Ferrant & Varela (No 2) [2025] FedCFamC1F 808 (28 October 2025)

(a) contact Q ("the Contact Centre") within 14 days of the date of these Orders and arrange an appointment for and intake assessment for suitability for supervised time between the child and the mother;

(b) attend the assessment;

(c) comply with any appointments made by the Contact Centre for such supervised time;

(d) comply with all reasonable rules of the Contact Centre; and

(e) comply with all reasonable requests or directions of the staff of the Contact Centre

1. The mother and the father shall be responsible for payment of any supervision fees with Order 4 in equal shares.
2. The child shall have telephone communication with the mother each Wednesday, at such times as agreed between the parties and failing agreement from 6:00pm to 7:30pm. For this purpose, the mother is to call the father's nominated telephone number, and the father will facilitate the child being available to answer the telephone call.
3. Both parents be permitted to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
4. Without admissions, the mother and father are restrained by injunction pursuant to section 68B of the Family Law Act 1975 (Cth) from:

(a) consuming illicit substances 24 hours prior to the child coming into their care or during any period that the child is in their care.

(b) allowing the child to remain in the immediate presence of any third party consuming illicit substances.

(c) verbally abusing, denigrating or yelling at the child, the other parent or any member of the child's extended family.

(d) making critical or derogatory remarks in relation to the other parent or any member of their household, in the presence or hearing of the child and from allowing the child to remain in the presence or hearing of any other person engaging in such conduct.

(e) allowing the child to be exposed to family violence as defined by Part 4AB of the Family Law Act 1975 (Cth).

1. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the protection of the child and the father, the mother is restrained by injunction from:

(a) approaching or coming within 500 metres of any place where the father or child might reside from time to time;

(b) approaching or coming within 500 metres of any place where the child might attend school, before or after school care, or any activity;

(c) removing the child from the care of the father or from any school or place of activity; and

(d) approaching or coming within 500 metres of any place where the father might work from time to time.

1. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the protection of the child, the mother is restrained by injunction from allowing the child to have any contact or communication with Mr H.
2. The mother and father communicate with each other by way of parenting application, AppClose.
3. The mother and father must keep each other informed of their residential address and advise the other in writing within 48 hours of any change.
4. The mother and father will notify the other as soon as reasonably practicable of any significant trauma, illness or injury suffered by the child requiring medical treatment or hospitalisation, as soon as possible and provide the details of the illness, injury, medical treatment or hospitalisation.
5. The mother and the father be granted leave to provide the child's school with a copy of the Orders.
6. That the mother and father are permitted to provide a copy of these Orders to the child's treating general practitioner, paediatrician, medial services or other health professional/service provider (such as counsellors) and thereafter these Orders shall act as an irrevocable authority for the said professionals and/or service providers to:

(a) Liaise directly with the mother and the father, as may be requested by such party; and

(b) Provide the mother and the father information at the requesting parent's cost.

1. In accordance with Section 68Q of the Family Law Act 1975 (Cth) and to the extent of any inconsistency between the Family Law Orders and any Family Violence Intervention Orders, the Family Law Orders will prevail.

1. The above final parenting orders are inconsistent with the current ADVO dated [...] 2024 protecting the mother and the child from the father. In accordance with Order 17 above, these orders will prevail over the existing ADVO.
2. Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure 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 the pseudonym Ferrant & Varela has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are oral reasons for decision in a final hearing to determine the parenting orders in the best interests of X, born in 2017, aged eight ("the child") listed before me yesterday.
2. This was an over-listed Division 2 matter listed for three days commencing 27 October 2025. As time became available in my diary on that date, and as it was not possible to call on another Division 1 matter in the intervening period, this matter was transferred to Division 1 with the trial dates retained.
3. The applicant father is Mr Ferrant, born in 1976, aged 48. He has not re-partnered. He lives alone and works as a driver. The father's sister is Ms R, aged 45 ("the paternal aunt"). She has assisted the father with supervision and changeovers pursuant to interim consent orders of 30 October 2024. The child and father identify as Indigenous, with the father belonging to the S Aboriginal group.
4. The respondent mother is Ms Varela, born in 1979, aged 46. The mother is in a relationship with Mr H. She is not engaged in paid employment.
5. The mother has two adult children from a previous relationship with a Mr K. They are Ms B, aged approximately 21 or 22, and Mr C, aged approximately 19 or 20 (the half-siblings). The half-siblings lived with the parents and the child when they were still children. They now live with their father. The mother says she speaks with the half-siblings regularly and that she and X have a strong relationship with them. The half-siblings were interviewed for the Family Report, which was dated 25 March 2025 and prepared by Court Child Expert Ms D ("the expert").

