025, [50]

[14] Mother's affidavit 11 April 2025, [50]

[15] father's affidavit 11 April 2025, [17]

[16] Respondent father's affidavit 11 April 2025, [7], [31]

[17] Respondent father's affidavit 11 April 2025, [13], [19]

[18] Respondent father's affidavit 11 April 2025, [21]

[19] Respondent father's affidavit 11 April 2025, [26]

[20] Respondent father's affidavit 11 April 2025, [30]

[21] Respondent father's affidavit 11 April 2025, [31]

[22] Respondent father's affidavit 11 April 2025, [35]

[23] Respondent father's affidavit 11 April 2025, square bracket 35

[24] As for the lice infestation the comments of the Court in Campbell v Bingham [2010] FMCAfam 52, [185 -186] appear apposite.