Carlier & Botrel [2025] FedCFamC2F 398 (28 March 2025)

(a) Advise the Applicant Father, MR CARLIER ('the Father'), of their proposal, allowing at least 28 days before a decision has to be made (except in the case of a health emergency); and

(b) When the Father offers a timely response, consider it; and

(c) Notify the Father of their decision.

1. The children spend time and communicate with the Father during all school terms as follows:

(a) By way of phone calls or FaceTime as agreed between the parties, and failing agreement, each Wednesday between 5.00pm and 5.30pm with the Father to initiate the phone call and the Grandparents to do all things reasonably necessary to facilitate the call;

(b) In a four-weekly cycle, and in the same rotation as in place since 23 August 2024 as follows:

(i) From 6.00pm on Friday until 4.00pm on Sunday in week one of the four-week cycle; and

(ii) Unless the Father has advised the Grandparents by no later than the preceding Thursday at 5.30 pm that he will not have the children on the weekend following that Thursday, then in week three of the four-week cycle from the conclusion of school on Friday or, at Mr Carlier's election, from 6.00 pm on Friday, until 4.00 pm on Sunday.

1. Notwithstanding any other provision in these orders, the children will spend time with the Grandparents and the Father during school term holiday periods as agreed between them in writing, and in default of agreement, as follows:

(a) If the children are in the Father's care on the last week of the long summer school holiday period, he return the children to the Grandparents at 1.00pm on the last day of the school holidays immediately before the children return to school for Term 1 of the new school year;

(b) During all school holidays the children's time with the Father shall be suspended but resume in the same pattern and rotation during the following school term as if the school holidays had not intervened.

(c) During all school term holidays, at times to be agreed between the parties in writing, and failing agreement as follows:

(i) With the Grandparents from the conclusion of school on the last day of school term until 4.00pm on the first middle Saturday;

(ii) With the Father from 4.00pm on the first Wednesday until 4.00pm on the final Sunday of the holidays before the children return to school the next school term.

(d) During all long summer holidays:

(i) With the Father from the conclusion of school until 1.00pm on 26 December in odd numbered years and on 24 December in even numbered years (such time to incorporate Christmas Eve and Christmas Day with the children remaining in the Father's care);

(ii) With the Grandparents from 1.00pm on 26 December in odd numbered years and 24 December in even numbered years until 4.00pm on 2 January;

(iii) With the Father from 4.00pm on 2 January until 4.00pm on 23 January;

(iv) With the Grandparents from 4.00pm on 23 January until the children return to school for the start of Term 1.

(a) If there are any curriculum day(s) on either side of a school holiday period, the curriculum day(s) will form part of the school holiday period.

(b) The living arrangements pursuant to Order 4(b) hereof will resume after each school holiday periods as if the holiday period had not intervened.

1. Notwithstanding the arrangements for the children set out above, the children shall spend time and/or communicate with the Father on the following special occasions provided the children are not already in his care pursuant to these Orders:

(a) On the Father's Day weekend from the conclusion of school Friday to 4.00pm Sunday;

(b) On the Easter weekend in all even numbered years at times to be agreed between the parties, and in default of agreement, from 4.00pm Good Friday to 2.00pm Easter Sunday;

(c) On each of the children's birthdays by telephone or FaceTime at times agreed between the parties, and in default of agreement, from 5.00pm to 5.30pm.

(d) On the Father's birthday by telephone or FaceTime at times agreed between the parties, and in default of agreement, from 5.00pm to 5.30pm.

1. The Grandparents be at liberty to request the Father by email to undertake a hair follicle test for drug testing purposes ('the testing') on one occasion in each calendar year at the Grandparents expense.
2. Within 14 days of receiving the request the Father make an appointment and attend for a hair follicle test at JJ Clinic or nominee; or an alternative provider who is able to conduct equivalent testing ('the Clinic') for hair drug testing purposes; and

(a) Inform the Grandparents of the identity of the Clinic to facilitate their payment of necessary fees; and

(b) Authorise the clinic to provide the results of testing directly to the Grandparents by email contemporaneously with the provision of the results to him; and

(c) The Grandparents do all acts and things to cause and ensure that they pay the costs and fees of the testing.

1. In these orders, "hair follicle test" means hair analysis conducted in accordance with the guidelines and requirements of JJ Clinic or nominee. Either head or body hair may be collected for testing.
2. Notwithstanding any other provision in these orders, copies of the result of the hair follicle test must be provided by the Father to the Grandparents within 48 hours of the date on which the hair sample test results are available to the Father.

1. Save as otherwise agreed between the Applicant and the Respondents in writing, changeovers that do not take place at the children's school(s) take place at McDonalds Restaurant, B Shopping Centre, C Street, City D, Victoria.

Communication between caregivers and access to information

1. Save as otherwise agreed between the Father and the Grandparents in writing, the Father and the Grandparents communicate about all urgent or emergency matters relating to the children by telephone.
2. Save as otherwise agreed between the Father and the Grandparents in writing, the Father and the Grandparents communicate about all non-urgent matters relating to the children's care, welfare, and development in writing via the AppClose Parenting Application ('the parenting app').
3. The Father and the Grandparents keep each other informed in writing of:

(a) Their current residential addresses, and notify each other of any change to their residential addresses at least twenty-one (21) days prior to the change where practicable and otherwise, as soon as possible after the change;

(b) Their respective email addresses and contact telephone numbers, including mobile phone numbers, at least seven (7) days prior to the change where practicable and otherwise, as soon as possible after the change;

(c) All changes to person or persons living in either of the parties' homes;

(d) All serious illnesses and/or injuries sustained by the children or either of them whilst in the parties' respective care requiring hospitalisation or specialist medical attention and notify the other party of the name and contact details of the medical practitioner(s) and allied health professional(s) treating the relevant child(ren) as soon as practicable;

(e) All non-prescribed medication administered to the children or either of them in the twenty-four (24) hours prior to all changeovers;

(f) All prescribed medication to be administered to the children or either of them during time spent with the other party, including instructions as to timing and dosage, with the medication to be provided/exchanged at changeovers.

1. The Father and the Grandparents keep each other informed in writing of the names and contact details for all the children's current treating medical, dental, and other allied health practitioners and notify each other forthwith in the event the children or either of them attends on any new treating medical, dental and/or allied health professional(s).
2. All parties be at liberty to seek and obtain all medical and health information relating to the children at the expense of the requesting party.
3. All parties be at liberty to communicate with the children's treating medical, dental, and allied health practitioners ("the children's treating practitioners") in relation to the children's health and wellbeing in such manner and by such means as the children's treating practitioners require and/or direct.
4. All parties ensure the children's treating practitioners are aware they have authority to communicate with all parties in relation the children.
5. The Father and the Grandparents notify each other of all medical, dental, and allied health appointments scheduled for the children or either of them in writing via the parenting app at least seven (7) days prior to the appointment where practicable and otherwise, as soon as possible after the appointment is scheduled.
6. Within twenty-four (24) hours of attending upon the children's treating medical, dental, or allied health professionals, the party who attended with the child(ren) provide the other party with a summary of all information they received from the treater during the appointment in writing via the parenting app.
7. All parties continue to facilitate the children's attendance upon their treating medical, dental, and allied health practitioners with such frequency and for such duration as recommended by those practitioners.
8. All parties be at liberty to communicate with any NDIS co-ordinator engaged for or on behalf of the children or either of them.
9. In the event the children or either of them:

(a) Are prescribed new medication; and/or

(b) The dosage of a prescribed medication changes

the party who obtained the new medication or instructions as to the changed dosage use their best endeavours to obtain a letter from the relevant child's treating medical, dental, or allied health professional stating:

(i) What the medication is;

(ii) Who prescribed the medication; and

(iii) How the medication is to be administered

AND IT IS REQUESTED the treater prescribing the medication provide such a letter.

Education and Extra-Curricular Activities - Communication, Information, and Attendance

1. All parties be at liberty to communicate with staff at all schools at which the children attend in such manner and by such means as the school(s) permit(s) and/or expect(s).
2. All parties do all acts and things to cause and ensure that the parties are authorised to seek and obtain from the children's school(s) copies of reports, notices, correspondence, photographs and other like documents parents ordinarily receive, in relation the children, at the expense of the requesting party.
3. All parties be at liberty to separately arrange, and thereafter to attend, parent/teacher interviews at the children's school(s).
4. All parties do all necessary acts and things to ensure:

(a) They are named as emergency contacts on the children's school enrolment forms; and

(b) They each have access to any school portal / information application utilised by the children's school(s) to communicate in relation to the children.

1. All parties do all acts and things to cause and ensure that the parties are authorised to attend all events to which parents are usually invited, including but not limited to school concerts, sports days, and extra-curricular activities, but subject to any direction of the school(s).

1. The parties each be at liberty to provide a copy of these Orders to each of:

(a) The children's school(s);

(b) The children's treating medical, dental, and other allied health professionals;

(c) Any NDIS Support Provider and/or worker assisting or supporting the children or either of them;

(d) The Child Support Agency;

(e) Centrelink;

(f) Medicare; and

(g) Any other government department responsible for providing services relating to the children or either of them.

1. The parties, their servants and their agents hereby be restrained by injunction from:

(a) Denigrating, belittling, abusing, intimidating, harassing and/or rebuking any other party or any member of their respective families to or within the hearing of the children or either of them;

(b) Discussing these proceedings or any documents prepared in relation to these proceedings, save for explaining the spend time provisions of these orders, to and/or within the hearing of the children or either of them;

(c) Knowingly permitting the children or either of them having access to any document prepared in relation to these proceedings or any associated proceedings; and

(d) Exposing the children or either of them to family violence.

1. For twenty-four (24) hours before and during any period the children are in the care of the Father, the Father be and is hereby restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any illegal drug or substance.

1. Within seven (7) days of the date of these Orders, the Independent Children's Lawyer speak with the children in relation to the Final Orders, and thereafter the Independent Children's Lawyer be discharged.
2. All extant applications and responses otherwise be dismissed and this matter be removed from the list of cases awaiting judicial determination.

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in 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).

1. Ms E ('Ms E'), then aged 41, died in 2022 from an illness. Ms E's children X, ('X') and Y, ('Y') were then aged 9 and 4. X and Y ('the children') are now 11 and 7 years old. From shortly before Ms E died, back in 2021, they have lived with their maternal grandparents, Ms Botrel and Mr Botrel ('the Grandparents') in an outer suburb of a capital city.
2. Ms E and the children's father, Mr Carlier ('Mr Carlier'), had lived together in a country town from about 2012 until 2020 when Ms E and the children moved to live, firstly with, and then nearby to, the Grandparents. Ms E was diagnosed with an illness in 2019 while she and Mr Carlier ('the parents') still lived together. After treatment, there was a short time of remission before the illness returned in late 2020.
3. When Mr Carlier was 8 years old, he suffered serious abuse. As a result of that abuse, Mr Carlier has suffered, and suffers from, Post Traumatic Stress Disorder ('PTSD'). Mr Carlier was only diagnosed with PTSD in about 2010 or 2011, when he was about 31 years of age. Consequently, until recently, throughout much of his adult life, Mr Carlier has struggled with his mental health and addiction to drugs and alcohol. Over recent years, Mr Carlier has attended upon many therapists for therapy for PTSD and addiction.
4. Mr Carlier now lives in the home he had previously shared with Ms E and the children. Mr Carlier has re-partnered and lives with Ms F. Ms F has older children who live with their father but are close to Ms F. Ms F works full-time. Mr Carlier has not worked in regular paid employment for some years. He has received a disability pension for many years because of PTSD. He is a skilled and experienced outdoorsman. Mr Carlier lives in Town G, a country town about 4 hours by car from the Grandparents' home in a capital city. Until the last day of final hearing before me, 23 August 2024, Mr Carlier had only been permitted to spend limited time with the children and that time with either his partner, Ms F, or his mother, Ms H, in substantial attendance.
5. On this final hearing, Mr Carlier asks this Court to order that the children move to live with him (in the home that they once shared with Ms E) and to spend time with the Grandparents during school holidays and one weekend each month, during school term, with necessary travel to be shared between himself and the Grandparents. He seeks an order authorising him to make all decisions about long term issues for the children after consulting the Grandparents. The Grandparents continue to ask the Court to order that the children live with them, and they now seek that the children spend unsupervised block time with Mr Carlier during school holidays and one weekend in four during school term and with shared travel. They seek an order authorising them to make all decisions about long term issues for the children and to inform Mr Carlier afterwards.
6. Until Mr Carlier brought court proceedings and eventually obtained court orders on 13 December 2022 for supervised time, the Grandparents did not permit Mr Carlier to see the children at all. From their perspective they had substantial reasons not to accept Mr Carlier's assertion that he was mentally well and able to care appropriately for the children. Until filing an amended response on 18 March 2024, the Grandparents insisted Mr Carlier's time with the children be very limited and supervised. Then, when filing their amended response, they sought that until the end of 2024 the children's time with Mr Carlier be in the substantial attendance of Mr Carlier's mother or partner.
7. The distance between households imposed some limitations on the time the children could spend with Mr Carlier. But, notwithstanding the filing of the amended response, the previously restricted regime of time between Mr Carlier and the children more or less continued until the last day of final hearing when I made interim orders dispensing with the requirement of substantial attendance.
8. The children are represented by a court ordered Independent Children's Lawyer ('the ICL') funded by Victoria Legal Aid. The ICL has supported the Grandparents in restricting the children's time with their father in these proceedings and now seeks similar orders to those sought by the Grandparents.
9. Ms Botrel was born in 1959 and is aged 66 years and works in casual employment in retail. Mr Botrel was born in 1956, is aged 68 years and is a retired finance professional.

1. Mr Carlier and Ms E had an on and off relationship when teenagers, when for a short time they lived next door to one another. Years later, in 2011, they met again via social media and commenced to live together shortly thereafter, in 2012. They separated on a final basis in 2020. The parents never married. Ms E was diagnosed with an illness in early 2019 and at this time the parties were cohabitating together. The illness was treated, and Ms E went into remission. The illness returned in late 2020 and, at this point in time, the parents had separated.
2. From the time the parents separated, Ms E was living with the Grandparents and the children in Melbourne, while Mr Carlier remained in his residence (the former relationship home) in the country town.
3. Both children attend J School, X is in Year 6 and Y is in Year 1. One factor of the breakdown of the relationship between Ms E and Mr Carlier was the diagnosis of Attention-Deficit/Hyperactivity Disorder ('ADHD') of X. The parents disagreed over the diagnosis and the prescribed medication given to X. These disagreements occurred for some time.
4. The parents attended upon counselling sessions in early 2020 to try and reconcile their relationship but were unable to. Ms E remained in Melbourne with the Grandparents following this session, and the COVID lockdowns then came into place. Mr Carlier believes Ms E used the Melbourne lockdowns as a way for him to not see the children. It is unnecessary to make a finding about this. Mr Carlier next saw the children in October 2020, the first time since March of that year.
5. After the illness returned, it is Mr Carlier's case that Ms E sought support from him in November 2020 to February 2021, in which Mr Carlier lived in Melbourne for that time with Ms E and the children. Mr Carlier returned to his home in February 2021, where he alleges Ms E told him to not return to her home. It is alleged, and I accept, that Ms E blocked all contact from Mr Carlier between February 2021 and April 2021. Mr Carlier believes that this occurred after Ms E became aware of him re-partnering with Ms F, and being unhappy about that.
6. Mr Carlier alleges, and I accept, that he tried initiating mediation with K Centre and was unable to organise this. He also says he had trouble retaining legal representation throughout that year to initiate proceedings about the spend time arrangements. Before Mr Carlier could commence proceedings, Ms E passed away in 2022. It is Mr Carlier's evidence that he found this out through a friend.
7. Mr Carlier was not permitted to see the children after Ms E died until limited court-ordered supervised time in January of 2023, almost two years after the children had last seen him. Time only commenced pursuant to Court orders (made in December 2022) with supervised contact service for 3 hours at a time. Limited overnight time commenced in April 2023 under the supervision of Ms F. Mr Carlier continued to request more time with the children, but the children were not permitted to see him more often.

1. Mr Carlier commenced proceedings in this Court on 15 July 2022. Orders for limited supervised time were made on 13 December 2022. Further interim orders made by consent on 8 June 2023. The spend time arrangements prior to the Final Hearing before me were that the children spend time with Mr Carlier in the Melbourne metropolitan area on each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday. For that spend time, Mr Carlier was responsible for arranging child appropriate accommodation in Melbourne and either Ms F or Ms H was to be in substantial attendance. Extant orders at the time of the Final Hearing also provided for communication between the children and Mr Carlier via FaceTime each Wednesday and Friday between 5.00 - 6.00 pm.

1. The Final Hearing commenced on 19 August 2024 and ran for 5 days. I reserved reasons on 23 August 2024.
2. The following were cross examined:
   • Mr Carlier;
   • Ms Botrel and Mr Botrel;
   • The Family Report writer;
   • Mr Carlier's partner, Ms F;
   • Mr Carlier's mother;
   • Mr Carlier's General Practitioner;
   • Mr Carlier's Mental Health Social worker;
   • Mr Carlier's previous psychologist; and
   • Ms E's former Support Worker;
3. This 5-day trial was 5 days of cross-examination and submissions. Evidence in chief was by affidavit. Absent evidence in chief by affidavit, the giving of evidence in chief orally in the witness box would have taken many more days.
4. On 17 September 2024, while the trial decision was reserved, the Court was advised by email of the Hair Follicle Test ('the HFT') undertaken by Mr Carlier, pursuant to orders made, came back as negative. The parties were at liberty to make further written submissions. They didn't. I infer because the results of the HFT spoke for themselves.

1. The documents relied upon by each of the parties are described in Appendix 1. Exhibits tendered are listed in Appendix 2.

1. In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) ('the Evidence Act') which states as follows:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy (2003) 214 CLR 118 ('Fox v Percy') observed:

[31] ...in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events...