1. These proceedings were commenced on 12 April 2024 when the father filed an Initiating Application seeking final orders. Information sharing orders were made on 17 June 2024. The matter was allocated to the Evatt list on 20 August 2024 and an Independent Children's Lawyer ("ICL") was appointed.

1. Interim orders were entered on 30 October 2024 for the child to live with the mother and spend time with the father in an increasing schedule, commencing with daytime only supervised time, supervised by the paternal aunt, and graduating to unsupervised time every second weekend from 3.30 pm Friday to 5.00 pm Sunday, with provision for Christmas time, and handovers at McDonald's Suburb T.
2. The consent orders also provided for telephone calls each alternate Wednesday, the parties to enrol in various post-separation parenting and relevant domestic violence courses, with communication via a specified parenting app for keeping informed, and for hair follicle drug testing, noting the parties both have histories of drug use, as well as various standard non-denigration and social media publication orders. The paternal aunt was required to, and did, file an undertaking as to supervision in the standard form.
3. These consent orders further included mutual restraints on each party against consuming illicit substances while the child is in their care, against the father and paternal aunt consuming alcohol while the child is in their care, against the father bringing the child into contact with his brother or any person known by him as having been charged with sexual offences, and against the mother bringing the child into contact with Mr H or Mr K.
4. On 12 November 2024, the Family Report was ordered, which was prepared and released on 25 March 2025. On 19 May 2025, the matter was made subject to a section 102NA order as there is an extant ADVO dated [...] 2024 protecting the mother and child from the father.
5. On 1 October 2025, the matter came before me for a compliance mention. The ICL raised concerns about the mother's living conditions, namely, material received from a support worker at a women's shelter that indicated the mother had been removed from the shelter after exhibiting concerning behaviours, including being observably intoxicated, which had resulted in ongoing conflict between the mother, other residents and staff.
6. The mother appeared at that mention, then representing herself. She admitted frankly to the court that she was engaged in substance misuse and said she was trying to get into a rehabilitation facility but had not managed to do so yet. The ICL made an urgent oral application for interim orders for the child to live with the father and spend time with the mother for a minimum of two hours a fortnight at a supervision centre.
7. I refer to my interim decision of Ferrant & Varela [2025] FedCFamC1F 737. That decision should be read together with this decision, and I will not restate what was contained in that decision.
8. To identify the issues, I note what was said in the Family Report at [62]:
   1. Concerns were raised through this assessment about both parents' parenting capacity due to their use of drugs. While Mr [Ferrant] spoke openly about his drug use, saying he used drugs rarely and mainly socially, and said he did not use drugs while caring for [X], his openness may have been influenced by his reported positive result on his drug test. And whilst Ms [Varela] denied currently using drugs, saying she has abstained from drug use for at least six months, the accuracy of Ms [Varela's] self-report is unknown due to her not complying with Orders for drug testing. There is, however, police material that indicates that Ms [Varela] was using drugs in March 2024, whilst caring for [X], in that she lost her driving licence for driving under the influence of drugs. It is somewhat worrying that Ms [Varela] continued to use drugs while [X] was in her sole care and it is likely that [X] would have been at risk, especially in light of the protective aspect of the siblings being out of the home. Additionally, Ms [Varela] was involved in a serious car accident in the weeks prior to the assessment, and the car was "written off". While it is not known if drugs were a factor in this car accident, the result of both events, Ms [Varela] losing her car licence, and the car being written off, have effectively left [X] in the care of her mother, with no access to a car, twice in a 12 month period. Ms [Varela] has identified that this has limited her ability to transport [X] to activities and therefore impacts her care of [X]. Whilst Ms [Varela] reports she is no longer using drugs, and has completed a drug relapse prevention program, there are some factors that indicate an increased risk of Ms [Varela] relapsing (if in fact she is no longer using drugs). These include exposure to external stressors including the ongoing Court proceedings, changes in relationships, and the influence of friends or partners that use drugs. If Ms [Varela] is using drugs, while caring for [X], [X] will continue to be at risk in her mother's care. Children of parents with a drug and/or alcohol dependency could be more likely to be exposed to abuse and or neglect, and potential psychological harm as a result.

1. The trial commenced on the morning of 27 October 2025, with all parties being legally represented, including by counsel. The applicant sought to read and rely upon:

(1) Trial Affidavit of the father filed 29 September 2025,

(2) Affidavit of Ms R filed 22 October 2025,

(3) Amended Initiating Application filed 29 September 2025,

(4) Updating Affidavit of the father filed 23 October 2025 and,

(5) Case outline filed for the father 22 October 2025.

1. The respondent mother sought to read and rely upon:

(1) Amended Response filed 28 August 2024,

(2) Notice of Risk filed 25 June 2024,

(3) Trial Affidavit of the mother filed 16 October 2025 and,

(4) Case outline filed for the mother on 24 October 2025.

