Ferrant & Varela [2025] FedCFamC1F 737 (1 October 2025)

1. The Final Hearing commencing on Monday, 27 October 2025 is confirmed.
2. Leave is granted to the Independent Children's Lawyer to issue such subpoena as they deem necessary.
3. Leave is granted to the Independent Childrens Lawyer to approach the court in Chambers to have the matter relisted if any issues arise.

1. The above interim parenting orders are inconsistent with the current ADVO dated [...] 2024 protecting the mother and the child from the father and are made at the application of the Independent Children's Lawyer based on independent evidence, and concessions by the mother, relating to the mother's current parenting capacity, and have effect pursuant to section 68Q of the Family Law Act 1975 (Cth).
2. These orders have been made in circumstances where the best interests of the child require orders that are inconsistent with the family violence order pursuant to the Family Law Act 1975 (Cth).

1. The mother is changing legal representatives, and the Court will take a flexible approach to the filing of her evidence for the final hearing.

1. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
2. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
3. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
4. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

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 the pseudonym Ferrant & Varela has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are short-form oral reasons for decision pursuant to s 69ZL of the Family Law Act 1975 (Cth) ("The Act").
2. An oral interim application for parenting orders has been brought in relation to the child the subject of these proceedings, X (born 2017).
3. The oral application is made before me today by the Independent Children's Lawyer ("ICL") and has been entertained by me today.
4. The short facts are that the child is the child of Mr Ferrant (born 1976) and Ms Varela (born 1979).
5. The matter has only just been transferred to Division 1 in my docket and is listed for final hearing on 27 October 2025.
6. I note the matter was transferred only because I happened to have a week become available due to other matters not running, and the Division 2 case management judge picked a matter already listed that might be appropriate for me to hear, so the time will be used.
7. The matter was being mentioned today to address the readiness for hearing, and the ICL indicated that she had, in any event, asked for an urgent listing because of concerns she has about the current orders.
8. The current interim orders of 30 October 2024 are that the child live with the mother and spend time with the father as set out in those orders, and the child could have phone calls with her father each alternate Wednesday.
9. I note that there is also, apparently, an ADVO protecting the mother and the child from the father.
10. The history of the matter is as set out, as I understand it, without much contest in the Family Report of Ms D, Court Child Expert, published on 25 March 2025.
11. A significant issue raised in that report is drug use by both parents.
12. I note that this is one of those cases where not only does each parent make accusations about the other parent, but so do the mother's adult children from a prior relationship, Ms B (aged about 21 years) and Mr C (aged about 19 years), who were both interviewed for the purposes of the Family Report, since they have a close relationship with the subject child and lived with the parents when they were still children.
13. It was noted at [28] of the Family Report:
    1. Ms [B] reports both her mother and Mr [Ferrant] used drugs when she and her brother were at home and she and her brother were exposed to drug use when there were parties at the home. Additionally, she said there was a lot of drinking alcohol in the home and the use of alcohol and drugs contributed to fights between Ms [Varela] and Mr [Ferrant]. She denies she and her brother were protected from the drug use in the home, saying they saw an illicit drug "left out". She reports after [X] was born, there was less drug use in the home and said that [X] has not been exposed to drug use as she and her brother were protective of [X] and "tried to keep her away from it". When questioned about [X's] safety with each of her parents, Ms [B] said she viewed [X] as safe with each of her parents.
14. The Family Report reflected the comments of Mr C at [30]:
    1. ... Like his sister he recalls many drug and alcohol fuelled parties in the home, but he is of the view that this calmed down when [X] was born. He said he and Ms [B] "became the babysitters" and looked after [X] when the mother and Mr [Ferrant] wanted to "party'. While the exposure to drugs and alcohol decreased after [X's] birth, he viewed the conflict between Mr [Ferrant] and Ms [Varela] as increasing and said, "there was more going on".
15. The ICL's application made today is that the interim orders of 30 October 2024 be suspended in respect of certain matters, principally the live with and time with orders, and that the child now live with the father, spend only supervised time with the mother, and have telephone contact with the mother.
16. I note I will not suspend all of the orders of 30 October 2024 as many of the orders are about appropriate restraints, which I will go through.
17. The circumstances in which the application arise are evidenced, in particular, from a communication between Ms E, who is a N Community Services caseworker, to Ms F, who is the deputy principal of M School, where the child attends.
18. Ms F recounted her conversation with Ms E in an email to Mr G, the principal of M School as follows:[1]

Points arising following a conversation with [Ms E] [N Community Services] Case Worker ...

• [X] and [Ms Varela] did not leave the shelter as reported to the school by [Ms Varela] on Friday 29/8

• The family were exited from the shelter due to the significant risk that was placed upon the residents and staff by [Ms Varela]. She:

• Consistently under the influence of drugs

• Gave the refuge address out to strangers who came around to the shelter

• Received money from another resident to buy drugs but did not buy the drugs and kept the money causing a dispute where the other resident stole her hair straightener in recompense

• Ex partner [Mr H] turned up at the refuge wielding a potential weapon running it along the walls of the refuge in a threatening manner

• Left the refuge on a date in mid-2025 in search of 'men' with the same resident who gave her money to buy drugs. It is not certain if they took [X] with them or left her unattended at the refuge. Either is against the rules of the shelter.

• [X] had the opportunity to have speech therapy and a paediatric appointment but has lost that opportunity now that the are not allowed to return due to the safety risk - medical neglect

• While at the shelter, [Ms Varela] slept in often neglecting her responsibility of getting [X] to school and would put her on a public bus alone and send her to school unattended.

• Has been in temporary accommodation at [Suburb O] since Friday 28/8, but this expires Monday 1/9. We are unclear where that was or where they are to go to next.

(As per the original)

1. The mother, who is self-represented at the moment because she is in the process of changing lawyers, very fairly conceded that she had been taking drugs whilst in the shelter. She refuted various other matters.
2. Of course, the fact that her ex-partner, Mr H, turned up wielding a potential weapon is not something which could or should be held against her in any way.
3. She specifically denies taking money from other residents to buy drugs, buying the drugs, and other matters, but as I said, she very fairly conceded that she has been using drugs.
4. She says she is not in NA or AA.
5. She is seeking to be involved in rehabilitation, but the rehabilitation facility she was seeking to engage with is in Region P, and she is not living in Region P at the moment, and therefore she cannot go there.
6. The net effect of the concession is that the mother is currently taking illicit drugs. I congratulate her on having conceded that, even though the concession is made in the face of overwhelming independent evidence. Many people seek to deny the obvious, but at least she has made the concession and has indicated that she is going to try and address the issue.
7. However, the evidence, supported by that concession, makes it clear, in my view, that the child is not presently safe living with the mother.
8. The child is presently living with the father.
9. I will also note that the child has not been going to school because the father intervened. The father was concerned that if the child went to school, the mother would remove the child, pursuant to the orders that she has, which would put the child at risk.
10. It is in these circumstances, given that the ICL supports the father's view that the mother is presently unsafe, and the child should be living with him, that the ICL has made the oral application which I am dealing with on an ex tempore basis now.
11. The relevant principles are that the ICL seeks a parenting order as defined in Pt VII, Division 5 of The Act, and I note ss 64B and 65D.
12. The paramount consideration is, of course, the child's best interest, ss 60CA and 65AA.
13. I note that the risk issues are made clear by the mother's very frank and appreciated concession.
14. I am satisfied that applying the relevant principles in M & M (1988) 166 CLR 69, and see also Isles & Nelissen [2022] FedCFamC1A 97, that the child would be at an unacceptable risk of both physical and psychological harm if she was to continue living with the mother, or indeed, given the unfortunate impacts of illicit drug use, spending unsupervised time with the mother.
15. I note that there are, in the Family Report, significant risk issues raised in terms of father as well, with the independent witnesses, being the mother's adult children, who said that he was also someone who consumed drugs, but at the moment, he seems to be the lesser risk.
16. I note that DCJ have opened a file, and I note the other Exhibit,[2] tendered by the ICL, which dealt with that.
17. Having to choose, as one often does, the lesser of risks, I am satisfied, looking at the s 60CC requirements, which obviously start with the question of what arrangements would promote the safety (including safety from being subject to, or exposed to, family violence, abuse, neglect, or other harm) of the child, that the child's safety, which is the paramount consideration, can only be served by suspending the current interim orders.
18. In their stead I order that the child live with her father, spend supervised time with the mother, and have telecommunications with the mother.
19. I note that I have not considered the views of the child.
20. As I understand it, the child previously expressed a view of wanting to spend time with both parents.
21. I do not know the child's current view. I cannot deal with that at the moment.
22. The development of psychological, emotional, and cultural needs of the child are fundamental for safety. I am satisfied that the father is better placed to meet those at the moment.
23. At the moment the father has the better parenting capacity to address the child's needs.
24. I am satisfied there is a benefit to the child maintaining a relationship with her mother at the moment, but this can only safely be done through supervised time, and through telephone calls.
25. The child is an Aboriginal Torres Strait Islander child through the father, and that cultural need will be met through living with the father.
26. These are very short reasons, noting the circumstances in which the matter has come on, and the fact that the mother has made a concession, and the fact we have got a trial in four weeks' time.
27. The ICL seeks orders, which I will make, suspending Orders 1, 2, 3 and 4 of 30 October 2024.
28. I will not suspend Orders 5, 6, 7.
29. I will not suspend Order 8, which relates to communication via the app.
30. I will not suspend Order 9.
31. I will not suspend Order 10.
32. I will not suspend Order 11, although the time for it has gone.
33. I will not suspend Order 12, as it is a restraint about a person.
34. I will not suspend Order 13, about the father not bringing the child into contact with any person known to him to have been charged with an offence of a sexual nature.
35. I will not suspend Order 14, about Mr J, Mr H and Mr K and the relevant restraints.
36. I will not suspend the general restraints in Orders 15, 16, 17, 18, 19, 20.
37. I will suspend Order 21, because it is no longer relevant in terms of the mothers' communication.
38. I will not suspend Order 22, or any other orders.
39. So the general restraints stay in place.
40. Those are my reasons and I will enter orders accordingly today.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.