(Citations omitted)

1. The context for those observations in Fox v Percy was that, at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the wrong side of the road for the Kombi Van. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision with the horses. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that court's findings.
2. I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
3. In this case, counsel for the Grandparents asserted that much turned on what was asserted to be Mr Carlier's lack of credit in his evidence.
4. Ultimately, I found all witnesses to be credit-worthy and mostly genuinely attempting to engage with the evidence and questions and propositions put to them. However, there are aspects of Mr Carlier's evidence that I did not accept. I do not accept his assertion that the reference to "..." in communications between himself and Ms E was merely a "fishing nickname". I do not regard some imprecision, when being cross-examined in 2024 about prior statements of when he last used cannabis or abused alcohol, as demonstrating a lack of credit in his evidence.
5. Mr Carlier admitted in a frank manner, and a refreshingly frank manner, significant problems in the past with illicit drugs and alcohol abuse and family violence between himself and Ms E.
6. The controversy in this case was whether the family violence between himself and Ms E was verbal violence or whether it was verbal violence and physical violence. I am not assisted in this case by an attempt to place a dichotomy between verbal violence and physical violence. Any family violence is deplorable and, although there may be cases that would demonstrate physical violence as an extension of verbal violence, I do not find that is so in this case. The extent of Mr Carlier's frank admissions about verbal violence had a verisimilitude about it and that verisimilitude was consistent with his frank demeanour that I observed in the witness box. Ultimately, as explained later in these reasons, I do not accept Mr Carlier's assertion that there was no physical violence, nor do I accept the Grandparents' case that the physical violence described in Ms E's written statement to the social worker (described later) actually occurred.
7. Each of the Grandparents were transparent and honest in their evidence that demonstrated their antipathy to Mr Carlier and their visceral rejection of the concept of him being an appropriate parent. They were truthful about their feelings. They really do reject the concept of Mr Carlier being a suitable or caring parent of the children without risk of exposure to family violence.

1. For some time, the authorities asserted that a Judge or Justice should be circumspect about findings highly critical of the parties where they would likely have a continuing relationship of parents of their child/ren. The well know and orthodox position was as restated in the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622 ('Adamson'):

[89] In Carlson & Fluvium [2012] FamCA 32 ("Carlson") at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:

[165] As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.

...

[169] Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.

[90] We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.

1. I am also assisted by the observations of the Full Court in Blass & Blass (2022) FLC 94-085; [2022] FedCFamC1A 63 where the court observed:

[40] While the failure to accept a witness's evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.

1. The purpose of looking at the events and attitudes of the past is to grasp the nettle of risk of future events, including risk to safety, as well as the current and future impact of past events. Although a serious allegation/s may not be proven on the balance of probabilities, the possibility of those events may indicate risk to safety.

Family Law Act provisions

1. In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Family Law Act 1975 (Cth) ('the Act'). I must consider the matters described in section 60CC of the Act in making a determination as to what orders are in the children's best interests. I apply the whole of Part VII of the Act. Relevant provisions include:

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

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

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

(c) the child's health; and

(d) the child's name; and

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

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

...

4AB Definition of family violence etc.

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

...

43 Principles to be applied by courts

(1) A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to:

...

(ca) the need to ensure protection from family violence; and

...

...

60B Objects of part[1]

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

...

60CA Child's best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

...

60CC How a court determines what is in a child's best interests[2]

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).

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

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

(i) the child; and

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

(b) any views expressed by the child;

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

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

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

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

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

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

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

...

60CF Informing court of relevant family violence orders

(1) If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order.

(2) If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order.

(3) Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

60CG Court to consider risk of family violence

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

...

61DAA Effect of parenting order that provides for joint decision-making about major long-term issues

(1) If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

(a) to consult each other person in relation to each such decision; and

(b) to make a genuine effort to come to a joint decision.

(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

1. I repeat the objects of Part VII of the Act, operating since 6 May 2024, are as follows:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Convention on the Rights of the Child ...20 Nov 1989 ('CRC 1989')

1. In the context of considering the rights of children, at least the following provisions of the CRC 1989 are relevant:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

...

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

...

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

...

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

1. Section 60CC, as recited above, came into operation on 6 May 2024 by operation of the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 that amended the Family Law Act 1975.
2. In this case, the family report undertaken in late 2023 is important evidence. At the time that report was undertaken, significant parts of the Act were different. The report writer referred to the "rights" of the child to have a relationship with a parent and that "right" was significant in the family report writer's ultimate recommendation that the children transition to living with Mr Carlier. The report writer saw that "right", as, at least in part, arising from the psychological and developmental needs of the children.
3. The now deleted "objects" and "principals", that applied when the report was undertaken, included the following:

(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

1. Those provisions were in effect, and had been since 2006, when the family report was undertaken but were omitted from the amending act.
2. Some caution must be used when looking at the plain words of the amendments. The purpose trumps the literal meaning, see Radecki & Radecki [2024] FedCFamC1A 246.
3. In determining the purpose of the amending act, I am assisted by paragraphs [16] & [17] and [44-47][3] of the Explanatory Memorandum[4] to which I was referred.
   1. New section 60B provides that the objects of Part VII are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the CRC[5].
   2. New paragraph 60B(a) outlines that the purpose of the provisions in Part VII is to ensure that the best interests of children are met, including by ensuring their safety. This reflects that, when making a parenting order under Part VII, a court must regard the best interests of the child as the paramount consideration (section 60CA). Paragraph 60B(a) emphasises that ensuring the best interests of the child are met includes ensuring their safety. This is intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child. To avoid doubt, ensuring children's safety includes protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

...

1. New paragraph 60CC(2)(e) provides that the court must consider the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so.

2. This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child's wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.

3. No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time. However, where safe and appropriate, most children benefit from spending time with their parents not only at the weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the child's daily routine and occasions and events that are of particular significance to the child.

(emphasis added)

1. The continuing reliance upon the CRC and the rights referred to therein (as highlighted earlier in these reasons) as objects of the Act maintains the concept that children have "a right" to be cared for by their parent or parents. However, that the "objects" are helpful but subsidiary to the operative provisions of an act, and the Act, is settled law and I am satisfied remains the law after the "new" objects came into operation on 6 May 2024. For convenience, I will repeat my observations in Avonlea & Daxton [2023] FedCFamC2F 1377:

Role and application of section 60B

...

1. The weight and significance of section 60B of the Act was considered by the Full Court of the Family Court of Australia in Maldera & Orbel [2014] FamCAFC 135; (2014) FLC 93-602 ('Maldera') at [60]-[81]. It is unnecessary to recite here the whole of that discussion. For present purposes I refer to the following passages:
   1. Courts have generally treated objects clauses and preambles in legislation in the same way. In effect, the former (and more recently "simplified outlines") are contemporary versions of the latter. The proper approach to the role of preambles was considered in Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:

...

It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say "that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it". See also pp. 460-461, 462-463.

... (footnote omitted)

1. The Wacando principles have been widely applied to the use and scope of objects clauses. It follows that objects clauses can be used as an aid to the construction of words of legislation (Russo v Aiello (2003) 215 CLR 643). However, intention is to be gleaned from the whole Act and, in addition to objects clauses, regard must be had to other sections (Municipal Officers Assoc of Australia v Lancaster (1981) 37 ALR 559).
2. Applying Wacando, in S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 at [22] Mansfield J said "[s]uch a [objects] clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear". And, in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at page 78, Cole JA said that "... whilst regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power".

...

1. Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words "The objects of this Part are to ensure that the best interests of children are met by..." These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child's best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court's ability to take into account "any other fact or circumstance" that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form[6], s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child's best interests, s 60B may be decisive.

...

1. It follows that we are in full agreement with their Honours in Aldridge v Keaton at [49]:

... that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.

1. Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.

(emphasis added)

1. More recently, sitting as the Full Court in Bonner & Chandler [2021] FedCFamC1A 81; (2021) FLC 94-063 ('Bonner'), Austin J dealt with a dispute between the children's parents, in an intact or united relationship, on the one hand, and the children's grandmother, that is a non-parent, on the other. Austin J allowed an appeal where the grandmother was refused orders for time with her grandchildren. His Honour observed:
   1. The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children's welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel [2014] FamCAFC 135; (2014) FLC 93-602 at [79]-[81]; Valentine & Lacerra at [42]-[43]; Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 at [42]-[61], [75]-[81] and [83]).

...

1. In Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123 ('Bielen') the Full Court applied the observation in Maldera and observed:
   1. In undertaking that important task, s 60CC of the Act sets out the list of matters that the Court "must consider" in determining what is in the children's best interests. We note that in Maldera & Orbel [2014] FamCAFC 135; (2014) FLC 93-602 ("Maldera") at [74]-[75], an earlier Full Court, after discussing B and B: Family Law Reform Act 1995 (1997) FLC 92-755, confirmed the facultative provisions are s 60CA, s 60CC and (where it applies) s 65AA, and explained s 60B (after amendments in 2006) provides "context, indicate[s] the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act". So while the s 60B objects cannot be used "to change the ordinary and clear meaning of s 60CC" (Maldera at [75]), the High Court has made clear the matters set out in subsections 60CC(2) and (3) are to be considered in a manner that is "consistent with the objects of Pt VII" to which we have earlier referred (Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 ("Bondelmonte") at [32]). Consequently, the s 60B objects must inform the Court's process of consideration required by s 60CC.

(Citation omitted)

1. Hence it is clear that that the ruling, or ratio decendi, as to section 60B of the Act in Maldera, remains good law and is binding on me. Section 60B of the Act cannot be used to change the meaning of section 60CC, but the "objects" and "principles" described in section 60B must inform my consideration of the relevant matters in section 60CC of the Act.

...

1. The law requires that I make orders that promote the best interests of the children taking into account the whole of Part VII of the Act, including sections 60CA and 60CC.

1. As stated in Australian Family Law[7] at the part dealing with section 60B:

...

The Full Court in Maldera applied to s 60B the principles that normally apply to preambles and objects clauses. Their Honours cited Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1; 37 ALR 317; 56 ALJR 16; BC8100117. At CLR 23; ALR 333 and later authorities to the effect that:

... while regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power (Cole JA in S v Australian Crime Commission (2005) 144 FCR 431; 89 ALD 12; 225 ALR 123; [2005] FCA 1310 at [22]....The court concluded (at [75]):

Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child's best interests, s 60B may be decisive.

1. Those statements are in the context of section 60B as it was prior to the recent amendments but I am satisfied those statements and observations of the Full Court and the High Court continue to apply.

1. It is undisputed that Mr Carlier suffered significant child abuse over a long period at the age of 8 years and that abuse had a profound effect on him. It is undisputed that has, at least, contributed to mental health difficulties, interrupted education, aggression, intimate partner relationship difficulties and, at times, alcohol and illicit substance abuse. It is undisputed that over many years, but particularly since commencing these proceedings, Mr Carlier has undertaken therapy.

Grief of the children from their mother's death and absence

1. Ms L, family consultant and author of the second family report, opined that the children continued to bear the grief and loss of their mother who died in 2022. While this was a commonsense observation of obvious fact, it was a significant aspect of Ms L's opinion and part of her rationale in forming her ultimate recommendations. The children's continuing grief and loss from the death of their mother was not in dispute in the proceedings, and I observe, weighed heavily on all of the parties. Ms L observed:
   1. [X] is the oldest of the 2 children, and presented as bubbly and keen to engage with the Family Consultant. [X]'s concern for and parentification of [Y] was visible at all times, even during the interview. Notably, [X] did not mention her mother during the interview, and the grief and loss clearly remains an issue, which the maternal grandparents have sought help for.

...

1. [X] and [Y] are two young children who have suffered significant trauma within the early stages of their lives. They have been exposed to bush fires, COVID, parental separation, their mother's death, and an absence from their father. [X] has been diagnosed with ADHD, and [Y] is currently being tested for this. In addition, [Y] has issues with speech and toileting, and [X] has recently been diagnosed with [a medical condition]. However, given the children mention their mother rarely, it is clear that they retain significant grief and loss from her death, and nurture, stability, and safety are paramount to allow healing and properly understand the situation, rather than a currently unknown internal narrative. Of significant concern, relayed by all parties, is [X]'s palpable over-protectiveness of [Y], and the likelihood of her fear of losing him too.

2. The children have some challenging behaviours, which is to be expected when considering the number of traumas in their short lives. The children were unable to allow their grandparents time to be interviewed without running into the room, and [Y] only allowed [X] a short period before he, too, ran in and [X]'s interview had to be finished with [Y] in the room.

3. This matter is one where all parties have a significant and evident love for the children, and all have their best interests at heart. It is a tragic situation, where all are impacted by grief for [Ms E]'s passing, and whichever way the Court decides, the other party will face significant loss. Whilst the children are too young to have their wishes considered to a substantial extent by the Court, [X]'s wish for things to remain the same is compelling in terms of her own need for control and stability in the context of a significant backdrop of trauma. It is likely that the children will find changing homes difficult initially, should they live with [Mr Carlier], as they have spent a substantial part of their lives in Mr and [Ms Botrel]'s care. However, should the children live with Mr and [Ms Botrel], as the children grow and spend more time with [Mr Carlier], it is likely that they will seek to spend more time with him, and connect with a parent, given the loss of their mother. It is also evident, however, that the children retain a connection to their mother through their grandparents, and maternal family, and whilst therapeutic support is required either way, [Mr Carlier] will require additional support to ensure he provides the children with that connection, should they live with him.

4. Despite their issues, the children are lively, pleasant, and engaging, and demonstrated a delight in being interviewed. The engagement, however, was also noted by the Family Consultant to demonstrate the level of grief, when considering their physical closeness to the Family Consultant, including wanting to sit on her lap, and their requirement for stability to reduce anxiety regarding abandonment appears encompassing. ...

...

1. Ms M[8] had also similarly observed in the first family report that:
   1. ... [Y] was three years old [...] when he lost all contact and communication with his father, [Mr Carlier], then he was four years [...] when he lost his mother [Ms E] as a result of her death. These are very formative years in regard to a child developing significant relationships, but they are also difficult years for a child to experience such immense losses as young children firstly do not comprehend that death is final, nor do they understand suddenly being cut off from a parent, so they are unable to express or understand their grief let alone express their feelings of grief. It is not unexpected that a young child may regress after experiencing such a loss.

...

1. [X] was eight years old [...] when she last had contact and communication with her father, [Mr Carlier], while she was nine years old [...] when her mother, [Ms E] died. At nine years of age, [X] would have had a limited understanding of death but she more than likely would have conceived it was permanent, she may have been able to express her feelings of grief in a basic way, but that does not mean [X] has done so. It would have been an extremely emotional time after the passing of [Ms E] with both [Ms Botrel] and [Mr Botrel] feeling the full impact of their daughter dying, while at the same time they took on the role of full-time carers for [X] and [Y]. The death of a child no matter what age is the worst experience for most parents. While at some stage, the grief may settle, it does not go away but stays within. Since [...] 2022, [Ms Botrel] and [Mr Botrel] have not only suffered the grief of losing their daughter, but they have also had to suddenly take on a new role of caring for [X] and [Y], so they have had to ensure they were emotionally available for them.

1. Ms M's observations are in evidence, are unchallenged, and I accept them.

Limitation of Mr Carlier's time with the children

1. It is common ground that, from February 2021 until Mr Carlier obtained court orders for limited supervised time, the children did not spend any time with their father - save for an observation session in late 2022 with the family report writer, Ms M. After Ms E's passing in 2022, Mr Carlier's mother ('the Paternal Grandmother') contacted the Maternal Grandparents to pass on her condolences and to speak to the children. Mr Carlier asserts, and I accept, that the Maternal Grandparents told the Paternal Grandmother that Ms E did not want the children to have contact with Mr Carlier or with his family. The Maternal Grandmother was highly distressed at that time and unable to have any meaningful discussion with the Paternal Grandmother.
2. Mediation then occurred between Mr Carlier and the Grandparents on 9 May 2022. However, an agreement was unable to be reached, and Mr Carlier initiated proceedings on 15 July of that year. The first orders providing for any communication between Mr Carlier and the children were made on 22 November 2022, whereby it was ordered:

That the Father have FaceTime calls with the children on each Tuesday and Friday between 5.00 pm to 6.00 pm with the Father to initiate the call to the Maternal Grandmother's mobile [...].

1. On 13 December 2022, it was ordered by consent that the children's FaceTime calls with Mr Carlier continue, and that they spend time with him:

Each alternate Sunday for a period of three hours, supervised by the [CC] Contact Service, at a location agreed between the parties and failing agreement in [Suburb N], with the Paternal Grandmother and the Father's partner being permitted to attend such time the children spend with the Father, save & except, for the first two supervised occasions where it will just be the Father.

1. From January until April 2023, Mr Carlier had six professionally supervised sessions with the children,[9] and observations of that time are included later in these reasons, but suffice to say the time went well.
2. Arrangements progressed further on 5 April 2023 with consent orders which made a slight variation to the day of one of the biweekly FaceTime calls, and with spend-time increasing (starting 16 April 2023) to each alternate Sunday from 10.00 am until 2.00 pm but in the metropolitan Melbourne area and supervised by either the Paternal Grandmother or Ms F. These arrangements continued until further consent orders were made on 8 June 2023 which increased spend time between Mr Carlier and the children in a graduated regime commencing with each alternate Saturday from 10.00 am to 4.00 pm, and increasing after a period of 3 months to each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday. This arrangement continued until the Final Hearing.
3. It is also common ground that Mr Carlier spent further overnight time with the children at his home during their school holidays on 29 March 2024, 3 May 2024, and from 29 June to 3 July 2024. Since overnight time commenced, Mr Carlier says he has only missed 5 overnight visits due to other commitments or illness.

1. I made interim orders at the conclusion of the final hearing on 23 August 2024 further increasing Mr Carlier's time with the children:

(a) In a four-weekly cycle as follows:

(i) Commencing Friday 30 August from 6.00pm on Friday until 4.00pm on Sunday in week one of the four week cycle;

(ii) Commencing 13 September 2024, from the conclusion of school on Friday until 4.00pm on Sunday in week three of the four week cycle;

(b) For six (6) consecutive nights during the Term 3 Victorian gazetted school holidays, from 21 September on the first Saturday of the holidays until 27 September 2024 six (6) nights later with changeover on both occasions to occur at 12.00pm at [the public mid point];

(c) On a week about basis during the 2024/2025 Victorian gazetted long summer school holidays commencing 21 December 2024 on the first Saturday of the long summer holidays and concluding 28 December 2024 seven (7) nights later (this period encompassing Christmas in 2024) with changeover to occur at 12.00pm [the public mid point];

(d) At such further and other times as agreed between the Father and the Maternal Grandparents in writing.

1. Those interim orders have been in place pending delivery of final orders and these reasons. Hence, fortnightly and half school holiday time, unsupervised, has been in place since the end of the trial.

1. In evidence before me was 'ICL 2', the subpoenaed Victoria Police records regarding Mr Carlier. These records included a court date in late 2012 in Town O Magistrates' Court for burglary and other offences. The result is recorded as:

Without conviction, fined an aggregate of [...].

Without conviction, Adjourned to [late] 2013.

TO CONTINUE TO SEEK COUNSELLING AS DIRECTED BY [DR P] AND TO CONTINUE TO ACCEPT TREATMENT AS RECOMMENDED BY HIS GENERAL PRACTITIONER.

1. In his affidavit, Mr Carlier deposed as follows:

I also have a daughter [Q] by a relationship I had for about 8 years with a woman named [Ms R]. [Q] was born [in] 2010. She was unfaithful but we reconciled.... After we separated in 2010 I still had a key to the house we shared and knowing she was away I went around to her house to collect my fishing gear. While in the house I took a diary of hers but nothing else. The fishing gear was no longer in the house. [Ms R] told the police I broke into the house and stole [personal items]. She made an insurance claim for these items. I was charged but was dealt with by the court by way of caution.

1. During cross-examination, it was confirmed that the burglary charge referred to above and in ICL 2 related to that same incident where Mr Carlier says he attended Ms R's property, while very drunk, to collect his fishing gear but, being unable to find that, had searched the house for her engagement ring and stolen her diary, and although he said he had no recollection of it, stolen and disposed of those items. In addition, in the home, he had found and drew attention to items of a sexual nature. Mr Carlier gave the following oral evidence:[10]

MR GATES: You committed a burglary?

[MR CARLIER]: Yes.

MR GATES: And you had an intent to steal some(thing) when you entered?

[MR CARLIER]: I - once I - no. I went to go get my - well, steal my own stuff back. But it turned into worse than that.

...

1. The frank statement that, "it turned into worse than that" was entirely correct and the invasive, intrusive and sexualised nature of the offending is troubling, and I infer, from the nature of what occurred, would have profoundly troubled Mr Carlier's former partner when she learned of the events in her home. I take into account Mr Carlier's account of the events to Dr S. I am satisfied that Mr Carlier understands the seriousness of the offending, but I am not satisfied that Mr Carlier fully understands the impact of the offending upon his former partner that, I infer, occurred.
2. That Mr Carlier felt that he had been betrayed by his former partner (I make no finding that he had or had not been) is part of the context of the offending but it remains a significant event as to how Mr Carlier, when disinhibited by alcohol and upset by feelings of betrayal, had treated a former intimate partner. The issue is: does this event portend for the future?

Mr Carlier's other two children and their mothers' complaints of violence

1. The undisputed evidence is that Mr Carlier has had two earlier significant intimate partner relationships and a child from each relationship. He does not see or have a relationship with either child. Each of those women have complained of family violence from Mr Carlier. And I infer, from those not disputed events, that each of those other parents of those two children do not want him to have a relationship with those children.
2. Neither of those other two women was a witness in the case. Court documents, sworn by one of those women, were in evidence, with a document that includes allegations of family violence against Mr Carlier.

Mr Carlier loses his temper with Child Protection

1. In evidence before me was a document known as 'ICL 1', the Department of Families, Fairness and Housing ('DFFH') section 69ZW response dated 21 November 2022. That document includes the following:

Current situation

23 August 2022 - Present

Child Protection received a report in relation to children [Y] and [X] being exposed to historical family violence perpetrated by their Father, [Mr Carlier] against their Mother, [Ms E] (now deceased). ...

On the 28th of October 2022, Child Protection attempted to interview with [Mr Carlier] via phone regarding the alleged concerns. [Mr Carlier] expressed frustration toward child protection's involvement stating that the allegations have already been investigated by a psychologist and found no risk to his children. He denied ever hurting the children or shaking [X], which was alleged, stating there was no evidence. [Mr Carlier] provided a brief overview of his relationship with [Ms E], focussing on her [medical] treatment and his support toward her. [Mr Carlier] described feeling "almost suicidal" having to go through the allegations again as asked by Child Protection. Child Protection practitioners attempted to deescalate [Mr Carlier] to make a thorough assessment however, he directed practitioners to speak to his lawyers and the children's court appointed counsellor. Child protection noted a heightened state from the father as he raised his voice, swore at practitioners on two occasions, spoke at length without ability to be interjected, and spoke in circles at times.

1. When cross-examined about this incident, Mr Carlier gave the following evidence:

MR GATES: Now, the report says that when they spoke to you, you were speaking in circles?

[MR CARLIER]: Yes.

MR GATES: Do you know what that - - -?

[MR CARLIER]: Yes, I do. I asked them what the circumstances of the report were. ... They told me that I wasn't allowed to know. ... And I was like, "Well" - and then I kept asking them if it had to - because we had just been to mediation - not mediation, [Ms M], I'm pretty sure, could be wrong, where - we just went to either [Ms M] or mediation, and I'm asking if it was about my children and the allegations that have been made of family violence. They said they weren't at liberty to say, and I said, "Well, how can you speak to me if you're not, like" - and so we just kept arguing around in circles with that. I got very frustrated and I swore. I did swear - I - I did swear at them.

MR GATES: What did you say to them?

[MR CARLIER]: Something of the lines of, "Do your f***ing job."

MR GATES: From the conversation they were having with you, did it appear they were trying to do that? ... Do their job?

[MR CARLIER]: Yes. It was - that was all on me. That was my - that was my - that was all on me. I was just frustrated with what was going on with courts and, you know, I - yes. I was just very, like - yes, just frustrated, and I should [not] have been taking it out on the DHS workers and - yes. It was really bad.

1. The Child Protection practitioners were merely doing their difficult job. That difficult job includes dealing with various constraints about what they can and cannot tell a parent. The substance of Mr Carlier's understanding of the conversation was not challenged. It is consistent with the well-known modern restrictions on information sharing generally known as "privacy". I accept Mr Carlier's account. The frustration of any parent, who is not currently permitted to see his children, being questioned by an authority, but only permitted limited information is self-evident. The context to Mr Carlier's discourtesy and disinhibition must be taken into account. When looked at with the very substantial therapy undertaken (discussed later), this incident, although relevant to the assessment of the risk of harm, does not significantly inform that assessment.

1. Until some point after he commenced therapy and treatment in relatively recent times, Mr Carlier abused illicit drugs and alcohol. He says, in substance, that as a result of his motivation to be reunited with his children, his new relationship and the substantial therapy he has undertaken since early 2023 that he now abstains from alcohol and illicit drugs including cannabis and prescribed cannabis. The Grandparents remain sceptical about what Mr Carlier says about his substance use.

1. Mr Carlier seeks, more or less, that the recommendations of the second family report writer be put into effect and that the children move to live with him and Ms F in Town G and that they spend time with the Grandparents on one weekend each month and for half of the school holidays.
2. The main points of Mr Carlier's case include:
   • That despite the children not seeing him for a very long time, in circumstances where he was pressing to see the children, the children had a strong parental relationship and attachment with him; and
   • That the therapy he had undertaken since early 2023 was extensive and effective and would strongly militate against a risk of the children being exposed to the risk of intimate partner violence; and
   • In any event, family violence between himself and Ms E had been, to some degree, mutual and never physical; and
   • The allegations that he had been violent to X were not correct, notwithstanding his acceptance of the inappropriateness of the "holding her up" allegation or event; and
   • The family report writer's expert observations about the children's need to live with a parent were correct and should be followed; and
   • He had considerable family support, including his mother, the children's grandmother, in Town G; and
   • The fact of the children being safe in his care was, to a degree, demonstrated by the approval that child protection gave to his occasional care of his nieces and nephews; and
   • His rejection of the use of illicit drugs and alcohol was genuine and could be relied upon; and
   • Ms E's statement to the social worker shortly before she died was, at least in part, motivated by her upset and antipathy to the fact that he had, after separation, established another relationship with Ms F, and Ms E's apparent rejection of his statements to her that he and Ms F had put their relationship on hold while he returned to live with Ms E and the children for a short time after the return of her illness and before her death; and
   • Ms E's statement to Ms T was unsigned and was not sufficiently reliable to be regarded as an accurate account of what Ms E had actually experienced.
3. Details about Mr Carlier's case and evidence included a denial of the allegation that, as between Ms E and himself, his angry or abusive or dysregulated behaviour was referred to as "...". His evidence was that the references to ... was a reference to a fishing mate's nickname for him. I do not accept his evidence about the reference between he and Ms E to "...". Such an account is implausible and contradicted by the text messages exchanged between Mr Carlier and Ms E and in evidence exhibited to the Maternal Grandmother's affidavit as the exhibit described as 'Annexure C'.[11]
4. Mr Carlier's mother, Ms H, and his partner, Ms F, gave evidence. Ms H's evidence corroborated Mr Carlier's account of verbal abuse back and forth between the parents. She also asserted that Mr Carlier, to her observations, now abstained from alcohol and illicit drugs and had a settled and supportive relationship with Ms F. Ms F's evidence was to the same effect. I accept the evidence of Ms H and Ms F on those matters. I also accept Ms F's evidence of Ms E's unhappiness, in the last days of her life, of Ms F's relationship with Mr Carlier.

1. The Grandparents sought that the children remain living with them, that they have sole parental responsibility for long-term decisions, and that from the end of 2024 Mr Carlier spend unsupervised weekend time each month, as well as school holiday time with the children. Matters the Grandparents pressed included the following:
   • Ms E's statement to the social worker, Ms T, should be accepted as an accurate description of what Ms E endured; and
   • Ms Botrel had observed bruising to Ms E's back on one occasion; and
   • Mr and Ms Botrel had observed holes in the wall at Mr Carlier's residence consistent with a violent outburst and damage to the house; and
   • The extent of Mr Carlier's past drug and alcohol abuse and imprecision, or contradictions, in his evidence about when he last consumed cannabis and/or abused alcohol meant that I should not accept his assertions of abstinence from illicit drugs, including cannabis, and alcohol; and
   • There remained a real and significant risk of Mr Carlier relapsing in illicit drug and alcohol use; and
   • Dr P's opinion and evidence should be accepted; and
   • Mr Carlier's aggressive rejection of enquiries from Child Protection (at a time when he was seeking to see the children but not permitted to do so) and relatively recent aggressive reaction to what Dr P told him in their last consultation (also at a time when he was seeking to see the children but not permitted to do so) demonstrate the failure of the therapies that Mr Carlier had undertaken; and
   • Ms F's denial of any family violence between herself and Mr Carlier over a number of years should not be accepted, or at least should be regarded with circumspection because of Ms F's less than frank description of what Mr Carlier called Dr P at the end of their last consultation; and
   • Ms F's account of peace, tranquillity and sensitivity in her relationship with Mr Carlier was implausible and she was so approving of him, that her account should be disregarded, or not accepted; and
   • There was an unacceptable risk that Mr Carlier would relapse into drug or alcohol abuse and intimate partner violence, whether with Ms F or another partner; and
   • To the extent that the current circumstances indicated successful treatment of PTSD and another mental health condition, those indications rested upon the continuation of his relationship with Ms F and that there was a significant risk that his relationship with Ms F would not survive into the future and hence, the inevitable loss of that relationship (likely due to intimate partner violence) would likely plunge Mr Carlier into a relapse of drug and alcohol abuse and dysregulated behaviour that would put the children's welfare at risk in his care; and
   • The children's complex medical and therapeutic supports were unlikely to be able to be maintained were the children to move to live with Mr Carlier in regional Victoria.

1. The Grandparents relied upon the evidence of Ms T, a Mental Health Practitioner. Ms T had met with Ms E for a number of appointments in 2021 in her then role as a Child and Family Practitioner at U Service. Ms T deposed to having undertaken a 'family violence risk assessment' with Ms E and, annexed to her affidavit, is a typed statement she says was written in consultation with Ms E on 1 September 2021. The statement was unsigned by Ms E. Relevant parts of that statement include as follows:

My name is [Ms E], I first met [Mr Carlier] [in] 1979 when we were in high school, we dated for 3 years before separating, due frequent arguments and domestic violence perpetrated by [Mr Carlier].

[Mr Carlier] and I re-commenced our relationship in 2011 and started a family shortly after in rural Victoria, in the town of [Town G]. This started off well and we were happy when we had our first daughter, [X] [in] 2012 and our son, [Y] [in] 2017, five years later.

However, during this time there was significant family violence in the home, which was often witnessed by my two children. [Mr Carlier] was physically, verbally, emotionally and financially abusive towards me and the children and also engaged in many behaviours that meet the definition of coercive control (Stalking, monitoring my movements and interactions with others, isolating me from friends and family). I fled my family home in [Town G] in February 2020 to stay with my parents, living in [Suburb V], Melbourne.

• [Mr Carlier] monitored/stalked my movements/activities and often demanded access to my mobile phone, car keys and personal items. [...]
• [Mr Carlier] was verbally abusive towards both me and the children, he would often yell, swear and damage property around the home when he became angry. [...] [Mr Carlier] has made a number of threats towards the kids and has been verbally abusive towards them ex: yelling/screaming, invading personal space, swearing.
• [Mr Carlier] physically assaulted me numerous times throughout the relationship, he would often hit, slap and shake me when he became escalated, this happened frequently throughout the relationship and increased in severity and intensity prior to my fleeing the family home in February 2020, with assistance offered by [W School],[12] who were able to assist me with safety planning in order to leave [Mr Carlier] and move to Melbourne, to be with my parents.
• I experienced intense fear and constant hypervigilance at home, I would monitor [Mr Carlier]'s moods and actions frequently to assess risk and protect my kids. When the violence was at its worst, I remember [Mr Carlier] used to shave his beard and head when he planned on assaulting me, as during previous attacks I had pulled his hair hard to stop him. I knew when he shaved that he was planning to hurt me, and this was often enough to prompt me into submission.
• There were several serious incidents that occurred in 2019-2020; [Mr Carlier] and I were arguing when he chose to use violence and strangle me in front of the children, this left me with sever bruising, a sore throat, and a lost voice for the following couple of weeks.
• There was also another strangling incident I recall; we were standing face to face before he spun me around and put his arm around my throat, he lifted me up so that my feet were off the ground while he choked me. This occurred whilst [Y] (2yrs old at the time) was in the room, [...] I sincerely believe that if I didn't fight back that he might have killed me on this occasion.
• [Mr Carlier] has also made numerous death threats towards me, one of which was posted to a Face book group page. He commented 'I'd kill to be able to kill my ex', however this was removed shortly after.
• [Mr Carlier] has a diagnosis of [mental health condition] and PTSD. It is my understanding that he also has a history of perpetrating family violence and has had numerous IVO's taken out against him by his family members and former partners, [...]
• I also have a diagnosis of [an illness]; I am currently undergoing [treatment] which leaves me very physically weak and feeling very vulnerable. [Mr Carlier] is aware of my address, and I am very fearful of [Mr Carlier]'s ability to access my home and also access the children at school without my consent. My parents ([X] and [Y]s maternal grandparents) have been the full time carers of my children whilst I am unwell and on the occasions I have been admitted to hospital, they have resumed caring for my children full-time.

1. There was some controversy about the content of that statement, given that it had not been signed by Ms E. During cross-examination, Ms T gave evidence as to how the statement came about:[13]

MR GATES: ... just describe what took place then with you and her and the typed statement at that location?

[MS T]: Yes. It was quite common for me to visit her at home with both children. So I would generally see [Ms E] and the children - I believe [Y] and [X] - fortnightly for family counselling sessions. On that occasion, I believe - I generally brought a laptop with me and we were going through some of her experiences of family violence, with the kids playing elsewhere, so it was just me and her. We - I think there was a few purposes of taking the statement. One was a case management purpose. One was a therapeutic purpose. The therapeutic purpose would have been to go through those experience with her to sort of - to comprehend what has happened, what the impacts of that may be, and sort of work out what areas she could regain some control in, and work through those. Another purpose would be if there was any escalation, that that information could help support an IVO, if it was needed.

...

MR GATES: So the - annexure A that has been produced, which is the one-page family violence statement, were you present with [Ms E] when she read that or not?

[MS T]: Yes. Yes, when she has read over that. Yes.

MR GATES: And is there any reason it wasn't signed by her?

[MS T]: No. I think the - the purposes of me typing that, at the time, would have been more of a therapeutic lens to be reviewing it with her, in terms of using it for more of a case management focus. I think that was something we were going to consider, if needed.

...

1. Ms T also gave the following evidence during cross-examination by counsel for Mr Carlier:

MS BYRNES: You, in answer to some questions from the counsel for the grandparents a minute ago, said that the purpose of preparing the report that you annexed to your affidavit was to assist in therapeutic - in a therapeutic manner. Am I right in saying that you were recording things that she told you, in that document, in order to record what she was saying and to provide her with support, as opposed to the intention that it would be used in some kind of proceedings? Is that - am I right; is that what you're saying?

[MS T]: Yes.

MS BYRNES: And you said it wasn't signed for that reason. It was a - sort of a document that recorded some of the things she - well, what she told you about those topics, but it didn't need to be signed. Is that what you're saying?

[MS T]: Yes. So it was more just a - a personal statement of [Ms E]'s, just recording her experiences.

...

MS BYRNES: Thank you. And you said:

I prepared the typed statement on her behalf.

Did she ever write anything down for you, by way of a statement? Was it only you - - -?

[MS T]: No.

MS BYRNES: - - - listening to what she told you, or being with her and you typing it?

[MS T]: No. So being with her; her - her speaking, me typing.

MS BYRNES: And you say here, after the 1 September appointment, you met with her to confirm that the statement was correct. Is that your evidence?

[MS T]: Yes.

MS BYRNES: Okay. And you go on, at paragraph 8, and say:

The statement was prepared, as she indicated she wanted to apply for an intervention order against [Mr Carlier].

So in your affidavit, you say you prepared it for that purpose, because that's what she told you she wanted to do. Now, here you've given evidence that it grew out of a number of sessions, recording her experiences for the purpose of continuing therapeutic treatment. So which is it; was it prepared for an intervention order because she asked you to - that did she wanted it for that purpose, or is it, as you've said here, it was a document that was created not for that purpose, but for the purpose of your therapeutic support of her.

HIS HONOUR: Well case management, therapeutic and the intervention order?

...

[MS T]: I would say it was prepared for all of those purposes, not just solely one.

1. I am satisfied Ms T's statement conveyed the substance of what she was told by Ms E.

1. Ultimately, and in final address, having not formally indicated what orders the ICL sought, the ICL supported the Grandparents' case. The probing cross-examination of Mr Carlier, his mother, and Ms F by counsel for the ICL had the appearance of unequivocal support for the Grandparents' case. It may be that there was just more to work with in terms of cross-examining Mr Carlier than the Grandparents.
2. Counsel for the ICL had the further, or additional point to the case pressed by the Grandparents, that the depth of Mr Carlier's personality and mental health difficulties required years-long therapy and treatment, and that, despite Ms Z's optimism, his therapy with Ms Z was really at a beginning, or initial stage and hence, I infer, he should not be regarded as rehabilitated and his mental health condition should not be regarded as being in remission.

1. There was substantial expert evidence in the case and it must be taken into account. It must also be considered taking into account the time of the expert observation and the chronological order of the various reports.

1. Dr P had provided treatment to Mr Carlier over sixteen sessions starting in 2012 following his compulsory treatment as an inpatient at a psychiatric facility. She provided further treatment in 2018 and was then requested to again interview him in late 2022 and provide a report for use in the proceedings. Dr P had also met the children's mother, Ms E, in the course of her therapy with Mr Carlier. Pursuant to the request for a report, Dr P saw Mr Carlier together with his partner, Ms F, in September 2022. That consultation did not go well. As described by Ms M, the consultation resulted in Mr Carlier calling Dr P a "hack" and walking out of the session. During cross-examination, Mr Carlier gave evidence regarding that incident:[14]

MR GATES: [Dr P], if I paraphrase it, didn't you say to [Dr S] about her, "She 100 per cent saved my life"?

[MR CARLIER]: Yes, she did.

MR GATES: Highly regard her for the help that she gave you?

[MR CARLIER]: Yes, I do.

MR GATES: And you called her a hack, didn't you?

[MR CARLIER]: On the last visit, yes, I did.

MR GATES: And that's because you disagreed with the opinion she had about you?

[MR CARLIER]: Yes.

1. He also gave the following evidence in re-examination:[15]

MS BYRNES: ... Why did you call [Dr P] a hack?

[MR CARLIER]: I had been seeing [Dr P], you know, over - I've got to say - well - we will go over this, but I got in trouble for it yesterday. I had been seeing [Dr P] over a period of time and had a very good rapport with her. And at that last - the ... Well, the last - the last two - the last two times I seen [Dr P] was when these court proceedings started. Mediation, I think it was. It wasn't court. It was just mediation had started. I told [Dr P] about the allegations. At that stage, I hadn't received [Ms T]'s report. Like, I had not - I had not gotten that, but I had been told about the allegations of family - not family, sorry. We were told about the allegations of me having a split personality. And the second last consultation I had with [Dr P] she said, "Split personality doesn't exist. That's a thing on TV. It's actually called [a mental health condition]." And her exact words - because she speaks really well [Dr P]. You will hear from her later. Her exact words, "It's called [a mental health condition] and you, my dear, do not have that." All right. And then the following consultation I seen [Dr P] I gave her the [Ms T] report because I received it from my lawyers ... She has obviously read that, and she - she was - she said, "If you have done these - if you've - if you've done what these allegations say you will never see your kids again." And I was upset with that. And I said to - I - my - I said to [Dr P], "You've been seeing me for years. All right. You know that - you've seen [Ms E]. You know, [Ms E] has been in these things with you. Like, you know that I haven't done that." And she's, like, "Well, you know, if you have you're never going to see your kids." And I got up, and I started to walk out. [Dr P] said to me, "If you walk out of this courtroom I'm not going to write your" - I mean, "If you walk out of this appointment I'm not going to write your report." And I went, you know, "I don't care. You're a fucking hack anyway." And I walked out.

1. I am satisfied that where Mr Carlier referred to a mental health condition as emphasised above, he was referring to where Dr P referred to and told him that he did not have "dissociative identity disorder" in the context of Ms Botrel asserting that he suffered "split personality disorder", as Dr P explained in cross-examination and is recited later in these reasons. I otherwise accept Mr Carlier's evidence about how he behaved on this occasion. It is consistent with Dr P's oral evidence given later in the hearing.
2. It must be noted that at the time of the disastrous 2022 consultation, despite having treated him back in 2012 and 2018,[16] Dr P had not ever told Mr Carlier that he suffered from a mental health condition. There is no evidence anyone else did up to that point of time.
3. It must be borne in mind that as at the day of the consultation (28 September 2022, or thereabouts), notwithstanding many requests and commencing proceedings, Mr Carlier had still not been permitted to see the children, or even speak to them, over the past 19 months. Dr P had been provided with Ms E's written statement detailing family violence and text messages between Ms E and Mr Carlier.
4. Mr Carlier's partner, Ms F, also gave oral evidence regarding the 'hack' incident:[17]

[MS F]: So I was at that appointment with [Mr Carlier] and it was when the family violence allegations were raised in that meeting. I guess, [Mr Carlier] became a bit emotional about that, and he needed to remove himself from that situation before becoming too upset. He got up to walk out, and [Dr P] said, "[Mr Carlier] if you walk out of this room, I will not write you a favourable report".

...

Then we both got up. [Mr Carlier] went out, and I followed shortly after.

1. Ms F asserted she did not hear the "f***ing hack" abuse of Dr P by Mr Carlier and I do not accept her evidence of that. However, little turns on that.
2. Notwithstanding that final consultation, Dr P provided a report regarding Mr Carlier dated 27 September 2022 that is in evidence. Dr P's report described the serious abuse Mr Carlier had suffered at 8 years old and opined:

No trauma was experienced in the first seven years of [Mr Carlier]'s life. However, at the age of eight..., [Mr Carlier] was subjected to [serious and prolonged abuse]...

...

[Mr Carlier] did not disclose the abuse until the age of twenty two ...

...

His mother, on reflection recalled that up until that time, [Mr Carlier] was an even tempered, well balanced child, who suddenly turned into a child prone to temper tantrums, and was experiencing acute anxiety with lowered self esteem. The long term effects on this client are: depression, acute anxiety, an eating disorder, as well as substance abuse during his teens and early twenties.

In my opinion, when [Mr Carlier] experiences circumstances beyond his control he becomes agitated, angry, losing all control of rational thought processes.

From [Mr Carlier]'s diagnosis and my knowledge of [Mr Carlier]'s behaviour, I would have to concede that the allegations of Family Violence towards his family may well be conceivable.

These allegations call into question in my mind whether [Mr Carlier] is trying to gain access to his children as part of his need to control what he sees as "his property or his children", or whether his love of the children and what is in their best interests is the catalyst for his actions. Was it in their best interests to experience family violence?

[Mr Carlier], in my opinion does not understand what constitutes family violence, and has no understanding of the impact of such violence on his children or his former partner.

(emphasis added)

1. Dr P was also cross-examined during the final hearing. Her oral evidence included the following:[18]

MR GATES: We've heard evidence in this case about that last meeting, and the conduct of [Mr Carlier] towards you. What I'm going to suggest to you is he yelled words - to the effect of - calling you a "f***ing hack" on that occasion. Do you remember that exchange?

[DR P]: I remember that - him getting very angry, but I don't remember the exact words.

...

MR GATES: Was his partner [Ms F] there with him on that occasion?

[DR P]: She was.

MR GATES: When he became angry, what was his demeanour that led you to the conclusion that he was being angry? So what was his voice like?

[DR P]: His voice was raised, his facial expressions had changed. He was quite red in the face, he stood up, and he started to say something. And I interjected, and told him to calm down, and sit down.

MR GATES: Did that work?

[DR P]: For a short while, yes, it did.

MR GATES: Did he then become angry again?

[DR P]: He did, and he left.

MR GATES: Was that exchange something - in your professional life - that stood out as being overly aggressive?

[DR P]: I would have to say, yes.

...

MR GATES: Did you feel concerned for your personal safety at the time?

[DR P]: No.

MR GATES: Did [Ms F] do anything to try and prevent his behaviour?

[DR P]: Not that I can recall. I had a conversation with her after he left.

[DR P]: I have to say that I saw him react - not violently, but quite aggressively, on a couple of occasions when his mother was sitting with us. He didn't like her response, and so he was quite short with her.[19]

MR GATES: When you say "quite short", is that a euphemism to (say) he was aggressive and violent towards (her) in his language, or not?

[DR P]: No, he was just telling her to shut up.

MR GATES: Do you remember what it was that his mother was saying that caused him to say that to her?

[DR P]: Look, there was a number of times that that happened. If he doesn't like something that somebody says, he uses - what I call - coercive control to shut the conversation down, and those people do shut up because they're frightened of his reactions.

MR GATES: Did you see any indication of that behaviour when he was in the presence of [Ms F], at any stage?

[DR P]: No. Well, apart from the last session, when [Ms F] was with us on that occasion.

MR GATES: Do you remember what it was that you said to him, or with the assistance of your notes if you want to, on that 2022 occasion, do you remember anything that you said to him that led to his first outburst of anger? And then once again, what you said to him leading to the second outbursts of anger?

[DR P]: Yes. I said that I had been given - by his solicitor - some documents so that I could prepare a report, and some of those documents were notes, or telephone calls, or texts between him and his partner that were not complimentary. And also there was also some notes from a family violence worker that [Ms E] had made, which were also not supportive of him. That's when he got up, and became quite aggressive towards me.

MR GATES: Yes. Did you - in your discussion with him - mention anything about [a mental health condition]?

[Dr P]: Not that I can remember, but... it is in my report.

MR GATES: Yes. Was there any discussion in your conversations with [Mr Carlier] about him having a split personality, and you saying, "no, dear, you don't have that"?

[DR P]: Yes, I think I do, and I think that that was reported by [Ms E]'s mother. And I told him, no, that's not true, you don't have that.

MR GATES: So for the sake of clarity, he doesn't have a split personality. But he does have [a mental health condition] was your assessment of him?

...

[DR P]: There... is no such diagnosis as split personality.

...

The diagnosis you think you're referring to is something called dissociative identity disorder.

...

And we used to call that, in the old terminology, multiple personality disorder. [Mr Carlier] does not have that. But he does have, in my opinion, [another mental health condition].

MR GATES: If he had attended dialectical behaviour therapy for a total of 39 hours and seven of those hours were one-hour sessions of individual therapy and the rest were group sessions online, would you be confident that his - sorry, his [mental health condition] symptoms could be in remission with that sort of - - -?

[DR P]: I would have to say they - they could be. But the slightest provocation and they will return.

(emphasis added)

1. Under cross-examination from counsel for the ICL, Dr P also gave evidence in regard to Mr Carlier's diagnosis of a mental health condition:[20]

MS HUTCHINGS: ... What are some of the challenges for a parent who has been diagnosed with [a mental health condition] in parenting children who exhibit difficult behaviours? So aggressive behaviour, abusive behaviour? Challenging behaviours if you like?

...

[DR P]: Yes. The challenges of having difficult or challenging children when you have [a mental health condition] diagnosis is that we all get cross and cranky with our children. But the - the line between being angry and cranky and being abusive with children is quite slight. And I would say with this case that there would be a challenge - or it would be challenging for [Mr Carlier] to hold that temper if the children were being challenging.

...

MS HUTCHINGS: Thank you. Now I think that the - your report, think the evidence you've given, is the first time or space in which you made the diagnosis of [that mental health condition] for [Mr Carlier]. That was your evidence if I've got that right. Correct?

...

[DR P]: Yes. Yes.

MS HUTCHINGS: - - - the first time he would have ... heard about it is in your report.

[DR P]: Yes. I do not give a diagnosis to clients of [that mental health condition] because it's too triggering. I just deal with the behaviours and explain how they can be corrected.

1. No party questioned the appropriateness of Dr P, as a therapist, when interviewing a patient for legal purposes, expressing an opinion, as she did, about the outcome of the legal dispute. Mr Carlier's stress upon hearing that opinion, at that point of the litigation when he has not been permitted to see his children for about 19 months, can be readily understood. That does not excuse the very poor and self-sabotaging behaviour, but context must be taken account of.
2. As at the time of his last consultation with Dr P, Mr Carlier had not undertaken the extensive counselling and therapy that he undertook after it was recommended by experts and, to some extent, court ordered. And Dr P's report and her oral evidence was based on the information available to her at the time of her last contact with him. But Dr P's disappointment at Mr Carlier's behaviour can also be readily understood. I do not accept Dr P's opinion that, at this time, the "slightest provocation" will result in the symptoms returning.

1. I take into account Mr Carlier's extensive attendance upon therapy and counselling, his demeanour in the witness box, his diligent pursuit of court orders that would permit him to spend time with the children, and his diligent attendance on the time available to him to see the children in the difficult circumstances of the significant travel involved and the significant and burdensome conditions of substantial attendance and not (himself) driving imposed upon him, I do not accept Dr P's hypothesis that Mr Carlier is trying to gain access to his children as part of his need to control what he sees as "his property or his children".[21] I am satisfied Mr Carlier is trying to see his children because he is their father who loves them, and he believes that the children living with him or spending time with him is very much in their best interests.
2. As at the time of the hearing before me, and for a substantial time before that, I am satisfied that Mr Carlier understands what constitutes family violence and has at least some substantial understanding of the impact of such violence on his children and Ms E, their mother.

1. On the first return of the matter, on 31 August 2022, it was ordered by consent that the parties and the children attend upon Ms M for the purposes of a family report. It must be kept in mind that Covid-19 had intervened in March 2020 and that Mr Carlier had not been permitted to see the children since about a year before Ms E had died in 2022. Interviews and observations with Ms M took place on 5 October 2022 (that is about 20 months since the children had last seen their father), and a report was prepared, dated 25 October 2022. This report was funded privately by the parties, with the costs shared equally between them.
2. On the first day of the final hearing, I was informed by counsel (without objection) that Ms M would not be required for cross-examination, but that parts of the report would be put to witnesses over the course of the hearing.[22] Ms M's report had been filed annexed to an affidavit affirmed by Ms M on 7 November 2022, and I proceeded on the basis that it was in evidence.
3. Ms M's recommendations were overtaken by a subsequent, intended to be updating, report undertaken in late 2023. But her observations are relevant to how the children's relationship with their father resumed. Ms M had before her the parties' interim affidavits and the written statement Ms E had made shortly before she died to Ms T, describing physical and verbal family violence to her from Mr Carlier during their relationship. That statement also asserted, "[Mr Carlier] has a diagnosis of [a mental health condition] and PTSD...".
4. Ms M's observations were not controversial. Her observations included:
   • Issue identified during assessment: All parties in this matter have been very emotional during the process. They are suffering grief following the death of [Ms E].
   • Issue identified during assessment: [X] felt happy and excited about seeing [Mr Carlier] on the day of the interviews. [Y] also felt happy but he may have been following [X]. Later [X] then exhibited anxiety when she was with [Ms Botrel] and [Mr Botrel] when [Mr Carlier] walked by.

...

1. ... [Ms Botrel] and [Mr Botrel] [said] that they have witnessed [Mr Carlier] swearing at the children but [Ms E] also swore at the children and she and [Mr Carlier] swore at each other. [Ms E] took [X] to a paediatrician twice and [Ms Botrel] has taken her to one as well who told [Ms Botrel] that [X] has no behavioural problems; that [X] used to swear but now that has improved; her behaviour has definitely changed.

...

1. In regard to alcohol and substance use, [Ms Botrel] and [Mr Botrel] said that [Ms E] and [Mr Carlier] both smoked "dope".

...

1. In regard to communication, [Ms Botrel] and [Mr Botrel] have not spoken with [Mr Carlier] since the children have been living with them.

...

1. In regard to their views on [X] and [Y] spending time with [Mr Carlier], [Ms Botrel] said that she thinks [X] and [Y] would enjoy spending time with [Mr Carlier]. When it was discussed as to why they have not agreed to supervised time or phone communication it appeared that [Ms Botrel] and [Mr Botrel] believed that they were protecting [X] and [Y].

...

1. [X] and [Y] had not seen [Mr Carlier] since about February 2021. So for the past 20 months [X] and [Y] have had no contact or communication with [Mr Carlier] ....Prior to the observation session...[X] said that she would feel happy and excited. [Y] followed and said that he would also feel happy and excited. So we proceeded with the observation session. [X] and [Y] entered the room where [Mr Carlier] was waiting. On entering [X] went straight over to [Mr Carlier] smiling and they had a long hug. Then [Y] had a hug with [Mr Carlier]. From then on the two children were chatting positively with [Mr Carlier] .... [Y] was very quiet but he looked at the video and looked at [Mr Carlier] and smiled. [X] did not stop smiling, laughing at times and chatting to [Mr Carlier]. [X] was relaxed and comfortable.... Both [X] and [Y] were comfortable being physically close to [Mr Carlier] .... [X] was being very affectionate to [Y] at times. [Mr Carlier] was very attentive to both children.... Both children continued smiling easily and often, making eye contact with [Mr Carlier]. [Mr Carlier] was very appropriate and listened well to the children, he was responding to their cues and responding positively. At the end of the session they all had lots of group hugs and told each other they love each other....

...

1. ... Both the children were relaxed and comfortable, they smiled easily and often and they were making eye contact with [Ms Botrel] and [Mr Botrel].

...

1. From my observations, [X] and [Y] appeared to have warm and close relationships with [Ms Botrel] and [Mr Botrel]. No concerns arose from the observation session about the nature of these relationships.

2. ... [X] clearly remembered [Mr Carlier] with their reunion being quite emotional and very happy. It is my view, that the very warm meeting between them indicates that [X] may have had a warm and close relationship with [Mr Carlier] in the past. It seemed that [Y], initially who watched [X]'s warm greeting with [Mr Carlier], may have had some memory of [Mr Carlier], but it is my view, after observing [X], [Y] clearly felt trusting of her to the extent he then had a warm greeting with [Mr Carlier]. It is my view, that [Y] may also have become aware of a familiarity about [Mr Carlier]. As their session proceeded, it appeared that [X] and [Y] felt very comfortable being with [Mr Carlier].

...

1. ... To start with, [X] and [Y] could spend each alternate Sunday for the day with [Mr Carlier] with the paternal grandmother supervising; for [Ms F] to also start being included in the spend time arrangements after two months. Then for the spend time to be unsupervised for four months on alternate Sundays with [Ms F] included. Then after a further four months, to start alternate Saturdays overnight but with the paternal grandmother being present overnight if possible, for two months. After two months, for [X] and [Y] to spend alternate weekends from Saturday 10am to Sunday 5pm with [Mr Carlier] with [Ms F] present; for three nights each school term holidays, with the December/January 2022/2024 holidays for three nights week about. In the meantime, [Mr Carlier] should have a psychiatric assessment and report, as well as attend an anger management program.

2. If the psychiatric assessment and report raises no concerns or if so, the concerns may be able to be dealt with through treatment, then a gradual reunification program should continue for [X] and [Y] to live with [Mr Carlier]. Under these circumstances, after [X] and [Y] have spent the rest of 2023, of alternate weekends from 5pm Friday to 5pm Sunday with [Mr Carlier] and [Ms F] and half of all school holidays, there could be a transition of [X] and [Y] moving into the full-time care of [Mr Carlier]. This would mean that [X] and [Y] could start at a new primary school close to [Mr Carlier] at the start of 2024.

...

1. ... If the above spend time arrangements proceed; if [Mr Carlier] had no concerns raised by a psychiatric assessment and report in regard to his parenting capacity; if [Mr Carlier] attends an anger management program, then [X] and [Y] start living with him from January 2024.

...

(emphasis added)

1. The recommendations were not followed. The recommended psychiatric examination was later undertaken by Dr S and is discussed next in these reasons and did not support the recommendations of the first family report.
2. It must also be noted that Ms M does not list Dr P's report (dated 28 September 2022) in her report amongst the detailed and extensive list of materials she was provided with, and I infer she did not read that report prior to her report interviews or prior to writing her report. Ms M does, however, make reference to Mr Carlier attending upon Dr P:
   1. ... [Mr Carlier] said that he had to start attending a psychologist which was when he started attending [Dr P] who he continued to see over 10 years up until two weeks ago. According to [Mr Carlier], [Dr P] had read the documents with the allegations about him being violent. [Dr P] told him that if any of that was true he would not see his children again. [Mr Carlier] said that he called [Dr P] a "hack" and walked out; he was ashamed at that; [Dr P] had been very nice but he had believed she would be in "his corner" after 10 years; then [Dr P] would not write a report until she was subpoenaed, then she wrote a report but her last paragraph said that she posed a question whether [Mr Carlier] loved his children or was he doing it for control.
3. But the observations of the children's interactions with Mr Carlier, and with the Grandparents, were not challenged and I accept them. The children's interaction with, and affection for, Mr Carlier, after not seeing him for 20 months, is striking.

1. Not long after the first family report, consistent with that report's recommendations, Mr Carlier was psychiatrically assessed by Dr S, a forensic psychiatrist, and his report dated 23 November 2022 was in evidence before me. He interviewed Mr Carlier via electronic communication on 23 November 2022, and had been provided with, and I infer had read, relevant material, including the report of Dr P and the first family report. Dr S's observations included:

The primary disturbance in [Mr Carlier]'s functioning relates to the interpersonal dysfunction, ie his ability to maintain close intimate relationships. He has a demonstrable inability to control impulses and modulate his behaviour, if one accepts allegations made against him by the late mother of the children. He recognises this pattern of behaviour which he refers to as "overdramatising" and examples of impulsive behaviour include the [Town BB] incident, which resulted in him being admitted to hospital and charged with offences. He acknowledges the presence of conflict in intimate relationships and it is evident that his romantic relationships have been seriously disrupted. The disruption is at the moderate level (on a scale of mild, moderate and severe). The disorder is not severe as his interpersonal functioning is not so seriously affected that virtually all relationships have dissolved. His [mental health condition] shows a [...] Pattern because of the pervasive pattern of instability in his interpersonal relationships, the associated impulsivity and the frantic efforts to avoid abandonment that he has displayed. If one accepts the thrust of the allegations made by the late mother of the children, the coercive and stalking behaviour is best explained by the efforts to avoid abandonment. The admitted screaming and yelling and alleged violent behaviour represents a tendency to act irrationally when there is a state of high negative emotion. Chronic suicidal ideation, prior to 2015, and the two suicide attempts are manifestations of that response to distress. Difficulty in controlling anger and inappropriate intense anger are other manifestations of this pattern.

The question of whether there is Complex PTSD is problematical.... I therefore consider it more likely that the fundamental psychiatric disturbance is one of Moderate [mental health condition].... It reinforces my formulation that the fundamental psychiatric disturbance is one of [a mental health condition], rather than Complex PTSD.

...

b) [Mr Carlier]'s disturbed interpersonal functioning, admitted emotional/verbal abuse and alleged physical abuse, all adversely impact on his capacity to parent and adequately meet the needs of his children, due to the risk of direct, and vicarious, emotional harm. However, I take particular note of the family report writer's observations[23] of the children with [Mr Carlier] and note that there is a strong bond, with [X] and potentially with [Y].

(emphasis added)

1. Dr S was not cross-examined, and I accept his observations and opinions about Mr Carlier as at the time of that report, that is late 2022. Mr Carlier had not undertaken the extensive therapy, discussed later, at the time of his assessment by Dr S.

First professionally supervised visit: 22 January 2023

1. The first supervised visit that Mr Carlier had with the children occurred on 22 January 2023 at a contact centre, pursuant to orders made on 13 December 2022. The supervisor of CC Contact Service where that time took place wrote an observational report which details that first supervised visit as follows:

...

At 11:30am the writer entered the venue with the children. The father was waiting with open arms calling for [X] saying "Hello my princess". [X] went straight to her father and gave him a hug.

[Y] entered and also gave his father a hug. ...

...

At 12:16pm, [X] ran to her father and gave him a big hug which she initiated. The father crouched down and accepted the hug. [X] gave a few hugs appearing to enjoy the affection.

...

At 12:28pm, [Y] sat on his father's lap and showed him his knee was sore.... [X] and the father had a good conversation while waiting for the food. [Y] sat on his father's lap comfortably

...

At 1:33pm, the father got the children to put their shoes back on. [X] said "I don't want to go I want to live here". [Y] started to act out saying "No I want to play!" The father was able to keep him calm and explained it was time to go and that he had fun things to take home. ...

...

At 1:34pm, the father gave the children their milkshakes and said goodbye. Both children gave him a hug and as we left [Y] started to cry saying he wanted to stay and play. ...

1. After not having seen their father for a very extended period, save for the first family report interview, the apparent comfort and happiness displayed by the children at their first visit with Mr Carlier is both self-evident and striking. A further five supervised visits proceeded with the children with the same relaxed and close affectionate interaction between Mr Carlier and the children observed. The last supervised professionally supervised visit was on 2 April 2023.
2. The observations of the supervising service were not in dispute. The second family report writer, Ms L, gave evidence of the significance of the children's affection displayed to their father as follows:

MR GATES: Now up to the time that you interviewed or saw the children and [Mr Carlier] together. So, in other words, the observations. You've described the observations where you said they delight in engaging with the father just to paraphrase. At that point in time, he had had a total of - from September to December - about seven overnights. Now, could it be that the delight, as it were, was no more than engaging with a parent with whom they've had fun interactions rather than a genuine test of how they would interact with him on a full-time basis?

[MS L]: I don't think so. No. I think their attachment - their ability to listen to [Mr Carlier], their ability to play together with him and enjoy that time with him and the ease in that relationship - was not just indicative of children who were having fun with a parent or a person.

...

HIS HONOUR: But then I get to the - he then gets some video link time for a short period. And then it's in 2023 before he actually sees the children in the supervised setting. And the first supervised settings, 22 January 2023, the children, yes, they've spoken to their father on video link. But they haven't actually spent any time:

Period of supervised contact, two hours.

HIS HONOUR: I'm reading from the report at page 7 of 30 of the 23 July version:

At 11.30, the writer entered the venue with the children. The father was waiting with open arms, calling for [X] saying, "Hello, my princess." [X] went straight to her father and gave him a hug. [Y] entered and also gave his father a hug. They - - -

And then the observations are:

[Y] sat on his father's lap comfortably.

What struck me is after that long period of time, and their exposure to a really appalling relationship between their parents - to try and use a neutral word - the apparent familiarity and closeness in those observations just struck me. What do you make of that? What message is there for me, if any, or is it just neither here nor there?

[MS L]: I think it shows their attachment to their father; a significant attachment.

HIS HONOUR: That somehow survived. Is that - that's the long and the short of it. Yes?

[MS L]: It - yes, absolutely. And I suppose the - the length of time is - is significant, because if he had been having contact with them regularly, all that time, then maybe by now, they would have been far more - we may have seen - and I'm saying "may" very carefully. We may be seeing the children saying, "I want to live with Dad."

(emphasis added)

1. I accept those opinions and observations on this point from Ms L.

February to August 2023: Men's Behaviour Change Program

1. Soon after the first professionally supervised visit, described above, Mr Carlier commenced attending group sessions in a Men's Behaviour Change Program, at a location not too distant from his residence, in February 2023.
2. Mr Carlier completed the Men's Behaviour Change Program, after having attended 18 of the 20 sessions over a period of 20 weeks, in August 2023. A letter from the Men's Services Facilitator employed at the centre where Mr Carlier undertook the program in March 2024 (annexure 'MRC9' of Mr Carlier's trial affidavit) explains that Mr Carlier's two absences were due to a court appearance, and an illness. This was not controversial in the proceedings. The controversy was the extent to which the completion of the program would influence and constrain Mr Carlier's behaviour in the future.

1. Also soon after Dr S's report was released, from 31 January 2023, Mr Carlier commenced therapy with Ms Z, a Mental Health Social Worker. Ms Z provided two reports concerning his mental health issues and treatment. Ms Z was engaged by Mr Carlier for the purposes of mental health therapy - specifically Dialectical Behaviour Therapy ('DBT') - from 31 January 2023. Ms Z was provided with court orders, subpoena material and the reports of Dr P, Ms M and Dr S.
2. Ms Z's expertise to provide therapy and report was not questioned. Ms Z's qualifications and experience include:
   • [List of qualifications]
3. The first of Ms Z's reports is dated 21 September 2023, and includes the following observations:

[26] The writer has reviewed the report provided by [Dr P] which confirms that [Mr Carlier] was in 2012 referred to [Dr P] with diagnoses of Depression and Anxiety. The psychometric testing performed by the writer, along with clinical interview did not support a current diagnosis of these conditions at the time of testing.

[27] It is noted in the report by [Dr P] that [Dr P] subsequently diagnosed Post-Traumatic Stress Disorder (PTSD). [Mr Carlier] advised the writer that he had found the diagnosis provided him some explanation for his mental difficulties. The psychometric testing and clinical assessment by the writer confirmed this diagnosis, and symptom profile is currently mild to moderate in severity.

[28] It is noted that the report provided by [Dr S] provides a considered diagnostic opinion and it is concluded that [Mr Carlier] has a [mental health condition]. The clinical interview performed by the writer supports this diagnosis. It is noted that the psychometric tests provide a profile significantly different to the diagnostic assessment provided by [Dr S]. This may occur due to under-reporting of symptoms or alternatively remission of disorder.

...

[33] Prognostic Factors :

[Mr Carlier] has a consistently positive view of help seeking and has demonstrated growing motivation and insight into his own mental health care. [Mr Carlier] is demonstrating a developing an ability to reflect and examine his own responses to situations that prompt distress. [Mr Carlier] is a forthright man, who has clear goals and ambitions for the future and for the wellbeing of the children. [Mr Carlier] reports support from his family of origin and his current partner is significant and a stabilising influence. [Mr Carlier] has, at times he feels it necessary, sought out appropriate supports and applied himself to psychological therapy and learning healthier coping skills. [Mr Carlier] cites resuming care of his children as powerful motivations for engaging in supports. [Mr Carlier] has developed more effective interpersonal skills for developing informal supports and has developed some occupational goals for the future. These factors combined with apparent positive response to therapy when engaged, are generally favourable to achieving potential remission and aiding recovery from the mental health difficulties.

...

[36] Group Program :

[In] January 2023 [Mr Carlier] commenced attending the DBT[24] Skills Class Group program facilitated by the writer. This program is 21 weekly sessions in total and each session is 90 minutes in duration. [Mr Carlier] attended all but one of the group class sessions, which he reported that he missed to due illness and he contacted the writer, via his partner, to advise of his illness (influenza). [Mr Carlier]'s group program attendance totalled 20 sessions, which is 30 hours of engagement. This occurred between January 2023 and July 2023. [Mr Carlier] is not currently attending or enrolled in the DBT Skills program.

...

OPINION AND RECOMMENDATIONS

[40] [Mr Carlier] has made efforts to engage in his own mental health care. This has required significant time, motivation, organisation and financial cost. The pattern of engagement with the writer, and previously with [Dr P], seems to be episodic and largely prompted by external factors.

[41] [Mr Carlier] acknowledged that his initial engagement with DBT Skills group was superficial and for the purposes of complying with the Court's requirements. [Mr Carlier] reports that he did find the program somewhat helpful and he enjoyed attending. It is the writer's view that [Mr Carlier] quickly discovered a genuine motivation to participate in learning DBT, as was evidenced by his regular attendance at the group, forthcoming approach to participation and his insightful and meaningful contributions regularly through the skills training program. [Mr Carlier] was a valued member of the group and made regular important and insightful contributions, demonstrating his engagement with the content of the program.

...

[45] It is the view of the writer, that currently [Mr Carlier] is likely in a remission of the most pronounced and distressing of the symptoms of [a mental health condition], as supported by the psychometric testing and clinical observations, as well as the detailed history provided by [Mr Carlier] and along with history detailed in documents supplied. A significant contributor to this remission appears to be [Mr Carlier]'s current relationship, which is perhaps providing a stabilising effect, as well as modelling coping and skilful responses to daily challenges.

...

[57] Given the prognostic factors in favour of recovery, the writer is optimistic that [Mr Carlier] can maintain a remission of symptoms and that complete recovery remains a realistic prospect, given the apparent responses to treatment thus far but this will be conditional upon [Mr Carlier] continuing to proactively manage his mental health and seek out appropriate supports as they are needed.

(emphasis added)

1. Ms Z was also cross-examined at the final hearing. Her first report was supplemented by another (discussed later in these reasons), almost a year later, in mid-2024.

1. On 8 June 2023, it was ordered by consent that a subsequent family report be prepared in these proceedings, and I infer it was intended to be updating. Interviews and observations were conducted on 22 November 2023 and a report was prepared by Ms L dated 3 December 2023. Ms L had access to, and had reviewed, Ms M's report, Dr P's report and Dr S's report, as well as other relevant materials.
2. By the time Mr Carlier saw Ms L, and after seeing Dr P, Ms M and Dr S, his therapy had included:
   • 18 Men's Behavioural Change sessions from February 2023 to August 2023; and
   • 14 online DBT Group sessions with Ms Z (January 2023 until May 2023); and
   • then 7 further online DBT "Adult Program" sessions with Ms Z (May 2023 until July 2023); and
   • one (of seven altogether) "individual therapy sessions" with Ms Z; and
   • therapy with Dr DD (discussed later); and
   • sessions with Mr EE, psychologist, (see 'ICL 3'), on six occasions between June 2023 and December 2023.
3. Relevant parts of Ms L's report include the following:
   1. [Mr Carlier] advised that he has no contact with his daughter, [Ms FF] who is now 21 years old, and has not seen her since she was 4 years old. [Mr Carlier] advised that he had tried mediation with the mother but this was difficult as he was in another state at the time, and young.
   2. [Mr Carlier] advised that his first substantial relationship, with the mother of his daughter, [Q], ended due to infidelity on the part of his then partner. [Mr Carlier] advised that he did not commit any violence against his then partner but agreed to an undertaking in Court. ...
   3. [Mr Carlier] denied all allegations of family violence within his significant relationship with [Ms E]. [Mr Carlier] advised that he and [Ms E] were very similar and very protective of each other. [Mr Carlier] advised that he would never hurt her and did not wish to "bag her out" as she was no longer here to defend herself. [Mr Carlier] conceded that there were verbal arguments but advised that these were mutual. [Mr Carlier] advised that the arguments were mostly in relation to the children but that they would get out of hand and they would say horrible things to each other, sometimes in front of the children. [Mr Carlier] advised that this shouldn't have happened.

...

1. [Mr Carlier] advised that there were no arguments within his relationship with [Ms F], which he attributed to her calming nature but also to his work regarding his mental health.

2. [Ms F] advised that she has been in a relationship with [Mr Carlier] for approximately 3 years and that he has not displayed any family violence during this time. [Ms F] advised that they have not argued at all and that there is no conflict. [Ms F] advised that [Mr Carlier] supports her with reaching her goals and that there is [not][25] coercive control within this support.

...

1. [Mr Carlier] advised that he had become aggressive with the Department of Families, Fairness and Housing, however, he advised that, when he had been contacted he had just finished with the Court stuff with [Ms Botrel] and he became frustrated when he felt the practitioner would not advise him regarding the nature of the report. [Mr Carlier] advised that he had yelled at them to "do your fucking job"[26] but would not behave in this manner again, following attending the Men's Behaviour Change Program.

...

1. [Mr Carlier] advised that he does not use drugs or alcohol anymore and no longer takes any prescribed medication. [Ms F] confirmed that neither of them use drugs or alcohol, and have not had any alcohol at all for many months. [Mr Carlier] did not have concerns regarding Mr and [Ms Botrel].

...

1. [Mr Carlier] advised that he did not have any specific concerns regarding Mr or [Ms Botrel]'s mental health but was slightly aggrieved that [Ms Botrel]'s anti-depressant use had not been raised. [Mr Carlier] denied the allegations raised by Mr and [Ms Botrel] regarding an alter-ego called '[...]". [Mr Carlier] advised that this was a nickname used by two of his friends and had no relevance to his mental health.[27]

...

1. [Ms Botrel] advised that she feels [Mr Carlier] loves the children but is concerned that he can't manage when things are overwhelming. [Ms Botrel] advised that she feels [Mr Carlier] is fine to manage the children for visits, and when [Ms F] is present, but does not believe he could manage every day challenges. [Ms Botrel] advised that she was, however, empathetic to his issues.

2. [Ms Botrel] advised that [Ms E] had told them that [Mr Carlier] had another person inside him and didn't manage well. [Ms Botrel] advised that [Mr Carlier] has had big gaps in treatment and appears to have a pattern where he seeks help and has treatment but stops when he feels better, and then it begins to wear off. [Ms Botrel] advised that she is concerned that [Mr Carlier] will go downhill again if he stops treatment again.

...

1. Collateral information from the reports and assessments on [Mr Carlier]'s mental health all acknowledge a man who has a history of trauma, with unstable relationships and mood dysregulation. There are two current diagnoses, although [Mr Carlier] did not agree with the [mental health condition] diagnosis. However, [Mr Carlier] did advise that the DBT had helped and wished to continue seeing [Ms Z]. It must be noted that all reports recommended substantial therapeutic involvement, and a maintenance of mental health support, in order for [Mr Carlier] to continue his current level of mental health, and to continue improving.

...

1. The Family Consultant explained that she was there to talk with [X] about her family and [X] advised "I like it how it is right now". [X] named Mr and [Ms Botrel], [Y], [Mr Carlier] and [Ms F]. [X] advised that [Ms Botrel] is nice and kind and "can tell if feeling angry or sad". [X] advised that [Mr Carlier] was "fun and funny", [Ms Botrel] was "silly", [Y] was "funny and a bit annoying", and [Ms F] was "nice..fun to play with, she takes me to the pool as dad didn't want to".

2. [X] discussed attending [J] School, advising that she loves school, likes her teachers and friends, and that her favourite subject is maths.

...

1. [Y] advised that he loves being with Mr and [Ms Botrel] and is happy seeing [Mr Carlier]. [Y] further advised that kinder was good and his favourite things are toys and dolls. [Y] advised that he was sad and angry when people hurt him or try to throw things at him.

...

1. The children ran in after being out at the beach and excitedly chattered about going on the Ferris wheel. [X] wanted to keep chatting but settled down when she saw [Ms Botrel] doing noughts and crosses with [Y] and wanted to join in. [Ms Botrel] had suggested books and games and the children chose this game. [Y] asked for the Family Consultant to join in and everyone laughed about the Family Consultant being invisible. The Family Consultant heard voices and went to see if [Mr Carlier] had arrived. [X] ran out to see him and hugged him excitedly. She was happy to return to the room, however, as soon as she had hugged him. [Mr Botrel] came in and he began playing games with them. The children laughed a lot at playing with him. All members of the family were laughing and genuine affection and ease was observed... Despite being excited about her father being in the waiting room, [X] was happy to sit and cuddle into [Ms Botrel], commenting on the game between [Mr Botrel] and [Y]. Both Mr and [Ms Botrel] were attuned to the children's needs throughout and offered support, laughter, physical and verbal affection that was natural in nature. There were no concerns raised during the observation. The children were confident in expressing themselves and laughing...

...

1. [X] and [Y] are two young children who have suffered significant trauma within the early stages of their lives. They have been exposed to bush fires, COVID, parental separation, their mother's death, and an absence from their father. [X] has been diagnosed with ADHD, and [Y] is currently being tested for this. In addition, [Y] has issues with speech and toileting, and [X] has recently been diagnosed with [a medical condition]. However, given the children mention their mother rarely, it is clear that they retain significant grief and loss from her death, and nurture, stability, and safety are paramount to allow healing and properly understand the situation, rather than a currently unknown internal narrative. Of significant concern, relayed by all parties, is [X]'s palpable over-protectiveness of [Y], and the likelihood of her fear of losing him too.

...

1. Despite their issues, the children are lively, pleasant, and engaging, and demonstrated a delight in being interviewed. The engagement, however, was also noted by the Family Consultant to demonstrate the level of grief, when considering their physical closeness to the Family Consultant, including wanting to sit on her lap, and their requirement for stability to reduce anxiety regarding abandonment appears encompassing. ...

...

1. If the children were to remain in the care of Mr and [Ms Botrel], one of the main benefits would be stability for the children, who have seen so much change in their short lives. The children would, furthermore, benefit from a sustained connection to their primary caregivers for the last 2 years, and to their maternal family, where the connection to their mother is strong. The children would be able to remain having a close relationship with their father but within a safe manner, where there is oversight.

...

1. If the Court allows [Mr Carlier] to centre his prior behaviour in the context of PTSD, then the last year of mental health treatment, and [Mr Carlier]'s 3 years of a significant and violence free relationship, should be an indicator of his future behaviour. If prior behaviour is a predictor of future risk, then the treatment [Mr Carlier] has received, the cessation of drug and alcohol use, and a mature relationship all support a significant mitigation of future violent behaviour. Controlling and violent attitudes can clearly co-occur with PTSD, however, they tend to have a basis in abandonment and rejection due to shame, and an alleviation of these internal views through treatment have a significant impact, therefore, on this behaviour in the future.

2. If the children were to live with [Mr Carlier], they would benefit from a connection with their father and a close relationship with their paternal family. [Mr Carlier] regularly cares for his nephews and nieces, and this connection would support [Y]'s social issues, and may allow [X] to become a child again. [X] and [Y] would also benefit from the relationship with [Ms F]. However, whilst this is a benefit, this relationship is not a deciding factor. The children would also benefit from returning to their home town and old friends who can support them with their identity and support the transition. This transition would change the dynamics in their relationship with their grandparents, which may enable them all to fit into these traditional roles and allow the grandparents to behave as such without the need for daily challenges and discipline.

3. When considering [X] and [Y]'s best interests, there is a fine balance between the two households. Mr and [Ms Botrel] have a demonstrated ability to provide, nurture, affection, stability, emotional support, and capacity to ensure they receive appropriate supports. Mr and [Ms Botrel] have cared for the children, for a large amount of the last 3 years, and they remain the strongest connection to their mother. It is Mr and [Ms Botrel] who supported them during their mother's illness and, then, after their mother's death, and have been there to help them navigate the world without her.

4. However, whilst they have undoubtedly provided a stable, supportive and nurturing home for [X] and [Y], the length of time the children have been separated from [Mr Carlier] is due to legal and practical limitations for [Mr Carlier] in gaining access to his children, and should not be the defining factor in this matter. ... The Family Consultant is aware that this recommendation will be of significant distress to Mr and [Ms Botrel], however, the children have a right to have a strong relationship with their father, if there is safety present and a demonstrated change in prior behaviours. The children also, however, have a significant connection to their grandparents and maternal family, and there should be alternate weekends, school holidays, and special occasions shared between families in order for the children to thrive. This will, in time, allow Mr and [Ms Botrel] to become grandparents, and continue to build the special relationship they have with the children.

RECOMMENDATIONS

...

1. [Mr Carlier] be granted sole responsibility for the children

2. The children live with [Mr Carlier]

3. The children have time spend with Mr and [Ms Botrel] every alternate weekend, substantial time during school holidays, and a shared time for special occasions.

4. The children to remain with Mr and [Ms Botrel] until an OT, Speech Therapist, and Equine Therapy, or suitable therapeutic intervention, be found in or near [Town G], within reason.

5. Mr and [Ms Botrel] and [Mr Carlier] consider a parenting app to allow for communication regarding the children's education, health, and changeovers until the relationship has progressed.

6. Mr and [Ms Botrel] to be advised, and invited to, all the children's events of worth, for example, school concerts, sporting events, and other events that families attend.

7. [Mr Carlier] to discuss repairing the relationship with Mr and [Ms Botrel] with his therapist, which will support the children's best interests.

8. Mr and [Ms Botrel] to seek therapeutic support if required regarding this loss, and to enable them to begin communication with [Mr Carlier].

(emphasis added)

1. Ms L's report was an informed, thorough and sensitive analysis of a complex family situation. Ms L also gave oral evidence and she was a careful, impressive and responsive witness:[28]

MS HUTCHINGS: Now, [Dr DD]'s evidence was that the abstinence is required to maintain his sobriety, as I said, and he opined that testing of [Mr Carlier] is required for at least five years, being hair follicle testing with intermittent supervised urine drug screens. Do you have anything to say in relation to that recommendation, [Ms L]?

[MS L]: Well, I suppose we - we haven't seen any evidence of significant drug and alcohol use, which is what would be the concern. I appreciate there's a recommendation that there should be complete abstinence. I think if there's an occasional one drink at a special occasion, that wouldn't necessarily be of concern for me if it was, like, one drink. If - if there was to be regular and large amounts of alcohol consumed, that would be of concern. In terms of the length of time for testing, I think five years is probably a good recommendation. It might - it might be slightly excessive, but I think if that's what has been recommended and the court would agree with that, I would agree with that.

...

HS HUTCHINGS: ... Now, at the time you made the recommendation for the change of residence, you say in your report that it's finely balanced, or words to that effect....How finely balanced?

[MS L]: Very finely balanced, I believe. I think Mr and [Ms Botrel] have clearly offered them a lovely, nurturing, trauma-informed home and relationship. They've supported them through the passing of their daughter, through their grief, supporting them. They obviously attend to all their needs. ... But in terms of their relationship with him, how much they enjoy spending time with him, [Mr Carlier]'s substantial engagement with the specialist services that the children attend as well, I think that there could also be a very supportive and happy environment for the children with their father, too. So it is very - I think both homes are suitable for the children, quite substantially.

...

MS HUTCHINGS: Thank you, [Ms L], for grappling with it. In terms of the relationship with [Mr Carlier] though, if the children were to remain living with their grandparents, that's a relationship that could invariably be built upon and developed over time, and in a way that would allow the children to grow and develop themselves, vote with their feet in relation to that relationship, at a time that they wanted to, and a relationship that would have longevity, potentially into the future, because of the slow burn, if you like, in relation to how it's grown and developed. Would you agree with that?

[MS L]: Yes, I would agree. I would agree. I think that in the future if the children remain with Mr and [Ms Botrel], I think there certainly would be a time that they would vote with their feet, and want to live with [Mr Carlier], primarily, at some point in the future. Definitely.

MS HUTCHINGS: And that's a scenario that, given the risk factors that we know about in the fairly recent past, moving into this litigation, would that be a lower risk scenario then than simply a change of residence, at this particular point, when the context for change for [Mr Carlier] has happened under the spotlight and microscope of these proceedings?

[MS L]: I mean, I think a change of residence would need to be progressed slowly. ...

...

... I think, whereas the children might vote with their feet in the future, I think, again, that's not something that we should necessarily be looking at for these children, because if they're already experiencing, you know, significant concern about, you know, who will get hurt, really, in this matter. I don't think it's fair to necessarily leave that decision to them in the future.

MS BYRNES: I guess where my question was going was that if this is a finely balanced situation, as you say, but if in your view the balance falls in [Mr Carlier]'s favour, partly because as you said, he is a parent, and they've lost a parent, and my question was really directed at, the fact that, if that's an important factor, it's better it happen while they're young and can get the benefit of that, than happens when they're 16 or 17, do you agree with that?

[MS L]: Yes. I would agree.

...

MS BYRNES: But you say they've lost their mother, it's important that they be able to be cared for by their father, and so the balance for you falls slightly in that direction. Can you talk a little bit more about why that's important for these children? ...

[MS L]: I think this - the palpable fear of loss for these children, I think what they - for them, they need to have their parent. I think that even if we're not necessarily seeing it now, I think as they grow older, having that parent is incredibly important for them. I think that as time goes on, once they have managed to process their mother's death, to some extent, clearly it's always going to be there. We can't deny that. I think there will be that wish to have more time with their other parent. And I think it is important to remember that there has been that separation between the children and [Mr Carlier] for some time. So what we see in this attachment with the grandparents was also not a product of [Mr Carlier] not trying. I think for the children, having another parent is essential. And whilst I'm not saying that if the court states that they stay with Mr and [Ms Botrel], I'm not saying that that would be incredibly detrimental at all. Because I think they are wonderful carers for these children. I just think they need to have a parent, that they have the right to live with a parent, if it's safe.

...

MS BYRNES: They've had a fair bit of change in their little lives already. And did you see any evidence that they haven't coped with moves of houses and things, or can you comment on that?

[MS L]: I don't - it's not necessarily moves of houses that I could see. To me, what stood out was the death of their mother, primarily, and their fear of abandonment, and their fear of people leaving them.

...

MS BYRNES: ... So, is that consistent with the impression you got of him when you were seeing him?

[MS L]: Yes. It was. [Mr Carlier] discussed that with me as well. I think his understanding that a lot of his behaviours, or a lot of his problems, have come from, you know, significant and substantial trauma in childhood, has allowed him then to seek help. I think that significantly helped him. ... But yes, that was the impression I got, that he is willing to seek treatment with - regarding mental health, forever, if necessary.

...

MR GATES: So if the witness is saying he has only seen me for 27 minutes effectively how can he come to that conclusion. But in reality it's two minutes off 100 minutes. Does that present you with any concerns about the way [Mr Carlier] describes events that have occurred from his own perspective?

[MS L]: I think, you know, that there is a pattern of maybe [Mr Carlier] minimising or having a different perspective on things that do suit a - a more positive narrative for him.

...

MR GATES: ...You've described the observations where you said they delight in engaging with the father just to paraphrase. At that point in time, he had had a total of - from September to December - about seven overnights. Now, could it be that the delight, as it were, was no more than engaging with a parent with whom they've had fun interactions rather than a genuine test of how they would interact with him on a full-time basis?

[MS L]: I don't think so. No. I think their attachment - their ability to listen to [Mr Carlier], their ability to play together with him and enjoy that time with him and the ease in that relationship - was not just indicative of children who were having fun with a parent or a person.

...

MR GATES: ... And your idea that they're just going to say, well, we're going to move up and go to the country where there's a population of [several hundred] people is no more than speculation?

[MS L]: Absolutely. There's a potential for it. Absolutely. I think at that age, yes, they would have all those, you know, genuine friendships and probably activities. Very established friends. But there may - - -

MR GATES: So there's no likelihood then, is there?

[MS L]: Well, I - I said there's potential because, what they would also have, they would also have had all those years of spending time with their father in [Town G]. They would have all those years of building relationships and friendships with the children in [Town G] who were the children of [Mr Carlier]'s friends, who were their age, with their nieces and nephews there.

1. At the conclusion of cross-examination by counsel for the parties, I asked Ms L some questions, including the following:

HIS HONOUR: And what I'm interested in is why you say - and it was where you said in this case for these children, with the loss of their mother, it is crucial for their development to, as I took it, if it's safe, live with their father. Okay. Now, what I'm interested in is why you say that from a - if you like - a developmental point of view for these children in this case?

[MS L]:: I think that for - for their development, because they have lost one parent, I think for their development to be with their other parent and have that relationship with that parent and know that that parent isn't going to, you know, leave or abandon them. I think it's very much the case that - that for these children, it would be really appropriate to have a father and grandparents and cousins. I think for them a family unit is essential for them. And to be supported in being with one parent with the loss of the other one and being supported in that is - is important for their stability.

HIS HONOUR: All right. And then the observation about where you say in your report that there will be a time when it's likely that they will want to spend more time with their father and even to the point of change residence. Why do you say that? ...

[MS L]: Yes...I think that the reason why they have such an established relationship with their grandparents at the moment is because they didn't have contact with [Mr Carlier] for a substantial period of time. I think if after [Ms E] left that [Mr Carlier] had had every other weekend contact all that time, we would be seeing a very different scenario now. So I think the more time they spend with [Mr Carlier], the more it is likely they will build that attachment with him and want to live with him. So I can't say with certainty. But that - I think that - I think that's a very real possibility.

...

HIS HONOUR: Now - thank you. Another issue in this case that I expect I will have to address is [Mr Carlier] has - as Mr Gates has taken you to, [Mr Carlier] has been, at least on one view, very candid and frank about the extent of his emotional and verbal abuse on his partner, the mother of the children, and the children's exposure to that. But he has been steadfast in denying the occasions of physical abuse. ... But if I was persuaded that [Mr Carlier] had been physically violent to the children's mother, but has maintained a denial, whilst admitting really serious stuff in a verbal sense, ... what should I make of that? And if... I find that it has happened and he won't admit it, what does that change, given what he has admitted?

[MS L]: ...I think it depends....I think, given the issues [Mr Carlier] has had, you know, from the substantial significant childhood trauma and abuse, and the use of drugs and alcohol, I think it's, on the balance of probabilities, there probably was some physical abuse, as [Ms E] has advised....[Mr Carlier] may not remember or may, at this point, be substantially embarrassed regarding that...I don't think the fact that [Mr Carlier] is definitively saying that there was never any physical violence is something that is of significant concern to me, in terms of my recommendations.

...

(emphasis added)

1. Following my questions, the parties were provided with an opportunity to ask further questions or contradict any of my statements of the evidence or assertions of the family report writer in response to my questions. No party sought to do so.
2. I accept the observations and opinions of the report writer, and I give considerable weight to her recommendations. Ultimately, I do not follow her recommendations that the children should transition to living with Mr Carlier but her expert observations were of great assistance.

1. Evidence was also provided on affidavit by Mr Carlier's treating practitioner, Dr DD. Dr DD asserted, and I accept, that he has a particular expertise in addictive and/or substance abuse disorders and treatment. Dr DD's report concerning Mr Carlier included the following:

...I have been [Mr Carlier]'s treating practitioner since 04/11/2022[29] (our first appointment). During this time it has been my privilege to be involved in [Mr Carlier]'s care and to witness his determination, courage and immense resilience, demonstrated by his efforts to improve his personal health and to resume his parenting duties. [Mr Carlier] has shown commitment and a flawless dedication to his treatment regime, attending all of the various programs that have been recommended to him both by his treating health professionals and by the state. Most importantly he has demonstrated excellent insight and judgement into his condition, understands the aggressive nature of this and the need for his ongoing relationships with his treating practitioners.

I have been seeing [Mr Carlier] on a regular basis over the past two years. On my interrogation of [Mr Carlier] over this time I can confirm that he remains deeply resolved in his commitment to thrive and to continue to add to his gains. During this time he has developed a strong support network of treating health practitioners, family and friends. I have also included evidence below of biochemical monitoring which demonstrates the ongoing success of [Mr Carlier]'s recovery journey. It is well documented that after this amount of time the risk of relapse is very minimal and this would be further ameliorated by his established support network. [Mr Carlier] is presently in excellent health and takes no medications...

(emphasis added)

1. Dr DD was also cross-examined during the hearing. He gave evidence concerning Mr Carlier's drug use as follows:[30]

MR GATES: What did [Mr Carlier] tell you, if anything, about marijuana use for him?

[DR DD]: Well, basically, he came to me with that problem active. And one of the very first things we did is to tackle that problem and also, I guess, what is the larger problem at hand, which is addiction, essentially, which is what we did over the past two years, basically, is to manage that aggressive problem. Marijuana was a part of that.

MR GATES: Yes. And was your understanding that he was using a combination of medicinal marijuana and illicit marijuana?

[DR DD]: There was a referral done to help him with accessing medicinal marijuana.... So for the two years I've known him, he came to me initially with marijuana being a problem. It really wouldn't have mattered what the agent was. It was a case of, you know, the issue of addiction being at large. He - we took a five-pronged approach, I guess, to his treatment, which he embraced. So part of that was pharmacotherapy and, you will notice, benzodiazepines was one option that I used, and then medicinal marijuana was another option that I suggested. But happily, within a couple of months or so, he was using none of the above, in part because he had the good insight to realise that, you know, these are not a long-term option. His judgment improved over that time as well, and he realised that we're not getting anywhere by substituting, so he was good on that front, too. He also attended, I might add, some of my work that I do, men's behaviour change and addiction at a local - it's almost like an NA group. So he attended all of that too. And so I think he realises he can't really dabble with these things either as part of a treatment or recreationally at all. And to his credit, we tested him a dozen times or so over that two-year period, and his tests by and large came back clear. I think one of them was tainted, but I can almost promise you that that would have been a cross-reaction because of an antidepressant that I put him on.

...

MR GATES: Did at any stage, [Mr Carlier] consult you in relation to any past or present anger management issues?

[DR DD]: Yes, indeed. So he - he attended one of the programs that I was involved in locally. We spoke less about the details. I also think, again, that is part of the addiction package. Whatever the reason for their addiction, typically, you know, it is untreated. It could be a variety of things. It could be ADHD, depression. It...it could be anxiety or post-traumatic stress disorder. It really doesn't matter. They tend to use their addiction as a crutch. So, often, it is all part of the one problem. And so the treatment of anger management almost invariably involves looking at addiction and substance misuse.

MR GATES: What about [a mental health condition] contributing to anger management issues?

[DR DD]: I am not that familiar with that little area. I am sorry.

...

MR GATES: Okay. At any stage during those sessions, did [Mr Carlier] admit to you being violent to his previous domestic partners?

[DR DD]: He did not.

MR GATES: Did he admit being verbally abusive, that is swearing loudly, yelling loudly on a regular basis, in his last relationship?

[DR DD]: I understood there was discordance there, but that is only because... I guess I was asking about his court issues, and what exactly the nature is. So I gleaned a little bit of information that something along those lines was the issue. I didn't directly interrogate him on whether that was true or false.

1. He also gave the following evidence in response to my questions:[31]

[DR DD]: So [Mr Carlier] has done very well. He's driven by his very strong desire to be with his children again...I also, if I may mention, that I think if things didn't go his way, he would be at risk of being in trouble because he has this blind faith at the moment or gratitude that, you know, if he keeps doing the right thing, putting one foot forward each day, that the day will come when things will fall in place for him. So he's exceptional in that, you know, he has come this far in terms of abstinence. I also think that if he can do it during a time when everything is not going his way, so, he's without his children, you know, he has got all these expenses, etcetera, if he can - if he abstain during this time, then I think when things start to pick up for him, he will go from strength to strength...I think the biochemical monitoring would take the form of urine tests, which may nip a problem in a - in the bud, so to speak, where you can catch out active addiction sooner than the three-monthly follicle tests which are exceedingly accurate...

...

And I think that needs to go on for about five years.

(emphasis added)

1. A second report regarding Mr Carlier by his Mental Health Social Worker, Ms Z, was also in evidence, dated 22 July 2024. This report was described as an 'update to the previous report' and Ms Z did not review any new materials concerning the matter in preparation of the second report. Her report observed:

[14] [Mr Carlier] has continued to attend therapy. Such engagement has continued to require significant time, motivation, organisation and financial cost. The pattern of engagement with the writer is consistent, notwithstanding the need to cancel to attend contact visits or court proceedings.

[15] [Mr Carlier] has presented as an open and willing participant in his own therapy. It remains the writer's view that [Mr Carlier] genuinely participates in his therapy as evidenced by open discussion of his mental state, ability to provide examples of applying skills learned in therapy to particular situations, relevant questions about the application of various skills, being able to produce an agenda for discussion in therapy and willingness to consider and discuss suggestions.

[16] [Mr Carlier] has a history of seeking psychological and mental health care from a range of services within the community (General Practitioner, telehealth psychological counselling, group services, individual therapy). [Mr Carlier] has a demonstrated history of seeking such service of his own volition and has demonstrated capacity to select appropriate services.

[17] It is the view of the writer, that [Mr Carlier] maintains a remission of the most pronounced and distressing of the symptoms of [a mental health condition], as supported by the clinical observations, and contrasted with history provided by [Mr Carlier] and documents previously referenced.

...

[21] It is possible that [Mr Carlier] will continue to stabilise in his mental state generally. As previously discussed, [Mr Carlier] has a number of factors that support an optimistic prognosis for continued recovery including stable partner, friends and extended family relationships, ability and willingness to engage in a range of healthy occupational activities (care of children in his extended family, camping renovating, fishing, etc), having developed a range of psychological strategies to manage stressors and an ability to set realistic goals for himself to work towards.

(emphasis added)

1. When cross-examined during the final hearing, Ms Z gave the following evidence regarding Mr Carlier's mental health:[32]

MR GATES: His relationship with [Ms F] would be a stabilising influence in his life. Do you agree with that?

[MS Z]: Yes.

MR GATES: And if [Ms F] and him separated, do you have any view about how his stability might be affected?

[MS Z]: I've mentioned in my report that that's one of the prognostic factors that gives me cause for concern, but I have no way of knowing exactly how [Mr Carlier] would respond, but I based my concern on his history of very catastrophic responses to relationships ending and also one of the diagnostic criteria with [the mental health condition] can be that fear of abandonment or rejection sensitivity, so we're always on watch for that with people who have had [the mental health condition] structure that may be particularly painful for them to separate, but I've also weighed that against [Mr Carlier] having gained more skill, I think that he has ever had, to manage his emotions, to sit with distress and to form other healthy relationships that are protective as well, so I would give it more weight if he didn't have any other stable relationships in his life.

...

[MS Z]: We quite regularly discussed his verbal statements and emotional abuse, and [Mr Carlier] went further in his discussions about the impact that he thought that might have on the children, and his understanding of how that might be abusive behaviour and how he felt about that behaviour, and his fear of what impact that may have had on the children at the time. His guilt around that sort of conduct.

...

MR GATES: But there has never been any detail of what words were said or was there to you?

...

[MS Z]: I can bring up my original notes but I don't have any direct quotes off the top of my head that I can give you. I've got a note here that says that:

[Mr Carlier] reported that he was arguing all of the time. It was out of control. It was verbal. It was never physical. It was as verbally brutal as one could get. It was all about winning...

...

MR GATES: This is paragraph 41 of your first report:

[Mr Carlier] acknowledged that his initial engagement with the DBT skills group was superficial and for the purpose of complying with the court's requirements.

That's what you put in your report?

[MS Z]: Yes, that's his - that's his characterisation. It's not mine.

MR GATES: So if he says that he's there on a superficial basis to comply with the court's requirements - - - you're saying that that's not accurate?

[MS Z]: I'm saying that I observed a genuine engagement that - that came in his participation in the DBT group.

MR GATES: And you could be wrong about that, couldn't you, in that it's a process that's going to be reportable back to court? Do you acknowledge that possibility or not?

[MS Z]: I've observed many, many people attend DBT skills groups over my years of providing and being involved in DBT skills groups, and people come for many reasons for DBT skills group. For people who don't have a genuine motivation to take advantage of the actual program, they tend to not participate. They tend to not share. They tend to not take on board the skills....And I found [Mr Carlier] - I would characterise him as having a genuine participation in the DBT skills group throughout the program. And I base that on his willingness to share how he was using skills, his engagement with the material, asking questions, challenging, sometimes, some of the material, sharing observations and making comments and suggestions that were useful and valued by other class members.

...

MS HUTCHINGS: ... given [Mr Carlier]'s torrid trauma history, and given the serious nature of the issues that has brought him to you, I am going to ask you again, though, is there still a lot to work on?

[MS Z]: ... I considered then, that in DBT, we were targeting the things that we needed to be targeting. And we were just starting to - to do some of that targeting. But it is not incredibly necessary, or urgent, that those things have to be targeted or continue...

...

HIS HONOUR: ... If we assume that [Ms E]'s description to the social worker that she saw not long before she died, where she made a statement and made a will saying, "I don't want my children to live with my partner".... So I've got her description in 2021 of having lived with an insight less, abusive man, predominantly constant verbal abuse, but with instances of physical abuse. So we've got 2021, I've then got him in 2022, '23, '24. And I want to know, am I dealing with the same man now in that context?...From your perspective, what have I got? How different is the man, or is he the same?

[MS Z]: I would say this is the difficulty with [the mental health condition]. My clinical impression is that we have a remission of the symptoms. It's not unusual in [the mental health condition], particularly at the age that [Mr Carlier] is at, we would actually expect remission. And non-remission of symptoms is more the exception rather than the norm... But where I come at my assessment now and over my engagement with [Mr Carlier] is that those symptoms are not present to an extent ...We don't have the level of symptoms that we once had. It's fallen under a subclinical threshold at the moment which I would describe as a remission. And we have, at this point in time and over the time that I've been involved with [Mr Carlier], a very intense stressor upon him. He's not with his children as he wishes to be, he's involved in the court process which is, I'm sure you're aware, a very difficult and ongoing process. It presents someone with a fairly significant long-term stress in their life. That's where we would see more symptoms appear. And yet we still see this continued pattern of relative stability compared to where he was.... And we're just not seeing that over this period of time which adds weight to the idea that the symptoms may have remitted.

...

HIS HONOUR: ... I know you can't predict the future, and I'm expected to, but do you have a concern about these children in the care of that man as you know him today?

[MS Z]: As I know him today, no. My concern is, I guess, mitigated by a few things. One is that he has stable relationships in his life that are providing a very limiting effect on the symptoms that he has. I think he's also demonstrated to me that he's developed some genuine insights into children's development and also the impact of his own emotions on the children's development. I've heard him reflect with quite a bit of shame and guilt about those past big outbursts of angry behaviour and how that sets up a model, ... And I feel that some of those discussions that we have had have been very genuine and very insightful. And I think they're newer learnings ...

(emphasis added)

1. I found Ms Z to be a careful and informed expert therapist and witness. I accept her opinions and observations. I am satisfied that at this time the most significant symptoms of Mr Carlier's mental health condition are in remission and likely to remain so.

1. I am satisfied that I should only make findings about factual disputes that are essential to, or that significantly inform, the orders that I should make. It is common ground that I should make orders that are in the best interests of the children.
2. It is necessary to make findings about past events to the extent that past events inform likely parenting skills and risks to the safety and welfare of the children in the future. Past events are looked at, or examined, as part of the process of grasping the nettle of making an assessment of the likelihood of events, good and bad, in the future.

1. The evidence of the children's reaction to meeting Mr Carlier after a long absence, as observed by Ms M and by the initial contact supervisors (recited earlier), was uncontroversial and I am satisfied demonstrates a strong and secure attachment between Mr Carlier and the children. I accept Ms L's evidence and expert opinion that the children's reaction when seeing Mr Carlier demonstrates attachment, and significant attachment, rather than merely being pleased to see someone who might be nice to them. Since the observations of Ms M, the observations of the supervising service, and the observations of Ms L, the children have continued to spend time with Mr Carlier, and I am satisfied that their relationship and attachment to him will have grown in the meantime.
2. I am satisfied that the children have a strong and secure attachment, which can also be described as a close and loving relationship, with both of the Grandparents. The relationship with the Grandparents is not in a vacuum but relates to their good care of the children over a number of years and their genuine grandparental love and affection. But the relationship also relates to the circumstance that would be obvious to the children, that the Grandparents were the parents of Ms E and hold a similar, although different, love and affection for her as they do. The children observed the close and affectionate relationship between their mother and the Grandparents. I infer that the children observed the Grandparents caring for and assisting Ms E in her illness and in the lead up to her death. The children have a comfort and love and affection for the Grandparents and, in their care, maintain a sense of connection to their mother. I accept Ms L's evidence that the process of grieving and coming to grips with the death of their mother is not complete.[33]
3. I am not satisfied that the long hiatus in the children spending any time, even supervised time, with Mr Carlier was reasonable, or that it assisted the children deal with the loss of their mother. However, I do not regard the Grandparents' role in preventing that time and relationship with the children's surviving parent as mala fides. Their reaction to learning of what Ms E had told Ms T, and their observations of the tumultuous relationship, and emotional dysregulation of Mr Carlier, with their grief at the loss of their daughter and their grief at dealing with the bitterly unhappy relationship that their daughter endured with Mr Carlier in the latter parts of it, inevitably contributed to the very human feeling of a need to "protect" the children from Mr Carlier and, I am satisfied, to follow what they saw as what Ms E wanted.
4. There was a real question mark in the proceedings about the Grandparents' ability to support a relationship between the children and their only surviving parent, Mr Carlier. However, the evidence demonstrates that they have always followed court orders, since they were made, and, I am satisfied, will always follow court orders. The strength of the children's observed relationship with Mr Carlier also demonstrates that they have not involved the children in their own antipathy to Mr Carlier. These circumstances compel me to find that the Grandparents will, in the long run, support, and follow court orders, that support the children's relationship with Mr Carlier.
5. As recited, I found Ms Z to be an expert witness with a profound understanding and expertise in the treatment of both PTSD and the other mental health condition. Ms Z's evidence, written and oral evidence in cross-examination, was compelling. Ms Z's observations in her first report of mid-2023 were careful, but qualified, in her opinions supporting Mr Carlier in his recovery. Her second report, a year later, and her evidence before me were both careful and compelling. With the assistance of Ms Z's opinions being tested in cross-examination, I am satisfied of the soundness of her conclusions and observations about Mr Carlier.
6. I am satisfied that Ms Z has not simply adopted a supportive and sympathetic stance to support her patient and her own work. I am satisfied that Ms Z's conclusions, essentially that Mr Carlier is not a safety risk to his children and that the major symptoms of his mental health condition are in remission and that he is genuinely committed to a monitoring and a continual treatment of his own mental health, are genuinely and properly founded in her own very significant interaction with Mr Carlier, as described below under the heading of '[Mr Carlier]'s therapies and treatments'.
7. In these circumstances, the risk of the children being exposed to family violence or to emotional deregulation of Mr Carlier when in his care is not non-existent. But it is a small risk. Without Mr Carlier dedicating himself to that therapeutic process and attending therapy over, and over, and over as required, there would be a significant and substantial risk to the welfare of the children when living or staying with Mr Carlier. Some care must be taken to ensure that the children, who have lost their mother, do not indirectly suffer the loss of their relationship with their father due to the loss of his childhood that he suffered.

1. I am satisfied that in the latter parts of the relationship between Mr Carlier and Ms E that there was significant family violence by Mr Carlier to Ms E. I am satisfied because of Mr Carlier's concessions, including to the effect 'think of the worst verbal abuse you can and it was worse than that', that there was significant family violence between Mr Carlier and Ms E. But I am not satisfied on the balance of probabilities, or have a comfortable satisfaction, that the events in Ms E's statement to Ms T actually occurred as described, or that the events and incidents described are the full context. Ms E's account to Ms T did not include or refer to, at all, any drug use by her during the relationship, or any verbal abuse and/or swearing by her to Mr Carlier. The Grandparents, uncontroversially, described Ms E and Mr Carlier verbally abusing and swearing at each other.
2. Mr Carlier denied the physical family violence in probing cross-examination and on affidavit. His denials had a verisimilitude to them. His denials, or the believability of those denials, was reduced by his assertions about "[his nickname]" which I do not accept. Nonetheless, I have resolute denials, and those denials contradicted by the unsigned statement of Ms E to Ms T. I accept Ms F's evidence that Ms E complained to her of the continuance of the relationship between her and Mr Carlier long after the initial separation between Ms E and Mr Carlier and her moving to live nearby the Grandparents, and at a time Mr Carlier was maintaining that that relationship was on hold. Save for broad questions about Ms F's credit, that evidence was not challenged. I accept that Ms E was troubled and upset by Ms F's role in Mr Carlier's life and hence, inevitably, Ms F's likely role in the children's life. This is not a criticism of Ms E, as she dealt with the circumstances of her imminent death and, I infer more significantly to her, her children's loss of their mother in their lives. Such upset is an entirely human, and perhaps even inevitable, feeling in the circumstances that Ms E had to deal with.
3. Mr Carlier made very significant descriptions of severe family violence, but family violence that did not involve physical violence. In this case, I am not satisfied that there is necessarily a dichotomy between those different types of family violence. I am satisfied that repeated, severe verbal abuse is very serious family violence. Notwithstanding that observation, balancing all of the evidence, I do not have a comfortable satisfaction that the events of physical violence described by Ms E to Ms T actually occurred. However, the events described by Ms E to Ms T are not implausible and I do not find that Ms E is or was untruthful, or that the alleged events of physical violence did not occur, as Mr Carlier asserts. I am unable to make a finding one way or the other. In this case, I am not satisfied that anything turns on an attempt to differentiate and extrapolate the difference between serious and ongoing verbal violence and incidents of physical violence. There was significant family violence, and this will have impacted on Ms E and the children.
4. However, I am satisfied that Mr Carlier has learnt much and enjoyed significant rehabilitation for a number of reasons. He now accepts that he was violent to Ms E, and I am satisfied, has deep regret and guilt about that. I am so satisfied because of his demeanour in the witness box and his presentation to the family report writer and to Ms Z.
5. Dr DD and Ms Z, in different words, asserted that Mr Carlier was now in a position where he was able to self-assess that his stress and/or effect of his past was such that he needed the assistance of further mental health support and treatment or therapy, and that he likely would seek out that further support or treatment or therapy. I accept that evidence.

1. I refer to and repeat my recitation of the extensive therapy as at the time Mr Carlier saw Ms L, discussed earlier. Since then, he has undertaken further therapy with Ms Z in the form of five individual therapy sessions from 29 November 2023 to 19 June 2024.

1. I turn now to the application of the law to those facts recited earlier. I must determine what orders to make in this matter on the basis that the best interests of the children are the paramount consideration. The following headings are a paraphrasing of the provisions of section 60CC(2), being the primary factors that I must consider when making parenting orders.

What arrangements would promote the safety of the child & each person

1. The Grandparents and the ICL now propose that the children spend time with Mr Carlier for weekends and week blocks of the school holidays. How the safety of the children was not at risk, at that time, but would be if the children lived with him was not demonstrated. I repeat that I accept the substance of Ms Z's evidence, including what has been recited earlier.

1. The children's views are as stated in the family report, recited above. Because of the children's ages and the circumstance of them continuing to deal with their own grief at the loss of their mother, I regard their wishes as reflecting their relationships with their grandparents and their father and place significant weight on them on that account, but only a little weight on them as determining in which household they should live.

Developmental, psychological, emotional and cultural needs of the child.

1. I am satisfied, and by the end of the case it did not appear to be in dispute, that the developmental, psychological and emotional needs of both of the children were to have a strong and ongoing relationship with their grandparents and their father. I am not satisfied that to have a strong and ongoing relationship with their father, they need to live with him or in his household. I am not satisfied that to have a strong and ongoing relationship with the Grandparents, they need to live with them or in their household. And that is so notwithstanding the 4 hours of travel by car between the respective households.

Capacity... to provide for...developmental, psychological, emotional & cultural needs.

1. I am satisfied that, in different ways, both households have the capacity to provide for the developmental, psychological and emotional needs of the children. The issue of cultural needs did not arise in this litigation. The Grandparents have the capacity to warmly and kindly care for the children's day to day and emotional needs and to care for the children in a different way to how their father, Mr Carlier cares for them, and would care for them if they lived with him. In this case, it is unnecessary to attempt to rank the respective care of the competing households as one being more caring, or better, than the other. The children will be cared for very well in either household.
2. As recited earlier, I was troubled at the capacity of the Grandparents to genuinely understand in their hearts the children's need for a relationship with their father. However, I am satisfied they will comply with court orders, and I am satisfied that they have been able to, and intend to, protect the children from their own personal feelings about Mr Carlier.
3. I am satisfied that Mr Carlier will be profoundly disappointed if the children are not to live with him and may see that as a continuance of the injustice of the past, where he was prevented from seeing the children at all. However, taking into account the extensive therapy he has undertaken and his love for the children, I am not satisfied that there is a serious risk that Mr Carlier's disappointment, if the children do not live with him, will not flow over into his sharing that disappointment and emotional upset with the children, and hence doing emotional harm to them.

Benefit...to have a relationship with the child's parents & other people & where it is safe.

1. The current section 60CC(2)(e) is unequivocally non-hierarchical in terms of relationships. That is, there is no presumption that it is in the child's best interests to live with a parent in preference to other significant people in their life.
2. The evidence is overwhelming, and it is now common ground, that there is real benefit to the children having a relationship with Mr Carlier. But the children do not need to live with Mr Carlier to enjoy and benefit from a relationship with him.
3. Mr Carlier never challenged that there was a benefit to the children having a relationship with the Grandparents. I am satisfied that there is a benefit to the children of a relationship with the Grandparents. The children's relationship with the Grandparents can and does include an aspect that cannot be included in their relationship with their father, Mr Carlier. That is, that at a time of living with the grief and difficulty of the death of their mother, they maintain a connection with their mother by their shared (but different) grief with their grandparents, their mother's parents. That connection, at this time in their lives, is a real benefit to their relationship with the Grandparents.

Anything else that is relevant to the particular circumstances of the child

1. I refer to and repeat the observations of the two family report writers, recited above, that deal with the children's grief at the time of the reports.[34]
2. In this case, the grief that all parties and the children deal with from Ms E's death is a significant matter. These children suffered significant trauma and loss. They were exposed to, at least, very significant verbal family violence between their parents. They had to endure or negotiate their mother's medical diagnosis, therapy, remission and then return of the illness, then their mother's suffering and death. Then, without the support of their father, to whom they were attached, they endured the absence of their mother from their lives. The children then endured the absence of their father from their lives over a long period. They have endured the limited, more ordinary, time with their father until trial.
3. But the children had the support of their maternal grandparents, to whom they are strongly attached. They share with those grandparents the strong affection of their bond with Ms E and the shared grief of dealing with her death and absence. The expert observations about the depth of the children's continuing grief were undisputed. For the children to now move to live with their father, and not their maternal grandparents with whom they have lived from before their mother's death, would be a further loss in their lives.
4. I am also satisfied that Mr Carlier also suffered grief from the illness and death of Ms E and, in part, that grief involves or includes his attempt to understand the grief of his children. His grief may well be more complicated than the enduring grief of the Grandparents, but it is unnecessary to make any further findings in that regard.

1. The children have a multitude of special needs and receive significant and carefully organised therapies whilst living with the Grandparents. I am satisfied that eventually, and one way or another, any necessary therapy would be organised for the children if they were to live with their father. But the extensive and significant therapies are already in place and moving to live with their father would interrupt the steady progress of those therapies.

1. The children are settled and doing well enough at their school, organised and facilitated by the Grandparents. Notwithstanding that many children that change schools for various benign reasons, like families moving because of parental work or housing opportunities, to change schools, as well as change therapists, as well as move from their known environment of living with their grandparents to live with their father would be another loss for them. That loss of their school, friends, and environment, would be minor in the scheme of things compared to the loss of living in the environment with their grandparents with the shared connection to their mother, but in the circumstances, is not insignificant.
2. In all of those circumstances, to move from living with their grandparents to live with their father, would be both a gain for them, that is to live primarily with a parent, and a loss, that is the loss of living with the Grandparents in the settled circumstances of their lives and the shared link and affection for their mother. Those losses and gains must be balanced in the determination of where the children should live.

1. To the extent that there was some faint suggestion that living in the suburbs of a major capital city was necessarily more advantageous, or superior, to living in a country or regional town, I reject such assertion as it is without evidence and, to my mind, appears to be founded merely on a stereotype found in capital city populations.
2. The competing parties by and large conducted the case within the parameters that the children should live within their household and spend half school holidays and one weekend in four during school term with the other household. I am satisfied that was because of a practical recognition of the burden upon the children and the parties of the significant travel involved.
3. However, I was not taken to any reason why the school holidays must be, or could only be, in provisions of half and half. I am satisfied that for one household to have a larger part of the school holidays than half, although not agitated by the parties or expressly raised with them, is broadly within the parameters of the dispute between the parties. Each seeks that the children live in their household for the block period during school term, interrupted by one weekend in four with the other household. I am not satisfied that in this case the time-honoured and usually practical and effective regime of equally shared school holidays is appropriate.

1. I refer to and repeat my observations made earlier in these reasons. There is no risk of the children being exposed to family violence in the Grandparents' home. There is only a minimal risk of the children ever being exposed to family violence at changeover between Mr Carlier and the Grandparents. There is a small risk of Mr Carlier's mental health relapsing and the symptoms of his mental health condition reappearing. Were that to occur, there is a small risk of the children being exposed to intimate partner family violence within Mr Carlier's home. Were his relationship with Ms F to end, that risk would be increased. I am not satisfied there is any risk of Mr Carlier being directly violent to the children.
2. But because of the extensive and remarkable therapy Mr Carlier has undertaken, doing the best I can, I am satisfied that that is only a small risk. I am satisfied that in the event of significant adverse events, Mr Carlier would again seek and continue with professional assistance. I am satisfied that Mr Carlier would do so because he is an intelligent man and has insight into his own mental health and personality as week as his love and care for the children.

1. In this case, the restrained antipathy between the Grandparents and Mr Carlier and the practicalities of how day to day decisions merge with long term decisions in the household where the children live means sole decision making with an obligation to consult should rest on the household where the children will live.

1. The family report writer, Ms L, crisply summarises the major advantages of Mr Carlier's position and of the Grandparents at [97]-[102] and those observations bear repeating:
   1. If the children were to remain in the care of Mr and [Ms Botrel], one of the main benefits would be stability for the children, who have seen so much change in their short lives. The children would, furthermore, benefit from a sustained connection to their primary caregivers for the last 2 years, and to their maternal family, where the connection to their mother is strong. The children would be able to remain having a close relationship with their father but within a safe manner, where there is oversight.
   2. If the Court accepts [Mr Carlier]'s narrative, it is evident that [Mr Carlier] exhibited a pattern of unstable mental health, relationship difficulties, drug and alcohol use, and interpersonal issues, causing fracture within relationships and maladaptive coping mechanisms. The Court must also, then, accept that [Mr Carlier]'s behaviour lies within the context of an extreme trauma at a developmentally crucial age, which is likely to have significantly changed his internal narrative and ability to view the world as safe. [Mr Carlier]'s acknowledgement of significant verbal arguments, although blaming [Ms E] in part, provides some acceptance of behaviour that was not appropriate to expose the children to. [Mr Carlier]'s view that he was a good father who did bad things does not necessarily translate, however, his understanding of the impact of family violence on children may not have been centred on within the Men's Behaviour Change Program. [Mr Carlier]'s narrative that [X]'s ADHD diagnosis and behaviours are likely due to trauma do not explain how her behaviours began whilst living under his care and may be due to exposure to verbal violence, and it is imperative that [Mr Carlier] seek to understand the impacts of such parenting and ensure repair.
   3. If the Court allows [Mr Carlier] to centre his prior behaviour in the context of PTSD, then the last year of mental health treatment, and [Mr Carlier]'s 3 years of a significant and violence free relationship, should be an indicator of his future behaviour. If prior behaviour is a predictor of future risk, then the treatment [Mr Carlier] has received, the cessation of drug and alcohol use, and a mature relationship all support a significant mitigation of future violent behaviour. Controlling and violent attitudes can clearly cooccur with PTSD, however, they tend to have a basis in abandonment and rejection due to shame, and an alleviation of these internal views through treatment have a significant impact, therefore, on this behaviour in the future.
   4. If the children were to live with [Mr Carlier], they would benefit from a connection with their father and a close relationship with their paternal family. [Mr Carlier] regularly cares for his nephews and nieces, and this connection would support [Y]'s social issues, and may allow [X] to become a child again. [X] and [Y] would also benefit from the relationship with [Ms F]. However, whilst this is a benefit, this relationship is not a deciding factor. The children would also benefit from returning to their home town and old friends who can support them with their identity and support the transition. This transition would change the dynamics in their relationship with their grandparents, which may enable them all to fit into these traditional roles and allow the grandparents to behave as such without the need for daily challenges and discipline.
   5. When considering [X] and [Y]'s best interests, there is a fine balance between the two households. Mr and [Ms Botrel] have a demonstrated ability to provide, nurture, affection, stability, emotional support, and capacity to ensure they receive appropriate supports. Mr and [Ms Botrel] have cared for the children, for a large amount of the last 3 years, and they remain the strongest connection to their mother. It is Mr and [Ms Botrel] who supported them during their mother's illness and, then, after their mother's death, and have been there to help them navigate the world without her.
   6. However, whilst they have undoubtedly provided a stable, supportive and nurturing home for [X] and [Y], the length of time the children have been separated from [Mr Carlier] is due to legal and practical limitations for [Mr Carlier] in gaining access to his children, and should not be the defining factor in this matter. If [Mr Carlier] were still using drugs and alcohol, had not sought, and sustained, mental health treatment, and had not attended programs addressing family violence and parenting, recommendations would be more likely to be for the children to remain with their maternal grandparents. The Family Consultant is aware that this recommendation will be of significant distress to Mr and [Ms Botrel], however, the children have a right to have a strong relationship with their father, if there is safety present and a demonstrated change in prior behaviours. The children also, however, have a significant connection to their grandparents and maternal family, and there should be alternate weekends, school holidays, and special occasions shared between families in order for the children to thrive. This will, in time, allow Mr and [Ms Botrel] to become grandparents, and continue to build the special relationship they have with the children.

1. The opinion within that, "the children have a right to have a strong relationship with their father, if there is safety present...", is entirely consistent with the objects and principles recited in section 60B of the Act as it was at the time of the report and with the provisions of the CRC 1989 recited earlier.
2. Balancing all of the considerations in this case, and all of the section 60CC factors, I am satisfied that it is in the best interests of the children to continue to live with the Grandparents, but provided they are able to have a strong and continuing relationship with their father, Mr Carlier. Although the potential risks of harm to the children in Mr Carlier's household are, to a small degree, greater than in the Grandparents' home, that circumstance does not significantly inform my decision.
3. The circumstance that the children have suffered a number of significant losses in their life, and most significantly, the loss of their mother, compels me to place very significant weight on the avoidance of further significant loss for them. I also place significant weight on their being settled living with the Grandparents, and being able to live in a household that in a real sense shares the grief and loss of their mother.
4. In all of those circumstances I am satisfied that the children should continue to live with the Grandparents, and that the Grandparents should have sole parental responsibility for long term decisions, provided that Mr Carlier is consulted, and his input is considered. Those decisions will likely relate to choice of secondary school and, potentially, medical treatment of the children.

Different orders within the parameters of the dispute

1. Ms L's observations about the children's likely need to have the normalcy of living with a parent is a matter that significantly weighs upon me. It is a matter that of itself contends for the school holidays not being shared equally between the households, but for the children to spend a greater part of the school holidays in their father's household than in the household where they would normally live, with the Grandparents.
2. Hence, I have adapted the orders pressed by the Grandparents to provide for significantly more than half of the school holidays to be spent in the household of Mr Carlier. At the conclusion of the trial, I ordered that until further order, the children would spend one half of the school holidays with each household. The September/October 2024 school term holidays and the last long summer school holidays would have been the first occasion for that to occur. I infer that adjustment for the children and the respective households went well enough. I am satisfied it is time for the children to spend more than half of the school holidays in the household, of the two important households, that they do not live in.
3. In cross-examination, Mr Botrel was open to the concept of time during school term being fortnightly rather than four-weekly. I am satisfied that was a genuine openness. I am satisfied that Mr Carlier copes more easily with the significant travel that has been involved to spend time than the Grandparents have or will. Nonetheless, the agreed roughly midway changeover point, is of considerable travel and inconvenience for everyone. I am satisfied that Mr Carlier should have the option of having the additional time of a weekend during school term, not more frequently than fortnightly, if he chooses. Hence, I have drafted the order along the lines of the interim orders as made at the end of the trial for fortnightly school term weekends with Mr Carlier, but being realistic as to the long term demands upon his household and the children, that further weekend is to be at Mr Carlier's election, because he may not be able to financially, or otherwise, manage that time and the practicality of the frequency of it on alternate weekends. Further, Mr Carlier will have the option on the third weekend of the four week school term cycle to collect the children from school rather than the agreed mid-way changeover point.

1. There is a small risk of Mr Carlier relapsing to drug and alcohol abuse. But it is not nil or no risk. I am satisfied that the risk is considerably less than that pressed by the Grandparents and the ICL, but it is still not a nil risk. The circumstance that Mr Carlier, in circumstances where he cannot have expected a further HFT to be ordered to be undertaken (it was my idea, and not pressed by any party), undertook a further test that was clean of all illicit substances and heavy alcohol consumption demonstrates his circumstances at that time.
2. The Grandparents had also sought orders that Mr Carlier not consume alcohol in excess of .05 BAC when the children were in his care. In the circumstances where I was not then satisfied that a person with a past alcohol problem can appropriately judge whether they are or are not over .05 BAC on the go so to speak, I raised during the hearing whether it should be a simple "no alcohol" consumption by Mr Carlier, and Mr Carlier readily agreed. His ready acceptance of that proposal was something I also took into account, as to risk of relapse.
3. In the circumstances where it is the Grandparents that assert there is a continuing problem, or risk, of drug and alcohol abuse, and there being not much evidence of the financial circumstances of either household, I am satisfied that the expense of the further HFT, that is necessary to mitigate the small risk, should be the expense of the proposing party, that is, the Grandparents. I am satisfied that is in the interests of justice, notwithstanding that the evidence is that they financially support the children and are unlikely to receive child support. That they would be responsible for such further testing as they nominate in writing on no more than one occasion in each twelve months, in the context of their antipathy to Mr Carlier, is a matter that mitigates the risk of the HFT being used merely as a means to inconvenience or trouble Mr Carlier.
4. Those are my reasons for the orders I have made.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

• Outline of case filed 13 August 2024;
• Amended Initiating application filed 16 July 2024;
• Affidavit of Mr Carlier filed 22 July 2024;
• Affidavit of Mr Carlier's mother filed 22 July 2024;
• Affidavit of Mr Carlier's partner filed 22 July 2024;
• Affidavit of Mr Carlier's Mental Health Social worker filed 22 July 2024;
• Affidavit of CC Contact Centre filed 23 July 2024; and
• Affidavit of Mr Carlier's General Practitioner filed 15 August 2024.

• Outline of case filed 12 August 2024;
• Amended response to initiating application filed 18 March 2024;
• Affidavit of the Grandmother filed 5 August 2024;
• Affidavit of the Child and Family Practitioner at U Services filed 5 August 2024;
• Affidavit of Mr Carlier's s previous Psychologist filed 6 October 2022;
• Family report of Ms M filed 7 November 2022;
• Affidavit of Mr Carlier's Psychiatrist filed 5 December 2022;
• Affidavit of Mr Carlier's Mental Health Social Worker filed 22 July 2024; and
• Family report of Ms L filed 3 December 2023.

• Victoria Police section 69ZW response filed 28 September 2022;
• DFFH Child Protection section 69ZW response filed 21 November 2022;
• Affidavit of Mr Carlier's Psychiatrist filed 5 December 2022;
• Affidavit of CC Contact Centre filed 23 July 2024;
• Family report of Ms L filed 3 December 2023; and
• Affidavit of Mr Carlier's Mental Health Social Worker filed 22 July 2024.

Orders in Carlier & ... proceedings made on 23 March 2015

Father's 7 November 2014 Facebook post

[1] Section 60B in its current form came into operation on 6 May 2024. But the object "to give effect to the Convention on the Rights of the Child done at New York on 20 September 1989" was inserted into the Act by Act No 189 of 2011 and came into effect back on 7 June 2012. But by the amending legislation that came into effect on 6 May 2024 the previously applicable section 60B was repealed, including section 60B(1)(a), that had provided: 60B(1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and...

[2] This "new" section 60CC came into operation on 6 May 2024.

[3] Where 2nd appearing at pages 18 & 22 of the Explanatory Memorandum.

[4] The necessity to have regard to the Explanatory Memorandum, lest the purpose of the amending act not be sufficiently explained is emphasised in Radecki & Radecki [2024] FedCFamC1A 246.

[5] Convention for the Rights of the Child.

[6] That is the form of section 60B as it was prior to 6 May 2024.

[7] Lexis Nexis, Australian Family Law, vol 1 (at May 2024) [60B.15].

[8] Ms M was not required for cross-examination.

[9] Mr Carlier's affidavit of 22 July 2024 at [45].

[11] In particular, the message sent by Ms E to Mr Carlier at page 49 which includes "... You need to understand how much [...] hurts us, how horrible he is, how dangerous he is. ..."

[12] This assistance is set out in a letter from the Principal of W School dated 25 August 2021, and annexed to the affidavit of the Maternal Grandmother dated 5 August 2024 at 'Annexure B'.

[16] 16 sessions in 2012 and twice in 2018.

[19] It was not clarified whether this was during the therapy in 2012 or 2018 and so when this occurred has just been left hanging.

[21] See highlighted, or emphasised, part of Dr P's report, recited earlier in these reasons.

[23] Dr S had been provided with Ms M's report discussed above.

[24] Dialectical Behaviour Therapy and referred to as 'DBT'.

[25] From the overall text of the family report, it is apparent that the word "not" was omitted from paragraph [41] of the family report in error.

[26] This incident, which took place on 28 October 2022, is detailed on page 5 of 'ICL1'.

[27] That may or may not be the case, but I do not accept that was the context to the reference to "[...]" between Ms E and Mr Carlier.

[29] This is shortly after the Dr P disastrous consultation in later September 2022 and after the first family report and started just before Dr S's report.

[34] See [70], [72] of Ms M's report and [5], [90] - [93] of Ms L's report.