1. The Independent Children's Lawyer sought to read and rely upon the:

(1) Child Impact Report of Ms U dated 26 September 2024,

(2) Family Report of Ms D dated 25 March 2025 and,

(3) Case outline filed 15 October 2025.

1. At the commencement of the trial, the parties and ICL sought time for discussions. This request was granted and was renewed during the course of the morning. Just before lunchtime, the mother made an oral application to adjourn the final hearing for 12 months to allow her to participate in rehabilitation and be in a better position to prosecute her case for a live-with application. That was opposed by the ICL and the father. I rejected that application, noting I would give reasons if required.
2. Whilst reasons have not been formally required, I note that I took into account the relevant principles in section 102NE of the Family Law Act 1975 (Cth) ("the Act"), which firstly required that the needs of the child and the impact of the conduct of the proceedings on the child should be considered, and also the broader case management principles in the Act and in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), reflecting the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
3. The child needs certainty, and there can be no guarantee, nor even, I think, a probability, that the mother's situation will be any different in 12 months' time. As the ICL submitted, the mother's issues date back to at least 2006, and I note the Department of Communities and Justice ("DCJ") involvement in 2011 to 2012. The father also has a genuine interest in a final hearing, and this court's final hearing time is extremely limited. I did not and do not consider it in the best interests of the child, nor in the interests of justice, nor appropriate by reference to case management principles, given the limited court time available to grant the adjournment, which is why the adjournment was refused.
4. The parties then went for further discussions. When the matter returned to commence after lunch, I was told that the matter had not resolved, and further, that the mother had left the building and ceased contact with her legal representatives. I was informed her legal representatives had diligently physically searched for her, including outside the building, but were unable to find her. I was told they were unable to contact her. I was told that they did not anticipate the mother would return to the trial at any time, not even if I stood the matter over for a day to allow her the chance to reconsider and re-attend and re-engage.
5. In those circumstances, the mother's solicitor and counsel sought to withdraw, as they were without instructions and considered there was no reasonable prospect of obtaining instructions. There being no opposition, they were permitted to withdraw, and that order was made.
6. The ICL and the father then sought to proceed on an undefended basis. Where the mother had attended the final hearing and then voluntarily absented herself, there could be no issue of notice or knowledge, where she had voluntarily elected and decided not to participate in the final hearing after failing to obtain the adjournment she sought. Whilst the mother is under a great deal of stress, and presently, it appears, in the midst of a substance misuse crisis, and that may have played a role in her decision to absent herself after her failure to obtain an adjournment, I am satisfied, noting the relevant principles relating to undefended hearings, that it was appropriate to proceed on an undefended basis as against the mother, and that is what occurred.
7. The father and the ICL proposed consent orders. In summary, those orders were that the present parenting orders be discharged, the father have sole decision-making responsibility for the child, the child live with the father, and unless the father and the mother agree in writing at the father's discretion the child should spend time with the mother no more than six times each year for two hours, each time supervised.
8. The first part of the proposal, which is that they can agree otherwise, is included to operate so that if the mother is able to rehabilitate herself and be abstinent, and satisfy the father that she does not pose an unacceptable risk of harm, then the father can, and says he will, facilitate time with the mother, and I am reasonably satisfied, based on the material I have before me, that he will likely put the child's interests at the forefront, and if the mother is safe to spend unsupervised time with the child, noting I find the mother currently is not safe for such time, that he will allow and facilitate that.
9. Otherwise, the reason it is only six times a year is not because it is recognition time, but because the ICL and the father tell me that in the region where the mother lives there is no current low-cost supervision centre available, so it is going to have to be supervision in the community, which is over $100 an hour, and the parties do not have that money.
10. I make these orders being comfortably satisfied on the mother's own admission, and having read the Family Report, that the mother unfortunately presents an unacceptable risk of harm to the child of spending any unsupervised time with the child, where the mother has not participated and the matter has proceeded on an undefended basis, and where the ICL supports the father's orders, and when no other orders are reasonably available to me, and where, having read the material, whilst I have concerns about the father's history, this is certainly not a case in which I would anticipate DCJ would be willing to intervene, nor one of those cases where I think that the only party attending is so unsafe that I should refer the judgment to DCJ with a recommendation they commence care proceedings in the Children's Court despite this Court's orders, as occasionally occurs where there is no safe option.
11. I make the proposed orders by consent in that context, noting section 60CC(4), and that these being consent orders, it is unnecessary to go through and address all of the statutory criteria, and I note there would be no utility in doing so anyhow.
12. I note that there is no application for costs from the ICL where all parties are legally aided.
13. Those are my reasons.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith.