Huisman & Simonds (No 2) [2025] FedCFamC1F 623 (9 September 2025)

(a) each week from 5.00 pm on Friday until 5.00 pm on Saturday; and

(b) each year from 10.00 am on 26 December to 10.00 am on 28 December.

1. To implement Orders 4 and 5, the mother and the paternal grandmother shall cause the child to be exchanged at:

(a) the D Children's Contact Centre, or if that service is unavailable;

(b) the KFC Restaurant at Town C, Tasmania.

1. The mother and the paternal grandmother are restrained from allowing the child to spend time with or remain in the presence of the father.
2. The mother is restrained from causing or allowing the child to spend time with or remain in the presence of Mr E.
3. The mother and the paternal grandmother are restrained from denigrating one another in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
4. The mother and the paternal grandmother shall notify each other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting medical treatment by a third party.
5. The mother shall authorise and request the principal of any school attended by the child to provide to the paternal grandmother, at her expense, copies of all school reports and school photograph order forms relating to the child.
6. The mother and the paternal grandmother shall forthwith inform the other, and keep the other informed, of their respective mobile telephone number and email address.
7. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
8. The Independent Children's Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
9. Costs are reserved for 28 days.
10. Any and all other outstanding applications are dismissed.

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

1. These proceedings under Pt VII of the Family Law Act 1975 (Cth) ("the Act") entail a contest between the mother and the paternal grandmother over the residence of a young child. The father lost interest in the litigation some time ago.

1. By all accounts, the mother and the father had a tumultuous relationship, which ended when their child was very young.
2. The child was born in 2024 and is now a toddler .
3. These proceedings were commenced by the mother in August 2024, when the father and the paternal grandmother withheld the child from her. Shortly thereafter, the paternal grandmother was joined to the proceedings as the second respondent. The State child welfare agency was invited to intervene in the proceedings but has declined to do so.
4. In August 2024, following a contested interim hearing, orders were temporarily made for the child to spend time with the mother for two hours each day, provided the maternal grandmother was 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. The reserved decision was delivered in September 2024, when interim orders were made for the child to live with the mother and to spend time with the paternal grandmother 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 parents failed to comply with the orders and so the child's paternity remains unconfirmed.
2. In October 2024, fresh interim orders were made discharging the former orders, requiring the child to live with the mother (subject to her fulfilling certain conditions), and providing for him to spend time with the paternal grandmother two nights each week (subject to her fulfilling certain conditions). The orders provided for the child to spend time with the father at times coinciding with when he was spending time with the paternal grandmother (subject to the father fulfilling certain conditions).
3. Tension between the mother and the paternal grandmother continued to escalate and so, in April 2025, more interim orders were made to vary the changeover venue to a professional contact service. Even now, they both wish to continue using that changeover venue for the foreseeable future.
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. The interim orders made in October 2024 and April 2025 operated until the trial and were generally the subject of compliance. An application made by the paternal grandmother to vary the interim orders was dismissed in July 2025.
5. The trial proceeded in September 2025, but only the mother and the paternal grandmother participated as parties. The trial proceeded in the father's absence because this was noted when procedural directions were made in June 2025:
   1. At this stage it is not anticipated that [the father] will be an active participant at the trial.

1. The mother abandoned the orders proposed within her Amended Initiating Application filed on 28 January 2025 and the Minute of Orders she tendered at the start of the trial.[1] Instead, she sought the orders set out in the revised Minute of Orders she tendered at the end of the trial.[2]
2. She confirmed she wanted sole parental responsibility for the child, not sole decision-making authority as her Minute of Orders proposed, and for the child to live with her. She proposed the child spend time with the paternal grandmother once every week, from Friday afternoon until Saturday afternoon, and on other special occasions.
3. She proposed the child could only ever spend supervised time with the father at times which she and the paternal grandmother allowed.

1. The Response filed by the father on 6 September 2024 is dismissed for want of prosecution. The orders he proposed in that Response were not illuminating in any event.

1. The paternal grandmother sought the orders set out within her Amended Response filed on 7 August 2025. She applied for her conferral with exclusive parental responsibility for the child. She did not make any proposal for any form of interaction between the child and the father.
2. The paternal grandmother's proposal for how the child would be cared for by her and the mother was complicated. She wanted the child to initially live with her and spend time with the mother, but conditional upon the mother providing multiple negative drug tests over an ill-defined period. The proposed regime of interaction between the child and the mother begins with short bursts of professionally supervised time but, subject to continuing provision of negative drug tests, graduates in several steps and culminates with the child reverting to live primarily with the mother and spending time with the paternal grandmother for five nights per fortnight.
3. The paternal grandmother explained the proposal this way in her affidavit:
   1. My position in these proceedings is that [the child] should live with me, his time with [the mother] be supervised until she demonstrates that she is not continuing to use drugs, and that [the child's] time progress to ultimately a reversal of care, provided that [the mother] abstains from drug use.

(Paternal grandmother's affidavit filed 13 August 2025)

1. The Independent Children's Lawyer ("the ICL") did not begin the trial with any firm proposal but did foreshadow broad support for the position adumbrated by the paternal grandmother. The ICL intended to tender a Minute of Orders prior to commencing final submissions but did not ultimately do so.
2. The ICL maintained support for the paternal grandmother's proposal but did concede the continuing provision of drug test results and the implementation of self-executing orders depending upon the results of those tests was liable to be problematic. To overcome that perceived problem, the ICL adhered to the idea of the child immediately moving to live with the paternal grandmother, but only for a finite period of three to six months. In the meantime, the ICL proposed the child would spend unsupervised time with the mother for as many as three full days each week, which proposal seemed to undercut the logic of the reasoning for why the child's residence should be temporarily reversed.
3. The ICL proposed the child would return to live with the mother at the conclusion of the arbitrary period of three to six months, regardless of the progress she had made overcoming her illicit drug use, so the temporary reversal of residence seemed pointless.

(a) her affidavit filed on 13 August 2025 (with annexures); and

(b) the affidavit of the maternal aunt filed on 13 August 2025.

1. The paternal grandmother relied upon her affidavit filed on 13 August 2025 (with annexures).
2. The parties and the ICL relied upon the family report dated 28 April 2025.
3. Numerous exhibits were tendered.

1. Orders in respect of children are made under Part VII of 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)), regardless of 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).
4. When an order is made allocating parental responsibility for a child or children in relation to "major long-term issues" to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines "major long-term issues" to include those such as the child's education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what "joint decision-making" requires in respect of decisions about such issues (s 61DAA). One person allocated with parental responsibility for a child need not be consulted by another person allocated with parental responsibility in respect of minor decisions made for the child which fall outside "major long-term issues" (s 61DAB).
5. Since amendments were made to the Act, operable as from 6 May 2024, parental responsibility orders no longer have any bearing upon determinations made about with whom a child should live or spend time.

1. The mother identifies as an Aboriginal woman from land in NSW.
2. The paternal grandmother identifies as an Aboriginal woman from land in Tasmania.
3. Neither contends the other would deprive the child of the chance to identify with and experience Aboriginal heritage and culture.
4. This is not a feature of the case which influences the decision about the child's residence.[3]

1. It understates the body of evidence considerably to say it contains multiple allegations of serious violent conduct by the mother, the father and the paternal grandmother. However, it is quite unnecessary to make any factual findings to determine the multiple allegations made between the mother and the paternal grandmother because no such findings would make any difference at all to the case they each prosecuted. Neither of them seeks to deploy findings of family violence to influence the suites of orders they each propose. Facts need only be determined when they authentically influence the exercise of discretion under Pt VII of the Act (Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 at [41] and [80]-[87]).
2. Regardless of the allegations made by the mother against the paternal grandmother, the mother proposes the child should spend one day each week with her.
3. Regardless of the allegations made by the paternal grandmother against the mother, the paternal grandmother proposes the child should live with the mother as soon as she proves her abstinence from illicit drug use, which she expected would take not less than 12 months. While the paternal grandmother proposed the child only spend supervised time with the mother within the immediate future, that is only on account of her suspected illicit drug use and until she produces multiple negative drug tests, not because of her allegedly violent behaviour.
4. Had the mother and the paternal grandmother not voluntarily abstained or desisted from pointlessly challenging one another in cross-examination on the issue of family violence, they would have been directed to do so in an exercise of statutory power (ss 102NE(4), 102NE(6), 102NJ(1)(c) and 102NN(2)(i)). Given the nature of their respective proposals, for the child's sake, it behoved them to retain whatever vestige of cooperation they have left.
5. The situation with the father is different. The mother's unchallenged evidence of gross family violence perpetrated upon her by him is accepted.[4] She suffered the same type of violent treatment by Mr E.[5] Given the father's decision not to participate in the proceedings, the evidence does not permit any order to be made which ensures the child can safely spend time with him. So far as the evidence goes, the father is currently imprisoned,[6] though it is unclear whether he is serving a custodial sentence or is remanded with bail refused in relation to pending charges. Such is the aberrant nature of the father's behaviour, not even the paternal grandmother wants him at her house. She has kept her address secret from him.[7]

1. The child is a toddler. There is no evidence of him expressing a view.

1. Save for the expectation that the child's needs should desirably be met, neither the parties nor the ICL contended the developmental, psychological, emotional or cultural needs of the child were noteworthy in the exercise of discretion.

1. The fulcrum of the dispute was the respective capacity of the mother and the paternal grandmother to meet the child's developmental, psychological, emotional and cultural needs.
2. The paternal grandmother contended the mother's illicit drug use impaired her parenting capacity to such an extent that it disqualified her as the child's primary carer for the foreseeable future. Advertence to the evidence demonstrates how the paternal grandmother's fears are exaggerated, which is not to trivialise the problems the mother has encountered.
3. The mother is only 23 years of age, but illicit drug use has been part of her life in recent years. She used drugs weekly back in 2019 and 2020 before the conception of her elder child.[8] She returned to such drug use in 2023 and 2024, which brought her to the attention of police. She was convicted of driving a vehicle under the influence of drugs in 2024, for which she received a driving disqualification.[9] She deposed she was using drugs in early 2024 when trying to escape an abusive relationship with the father of her elder child ("Mr E").[10] She also used drugs in mid-2024 with the father,[11] from whom she separated at about that time.[12]
4. The father and the paternal grandmother withheld the child from the mother in mid 2024,[13] which was the catalyst for the mother to start these proceedings.[14] Once the child was restored to the mother's primary care by interim orders made in September 2024,[15] she set about finding alternate accommodation which was unknown to the father. Her place of residence with the child was transient for a few months between September 2024 and December 2024.[16]
5. The mother began drug rehabilitation with an agency in late 2024 but found the agency unsuitable.[17] In early 2025, she instead consulted with a mental health agency and was referred to an alternate drug rehabilitation service, which she found helpful.[18] The mother's access to such services is facilitated by Mental Health Care Plans, which she intends to continue utilising. The mother returned negative drug tests on two occasions in early 2025.[19]
6. In March 2025, the family consulted with the court child expert. The parties then admitted the child was meeting all his general developmental milestones, which the court child expert independently observed to be correct.[20] The child was dressed comfortably and the mother was well prepared with snacks and nappies.[21]
7. However, as is often the case, the path to abstinence is not straight and there were some kinks in the road travelled by the mother. She relapsed into illicit drug use twice in mid 2025 while the children were staying with maternal relatives.[22] The relapses were revealed by her hair follicle drug testmid-, but the mother had already confessed her initial relapse to the State child welfare agency and collaboratively developed a "Safety Plan" in the event of further relapse, which was implemented the second time in mid-2025.[23] The mother might have suspected her relapse would be revealed by a later drug test, but she acted immediately without waiting, which behaviour is consistent with her remorse.
8. The State child welfare agency has since been satisfied with the mother's improved provision of care to her two children and has now discontinued further involvement in her life.[24] The mother returned a negative drug test result in mid 2025,[25] which was a positive step. She also made significant gains in late 2025. She recovered her driver's licence, following proof of recent abstinence from illicit drug use,[26] and she successfully completed a family violence education program,[27] a parenting program,[28] and an online drug rehabilitation course.[29]
9. The mother was challenged in cross-examination about the relative recency of her relapse and the likelihood of a recurrence, but she rejected the doubts implicitly expressed about the ephemeral nature of her recovery. She said she felt regret and guilt about the two relapses in mid-2025. When asked if she was confident that she would not relapse again she replied with some perspicacity: "I'm confident I don't want to use drugs again". Sensibly, she did not deny the possibility of future relapse, which would have demonstrated a lack of insight. She realises illicit drug use is liable to compromise her care of the child (and also her elder child) and convincingly said "I don't want to lose my children". She professed her intention to do her best, which is really all that can be asked of her. Of course, the prospect of the mother's future relapse cannot be ruled out, but the evidence formed a strong foundation to infer she is firmly committed to rehabilitation from illicit drug use.
10. The maternal aunt has obviously been a reliable source of support for the mother. She was an impressive witness, as the paternal grandmother's counsel generously conceded. She persuasively said "I would step in for the kids" when pressed on whether her ultimate loyalty was to the mother or her children. It is likely that she would be a reliable safety net for the children if the mother does relapse again on her path to recovery.
11. The mother expressed several concerns about the paternal grandmother's parenting capacity, including: her drug use; her association with the father; and her disabilities. The mother's protestations in cross-examination that the child is not safe in the paternal grandmother's care are, first, not borne out by the evidence, and secondly, irreconcilable with her proposal for the child to spend time with the paternal grandmother for one day each week.
12. The mother's evidence about the paternal grandmother's drug-use lacks probative value.[30] The text messages to which the mother referred were difficult to decipher, but the evidence is otherwise historic and hearsay. The paternal grandmother gave direct evidence of not using illicit drugs for 15-20 years.[31] She tendered a recent negative hair follicle test and a list of her prescribed medication.[32] She was not challenged in cross-examination about such evidence being false.
13. The mother's concerns about the father still associating with the paternal grandmother are no more than suspicions. The mother professed not having associated with the father since their separation in mid-2024, not least because she is protected from him by a State family violence order, so she could not have received any information from him over the past 12 months. The paternal grandmother said she evicted the father from her home in January 2025 and he has not returned.[33] She was not challenged about the truth of that evidence.
14. The paternal grandmother receives a disability pension,[34] though the nature of disability was never clearly articulated.[35] The mother alleged during cross-examination the paternal grandmother uses a walking frame, but she did not use any ambulatory aid in Court and the proposition was not put to her in cross-examination. The paternal grandmother experiences anxiety,[36] but not to an extent that could reasonably be considered impairs her parenting capacity. She has completed parenting courses.[37] She has secure accommodation.[38]
15. The paternal grandmother has nevertheless faced challenges in her life. The State child welfare agency removed her own children from her care in the past.[39] Although the children were later returned to her, she is now estranged from some of them.[40] She said in cross-examination it was only five or six years ago that the State child welfare agency finally terminated its interest in her family.

1. The mother, the paternal grandmother and the ICL each acknowledged the child would benefit from being able to have relationships with the mother and the paternal grandmother.
2. They all mutually acknowledged it was not currently safe for the child to have an unsupervised relationship with the father.

1. Neither the parties nor the ICL contended any other feature of the evidence was a relevant consideration.

1. The child should live with the mother. The considerations which militate in favour of that outcome can be distilled to two principal propositions.
2. First, the mother's parenting capacity is satisfactory when she is not intoxicated, as she is able to adequately meet the child's needs. The child is meeting his developmental milestones.[41] The prospect of the mother resorting to illicit drug use in the future and her consequent intoxication depriving her of capacity to meet the child's needs cannot be discounted, but the risk of that eventuality is not so pronounced that the removal of the child from her care is the only viable protective measure. The paternal grandmother might arguably lay claim to a marginally better parenting capacity, but the margin of the superiority is not so great as to warrant the reversal of the child's residence. The standard of the mother's parenting capacity is good enough, particularly when supported by the maternal aunt.
3. Secondly, the reversal of the child's residence would be highly disruptive for him on several levels. He is at an age where he is forming a primary psychological attachment with the mother and any disruption to such attachment process would likely cause him life-long psychological complications. The court child expert described him as being at a "critical" stage of development.[42] Presently, the child has a "positive and connected relationship" with the mother.[43] Removal from the mother's primary care would also risk dislocating the child's sibling relationship with his older sister. His contact with her for only short periods while instead living primarily with the paternal grandmother is not a satisfactory substitute for the daily emotional succour he derives from living with his sister. The child's residence with the mother is satisfactory, which makes it unnecessary to risk psychological harm to the child by reversing his residence merely in the hope of attaining a slightly better residential experience for him with the paternal grandmother.
4. The idea of ongoing drug testing by the mother (or even the paternal grandmother) is rejected.[44] No such orders could be made unless they are tethered to and qualify the operation of a parenting order (Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017 at [45]-[59]). Supposing the orders were tethered to and qualified the operation of the order requiring the child to live with the mother, they are liable to stimulate further controversy about the consequences of a positive drug test: would the drug use be serious enough to warrant the child being automatically removed from the mother's care? In effect, the orders would invite heightened sensitivity and tension between the parties, which is to say nothing of the prospect of stimulating further litigation. The court child expert said the child needs "consistency and predictability".[45] The conditional and complicated orders proposed by the paternal grandmother (with the ICL's support), which portend the child being swapped back and forth between the mother and the paternal grandmother, depending upon the result of the mother's most recent drug test, would not likely foster consistency and predictability for the child.
5. It was common ground the party with whom the child lives should be conferred with exclusive parental responsibility for him. Accordingly, the mother will have parental responsibility for the child. The parental responsibility for the child conferred by law upon the father must be removed.
6. Orders will provide for the child to spend time with the paternal grandmother. She did not propose any fall-back option if the child remains living with the mother. Neither she nor the ICL challenged the mother about the appropriateness of her proposal for the child to spend one day per week with the paternal grandmother. It must follow then the mother's proposal for when the child spend will time with the paternal grandmother is not controversial. The orders provide for the child to also spend time with the paternal grandmother at Christmas, but no provision is separately made for Easter. Orders to that effect implement the court child expert's recommendation for the child to have a primary residence with one party, but to spend liberal amounts of time with the other, which arrangement will foster "security and stability".[46]
7. The child will be exchanged between the mother and the paternal grandmother (or their proxies) at the venues they proposed.[47] The idea to use the child's school as a changeover venue once he starts school several years hence is rejected. Given the timing of the child's exchanges, it is unnecessary to involve the school. The parties may depart from the orders if they mutually agree.
8. The mother and the paternal grandmother are restrained from allowing the child to have any contact with the father. That was the mother's preference and the paternal grandmother did not advocate for an order requiring the child to spend time with the father.
9. The mother is restrained from allowing the child to have any contact with Mr E. She invited an order to that effect.
10. The remaining orders either reflect those mutually proposed or could not be the subject of sensible resistance.
11. Some proposed orders are not made.
12. The mother and the paternal grandmother are adults and can reasonably be expected to act with commensurate maturity. No orders are made directing them how to communicate.[48]
13. No personal protection injunctions for the mother's benefit are made under s 68B of the Act, as she proposed.[49] She already has the benefit of State family violence orders against both the father and Mr E.[50] The Act restricts power to make more family violence orders in the exercise of federal jurisdiction (s 114AB). The mother can apply to the State Court to extend the State orders when they expire if she then feels the need to do so.
14. Proposed orders which are aspirational and unenforceable are not made.[51]
15. Proposed orders which have no ostensible source of power are not made.[52]
16. Costs are reserved for 28 days.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

[4] Mother's affidavit at [40], [150]-[159], [182]; Family Report at [43], [50], [51], [61], [95]

[7] Paternal grandmother's affidavit at [89]-[92]

[8] Paternal aunt's affidavit at [11]; Family Report at [64]

[9] Mother's affidavit at [108], [187]-[189]; Family Report at [67]

[12] Mother's affidavit at [41], [45]

[16] Mother's affidavit at [79]-[82], [102]

[17] Mother's affidavit at [87]-[88], [207]

[18] Mother's affidavit at [89]-[90], [208]-[217]

[19] Mother's affidavit at [191], Annex SB-21

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

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

[22] Mother's affidavit at [194], [201]-[206]

[23] Mother's affidavit at [195]-[198]; Paternal grandmother's affidavit at [86]

[24] Mother's affidavit at [137], [219]

[25] Mother's affidavit at [215], Annex SB-25

[27] Mother's affidavit at [146], Annex SB-11

[30] Mother's affidavit at [225]-[229]

[31] Paternal grandmother's affidavit at [11], [21]

[33] Paternal grandmother's affidavit at [36], [89]-[92]

[34] Paternal grandmother's affidavit at [9]

[36] Paternal grandmother's affidavit at [29], [31]; Family Report at [69]

[37] Paternal grandmother's affidavit at [27]-[28]

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

[39] Family Report at [55]-[56]; Paternal grandmother's affidavit at [15]-[18] and [24]

[40] Paternal grandmother's affidavit at [19]

[44] Amended Response filed 7/8/25, Orders 3-8 and 11

[47] Exhibit M5, Order 8; Amended Response filed 7/8/25, Order 9

[48] Amended Response filed 7/8/25, Orders 12-13

[50] Mother's affidavit at [18], [33], [129], [141], [150], [152]-[159] and [182]

[51] Exhibit M5, Orders 12; Amended Response filed 7/8/25, Orders 10, 13