Huisman & Simonds [2025] FedCFamC1F 489 (23 July 2025)

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

1. These reasons explain the dismissal of an interim parenting application in proceedings which are listed for final trial in under six weeks' time.

1. The proceedings concern a child born in 2024, who is only an infant.
2. The applicant is the child's mother. The first respondent is the child's father.
3. The mother commenced the proceedings in August 2024 when the father and the paternal grandmother withheld the child from her and, very shortly thereafter, the paternal grandmother was joined to the proceedings as the second respondent.
4. The State child welfare agency was invited to intervene in the proceedings soon after their commencement but has not yet done so.
5. The proceedings have already soaked up a disproportionate share of resources.
6. In August 2024, interim orders were made for the child to spend time with the mother for two hours each day, with the maternal grandmother present. No order was made as to the child's residence, though the child remained in the care of the father and paternal grandmother. Those orders were explained by this notation:
   1. The above orders are made to reinstate the relationship between the mother and [the child] until the handing down of reasons and orders following the defended interim (stopgap) parenting hearing 21 August 2024.

1. In September 2024, the reserved decision was delivered and interim orders were made for the child to live with the mother and to spend time with the paternal grandmother on two nights each week, subject to the paternal grandmother fulfilling certain conditions. No orders were then made in respect of the father, which was explained by this notation:
   1. [The father] has been refused bail and is currently remanded in custody. He has not filed in accordance with previous filing directions.

1. The paternity of the child became contentious and so, in October 2024, more orders were made for the parents and the child to submit to parentage testing. The result of such testing remains unknown. No evidence was adduced about it today.
2. In October 2024, the former interim parenting orders were discharged and fresh interim orders were made for the child to live with the mother (subject to her fulfilling certain conditions) and to spend time with the paternal grandmother on two nights each week (subject to her fulfilling certain conditions). The orders provided for the child to spend time with the father at times when the child was spending time with the paternal grandmother (subject to him fulfilling certain conditions).
3. The child's exchanges between the mother and the paternal grandmother were becoming increasingly fractious and so, in April 2025, more orders were made to vary the changeover venue to a professional contact service.
4. In May 2025, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) and subsequently listed for trial in September 2025. At the time the trial was listed, this notation was made:
   1. At this stage it is not anticipated that [the father] will be an active participant at the trial.

1. On 15 July 2025, the paternal grandmother filed an Application in a Proceeding seeking fresh interim parenting orders for the child to live with her and to spend an undefined amount of professionally supervised time with the mother. The application was supported by the paternal grandmother's affidavit (with annexures), also filed on 15 July 2025.
2. The paternal grandmother sought that her application be heard urgently, so it was listed for hearing on 23 July 2025.
3. The mother filed a Response and supporting affidavit (with annexures) after the close of business the day before the hearing. The paternal grandmother sensibly did not object, bearing in mind her application was listed for hearing urgently, as she wished, and the mother would ordinarily have more time from her service with the application within which to file and serve her Response and rebuttal affidavit (rr 2.18(2), 5.05 and 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
4. The mother sought fresh orders which appear to largely replicate those made in October 2024, the slight differences not being worthy of interim variation.
5. The father did not appear.
6. The only other evidence was the Family Report, dated 28 April 2025, upon which the parties and the Independent Children's Lawyer relied ("the ICL").

1. Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) ("the Act"), where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
2. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child's best interests (s 60CC).
3. Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
4. Such principles apply equally to interim parenting orders.
5. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):

...the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

1. In Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637 at [47]-[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.

1. The child is identified as being indigenous, but neither the mother nor the paternal grandmother submitted that to be a relevant consideration at this point (s 60CC(1)(b) and s 60CC(3)).[1]
2. There are plenty of allegations of family violence between the parties, but not such as to affect the outcome of this interim dispute (s 60CC(2)(a)).
3. The child is too young to express any views (s 60CC(2)(b)).
4. The sole premise for the paternal grandmother's application is her contention that the mother lacks satisfactory parenting capacity (s 60CC(2)(d)) and the child's needs are being seriously neglected (s 60CC(2)(a)).
5. The paternal grandmother's concern is encapsulated in these statements within her affidavit:
   1. I am seeking urgent interim Orders due to serious concerns I have for [the child's] welfare when in [the mother's] care.

...

1. I would like [the mother] to be in a position where she could care [for the child] full time and I could assist in the role as a grandmother. However, all that I have observed since the making of the Interim Orders from 30 October 2024, is that [the mother] is currently not in a position to care for [the child] and to provide him with the care he deserves. I am unsure if [the mother] will ever be in a position to provide [the child] with the care he needs.

1. On 5 June 2025, the paternal grandmother withheld the child from the mother, about which she deposed this:
   1. On 5 June 2025, I did not return [the child] to [the mother's] care as per the Orders. This was because at changeover on 4 June 2025, whilst [the mother] was getting [the child's] socks out of her handbag, I saw a crack pipe in her handbag. Further to this, [the mother's] behaviour and manner was erratic and irritable. ...
2. The proceedings were back before the Court the very next day for procedural directions, when the trial was set down for hearing. In respect of events that day, the paternal grandmother deposed this:
   1. The following (sic) day, 6 June 2025, the matter was before the Court for case management. [The mother's] lawyer informed the Court of the withholding, and my lawyer outlined the reasons why. In response, the Court asked [the mother] directly to respond to the concerned raised about her drug use. [The mother] addressed the Court and said my assertions regarding her drug use were false and that she was not using drugs.
   2. Following this appearance, I returned [the child] to [the mother's] care. Returning [the child] on this occasion was incredibly difficult for me, mentally and emotionally. I felt powerless. I did not want to return [the child] to [the mother] because of the gravity of my concerns, however, I was fearful that I had contravened the Orders. I followed the direction from the Court and returned [the child] to [the mother] at approximately 1:00pm the same day.
   3. Following this, given my concerns, my lawyer applied for a grant of legal aid to file an Application in a Proceeding to have the Interim Orders changed. I am aware that this matter is listed for final hearing in September 2025, however, it is my belief that [the child] is at risk whilst in [the mother's] care.
3. Having already decided to bring an interim application to reverse the child's residence, the paternal grandmother later felt vindicated by the mother returning a positive drug test on 3 July 2025. The mother has returned other negative drug test results over recent months,[2] though her positive test result in July 2025 for amphetamine use almost certainly represented a breach of orders restraining her use of illicit drugs, which abstinence was a condition under which the child lives with her.[3]
4. Aside from positive proof of the mother's use of amphetamines in breach of existing interim orders, the frequency and duration of which use presently remains unknown, the only evidence of the child's physical, developmental and emotional needs not being met is the evidence of the paternal grandmother that:[4]

(a) she saw bruises and rashes on the child's body in June 2025;

(b) in her opinion, the child is unclean;

(c) she sees the child dressed in clothing which is mouldy or too small for him; and

(d) in her opinion, the child is "exhausted" when she sees him.

1. However, the paternal grandmother's criticisms of the mother's parenting capacity are both untested and uncorroborated. The mother refutes her criticisms. Significantly, the court child expert relevantly reports the parties admitted the child is meeting all his general developmental milestones, which the court child expert observed to be correct.[5] When she saw the child in March 2025, he was dressed comfortably and the mother was well prepared with snacks and nappies.[6]
2. For her part, the mother believes the paternal grandmother is unreasonably encroaching upon her parental role.[7] She alleges the child has been bruised when returned to her by the paternal grandmother,[8] and once had to be hospitalised for treatment of a medical condition after an extended stay with the paternal grandmother.[9] The paternal grandmother has certain health conditions, for which she has a NDIS plan.[10] It is unclear the extent to which such conditions would affect her ability to care for a young child on a full-time basis.[11]
3. The child seems to be bonded with both the mother and the paternal grandmother.[12] However, it is likely the child is primarily attached to the mother, so the maintenance of their relationship is critical at the child's young age. Yet the paternal grandmother's proposal does not necessarily ensure that because she proposes the child spend time with the mother at a professional contact centre "on such days and times as can be facilitated" by the contact centre. There is no evidence the contact centre has any capacity to supervise the child's time with the mother, either at all or with sufficient regularity, over the next six weeks before trial. Just because the contact centre can supervise changeovers does not mean it has space to supervise visits.[13]
4. It is also likely the child is bonded with his half-sibling, who lives with the mother, and the maintenance of their relationship is also important (s 60CC(2)(e)).

1. This interim dispute devolved to a contest over whether the child's residence should be impulsively reversed due to the mother's ingestion of illicit drugs in breach of an injunction restraining her from doing so.
2. Self-evidently, it is undesirable for the mother to inebriate herself by illicit drug use while the child is in her care, because she can hardly properly care for and supervise the child while intoxicated. The current untested evidence falls short of exposing the seriousness of her illicit drug use, but the issue will no doubt be explored in greater detail at the upcoming trial.
3. The court child expert reported the importance of stability in a young child's care routine in these terms:
   1. For children of [the child's] age, frequent changes in care arrangements as well as inconsistencies in the parenting behaviours can have detrimental effects. The impact on [the child] moving between households [when] there is no co‑parenting can be significant. ... Additionally, routines are critical for a child's sense of safety and instability in the caregiving approaches may cause confusion and stress.

...

1. [The child's] age and stage of development and the nature of her relationships suggests he would be best supported by living primarily with one carer and spending significant and substantial time with the other. ...

1. Such evidence tends to support retention of the regime imposed by the existing interim orders in the relatively short period between now and the trial. The factual findings which might support orders reversing the child's residence deserve much more thorough consideration at the trial. The paternal grandmother's proposal (supported by the ICL) for the immediate reversal of the child's residence and for orders which do not prescriptively define when he spends professionally supervised time with the mother seems inadvisably reactive when the final trial is only six weeks away.
2. The paternal grandmother's interim application is dismissed. So is the mother's response. The existing interim parenting orders will prevail until the trial.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

[3] Orders 2 and 4 made 30/10/24; Order 1 made 6/6/25

[4] Paternal grandmother's affidavit at [36], [42]

[5] Family Report at [7], [77], [87], [92]

[6] Family Report at [77], [80], [84]

[8] Family Report at [53]; Mother's affidavit at [42]-[46]

[12] Family Report at [78]-[91], [105], [119]

[13] Paternal grandmother's affidavit at [30]