Walsh & Linnane [2025] FedCFamC1F 698 (30 September 2025)

(a) inform the father in a timely manner of her proposed decision seeking his input allowing at least 14 days;

(b) consider any input from the father in a timely manner in relation to the proposed decision;

(c) make her decision in a timely manner; and

(d) advise the father of that decision, with the mother to have the ultimate decision.

1. The child spend time and communicate with the father as follows:

(a) On Saturday 11 October 2025 and Sunday 12 October 2025 from 9.00 am until 6.00 pm each day;

(b) On Saturday 25 October 2025 and Sunday 26 October 2025 from 9.00 am until 6.00 pm each day;

(c) Commencing Saturday 8 November 2025 and each alternate weekend thereafter, from 9.00 am Saturday until 6.00 pm Sunday;

(d) Commencing in term one of the child's first year of school, time pursuant to 4(c) be extended to commence each alternate weekend from 3.30 pm Friday until 6.00 pm on Sunday; and

(e) Commencing in term two of the child's first year of school:

(i) during school terms, from the conclusion of school on Friday (or 4.00 pm if a non-school day) until the commencement of school on Monday (or 9.00 am if a non-school day) each alternate weekend;

(ii) for a week in all Victorian school term holidays at times agreed and failing agreement for the first week from the conclusion of school Friday until 6.00 pm the following Friday; and

(iii) for half of the long summer holidays at times agreed and failing agreement on a week about basis with changeovers to occur at 6.00 pm Friday.

1. Notwithstanding any other order, the child shall spend time with his mother and father on special occasions at times agreed and failing agreement:

(a) for Christmas:

(i) with the mother from 5.00 pm Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 5.00 pm Boxing Day in 2025 each alternate year thereafter; and

(ii) with the father from 5.00 pm Christmas Eve until 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day until 5.00 pm Boxing Day in 2026 and each alternate year thereafter.

(b) for Easter:

(i) with the mother from 4.00 pm on the Thursday before Good Friday until 5.00 pm Easter Saturday and with the father from 5.00 pm Easter Saturday until 2.00 pm Easter Monday in 2026 and each alternate year thereafter; and

(ii) with the father from 4.00 pm on the Thursday before Good Friday until 5.00 pm Easter Saturday and with the mother from 5.00 pm Easter Saturday until 2.00 pm Easter Monday in 2027 and each alternate year thereafter.

(c) with the mother from 5.00 pm the night preceding Mother's Day until 5.00 pm on Mother's Day;

(d) with the father from 5.00 pm the night preceding Father's Day until 5.00 pm on Father's Day;

(e) for New Year's celebration:

(i) with the mother from 5.00 pm on New Year's Eve 31 December 2025 until 5.00 pm New Year's Day 1 January 2026 and with the father from 5.00 pm on New Year's Day 1 January 2026 until 5.00 pm on 2 January 2026 and each alternate year thereafter; and

(ii) with the father from 5.00 pm on New Year's Eve 31 December 2026 until 5.00 pm New Year's Day 1 January 2027 and with the mother from 5.00 pm on New Year's Day 1 January 2027 until 5.00 pm on 2 January 2027 and each alternate year thereafter.

(f) with the mother on the mother's birthday for a period of five hours from 11.00 am until 4.00 pm and should such a birthday fall on a school day for a period of three hours from 4.00 pm until 7.00 pm;

(g) with the father on the father's birthday for a period of five hours from 11.00 am until 4.00 pm and should such a birthday fall on a school day for a period of three hours from 4.00 pm until 7.00 pm; and

(h) for the child's birthday on 1 April:

(i) if the child is not already in the mother's care:

1. if it is a school day, from the conclusion of school to 7.00 pm; or
2. if it is a non-school day, from 1.00 pm to 6.00 pm.

(ii) if the child is not already in the father's care:

1. if it is a school day, from the conclusion of school to 7.00 pm; or
2. if it is a non-school day, from 1.00 pm to 6.00 pm.

1. The father's overnight time with the child is subject to the following:

(a) for the first ten consecutive overnight visits, at 10.00 pm each evening the child is in his care, and at 8.00 am the next morning the father complete a breathalyser test; and

(b) for the purposes of that test, the father shall:

(i) use a breathalyser device capable of connecting wirelessly with a compatible phone app, or a breathalyser with an inbuilt camera; and

(ii) forward to the mother photographic evidence of him using the breathalyser with the reading, date and time of the reading.

(a) fails to comply with Order 6; or

(b) any breath test completed at 8.00 am returns a reading in excess of 0.00 BAC; or

(c) any breath test completed at 10.00 pm returns a reading in excess of 0.05 BAC;

the child's time with the father shall revert to daytime only visits at times agreed, and failing agreement, between 10.00 am and 2.00 pm each alternate Saturday.

1. Unless otherwise agreed upon by the mother and father, all changeover to occur as follows:

(a) on school/kindergarten days, at the child's school or kindergarten; and

(b) on non-school/kindergarten days, at BP Service Station, Suburb B (C Street, Suburb B).

1. Each parent advise the other of any significant illness, injury or medical condition affecting the child while in that parent's care within 24 hours (save that in the case of emergency such advice be given immediately) and each parent be at liberty to:

(a) visit the child in the event of any hospitalisation;

(b) attend all medical appointments; and

(c) communicate with any treating medical or allied health practitioner and each parent do all such acts and things and sign all such documents (if any) that may be necessary to authorise such communication with the other parent including direct access to the child's medical records.

1. Each parent is to inform the other of any medications prescribed for the child by a Registered Medical Practitioner from time to time and provide the medication and appropriate instructions as to dosage and administration at the time of any changeover.

1. For the purposes of communication, the mother and father will:

(a) communicate via the parenting app AppClose (or other similar parenting communication App by agreement in writing) about day-to-day matters including arrangements for spend time with the child, any further matters regarding his health, welfare, medical and developmental needs, and future planning; and otherwise; and

(b) by telephone regarding matters of an urgent nature, or in the event of an emergency.

1. The mother and father shall keep the other updated as to any change to their residential address, email address and/or mobile phone number within 24 hours of any such change.
2. The mother and father be and are hereby authorised to:

(a) consult with teachers and request to obtain information regarding the child's education at their own expense; and

(b) attend upon school events that parents are usually invited to attend.

1. The mother and father be at liberty to provide a copy of these Orders to Services Australia, any kindergarten/school, medical practitioner, treating professional and/or support service that the child attends upon or is engaged with.
2. The mother and father give all necessary consents and authorities to enable to the other parent to obtain information concerning the children's education, healthcare and extra-curricular activities.

1. Each parent be permitted to travel interstate with the child during the time he is in their care.

1. The mother and father, their servants and agents be restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and

(b) discussing these proceedings with or in the presence or hearing of the child or permitting any other person to do so.

1. For 12 hours immediately prior to the commencement of any time spent with the child and during all such time spent, the father be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, or having a BAC above 0.05, save and except for:

(a) any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and

(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine) and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

1. The appointment of the Independent Children's Lawyer be hereby discharged.

1. Pursuant to s 65DA(2) and s 62B 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 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. The parents in this matter do not agree in relation to the appropriate arrangements for their one child, X, to spend time with his father. That child was born in 2020 and is five years old.
2. Unfortunately, this is a matter where, as observed by the Family Report writer:

The parties both appear to have reached a point of this lengthy parental dispute where they are so entwined and reactive to any question, curiosity or expression of concern from the other that they no longer are able to accurately identify risks or concerns.

1. In summary, it is the mother's case that the child's time with the father needs to remain limited to daytime visits. She says there is a risk that the father's consumption of alcohol will interfere with his ability to provide the child with safe and appropriate care. She maintains there are no mechanisms by which that risk can be ameliorated and accordingly, the child's time can never include overnight stays. She also seeks an order that the father provide a zero-alcohol breath test at the conclusion of any daytime visit. In addition, the mother raised concerns about the father's availability to regularly and reliably spend time with the child.
2. The father denied his alcohol consumption poses a risk to the child. He agreed with the orders proposed by the Independent Children's Lawyer for the child's time with him to gradually increase to three nights each alternate weekend, half of all school holidays and on special occasions. The Independent Children's Lawyer also proposed there should be a short amount of further monitoring of the father's alcohol consumption when overnight visits start - with the father to provide alcohol breath tests at 10.00 pm each evening and 8.00 am each morning that he has the child in his care for the first six weekends that overnight time takes place.
3. There were a number of matters on which the parents do agree, including that the mother shall have sole responsibility for making decisions regarding the child's long-term issues. The parents also agree on arrangements for changeover, the provision of information regarding significant illnesses suffered by the child, the mechanism for communication between the parents, a number of injunctions, and that the parents be permitted to travel interstate with the child whilst he is in their care. Those proposed orders are sensible, child focussed and appropriate.

1. The parents were in a short relationship between 2018 and around mid-2022. They never lived together. The mother has two older sons who are 12 and almost 10 years old. They live with her full time. The father also has an older daughter who lives with her mother in Western Australia. She is 18 years old. The father deposed that he sees her several times each year.
2. It is the mother's evidence that during the relationship, the father generally spent time with the child when the mother was present. She acknowledged that on occasion he did have the care of the child in her absence, for short periods. However, she said the father often struggled to cope. That is disputed by the father who said he was an engaged and involved father, including assisting the mother with her older boys. It is his evidence that the mother had no issues with him caring for the child and her boys prior to the parties' separation.
3. There is also a dispute between the parents as to the father's involvement with the child post separation. It is the mother's evidence she was generally present when the child spent time with the father. The father asserted he initially had regular, unsupervised visits.
4. Shortly after separation, the father accepted employment in New Zealand. His work roster required him to be present in New Zealand for three weeks and then in Australia for one. During the time the father was not working, he travelled to Australia to spend time with the child.
5. It is the father's evidence that it was only after he took the employment in New Zealand that the mother began to insist that time be supervised. To ensure he could see the child, the father engaged professional supervisors commencing in about August 2022.
6. The mother deposed she obtained an interim Intervention Order against the father in mid-2022. That was made final in late 2022. I do not know the basis for that Intervention Order. The mother was listed as the protected person. The child was not included. The father consented to the order without admission.
7. The father issued these proceedings on 19 December 2022. Orders were made for the child to spend supervised time with the father and for the father to complete Hair Follicle Tests ("HFT") for drugs and alcohol.
8. The father has undertaken seven HFTs between early 2023 and late 2024. The first sample provided could not be tested as the hair was insufficient. The other results for alcohol were as follows:

(a) May 2023 - 29.4 pg/mg low moderate (29.9 cutoff);

(b) September 2023 - 28.9 pg/mg low moderate (29.9 cutoff);

(c) December 2023 - 194 pg/mg excessive (29.9 cutoff);

(d) March 2024 - 81.3 pg/mg excessive (29.9 cutoff);

(e) June 2024 - 11 pg/mg low moderate; and

(f) October 2024 - 89.7 pg/mg excessive (29.9 cutoff)

1. Accordingly, the results for December 2023, March 2024 and October 2024 indicate the father engaged in a pattern of excessive alcohol consumption for at least the three months preceding the date of each sample.
2. Orders were made on 11 July 2023 - after the May 2023 low moderate result - which provided that the child's time would be unsupervised. However, if a further screen showed excessive alcohol use, time would revert to being supervised.
3. The sample provided in September 2023 similarly returned a reading of low moderate alcohol consumption.
4. The father said he and the child enjoyed about 20 unsupervised visits after the July 2023 orders, without issue.
5. The father undertook a further HFT in December 2023. He said he was surprised the result of that test once again showed excessive alcohol use. His explanation was that it was the end of the year and he had attended a number of social events.
6. The child's time with the father reverted to, and has since remained, professionally supervised.
7. After a subsequent test undertaking in March 2024 which again confirmed excessive alcohol consumption, the father said he ceased drinking alcohol.
8. The HFT result from the father's sample provided in June 2024 was at the lower range of the low to moderate alcohol consumption band. The father said he was also surprised at that result as he had ceased drinking alcohol for 10 months prior to the hair sample being provided.
9. The parents attended on the Family Report writer on 10 January 2025. According to the report, the father advised the writer that he had provided six HFTs which all returned an alcohol reading of low to moderate. That was incorrect information. The father also reported to the Family Report writer that he was drinking less at the time of interview than he previously did, and that he stopped regularly drinking alcohol a year ago. That information is difficult to reconcile with the results of the samples provided in March and October 2024. I note the report writer did not have the test results of 30 October 2024.
10. The child has enjoyed close to 50 supervised visits between August 2022 and the trial. Many of those were supervised by a Ms D. In relation to each visit the interactions between the child and father are described positively. It is plain that there have been significant difficulties arranging dates for supervised visits at times. The mother blamed the father for changing arrangements with little notice, asserting that he cancelled visits and described him as unreliable and inconsistent in spending time with the child.
11. Conversely, it was the father's evidence that the mother was often uncooperative regarding arrangements for the child to see his father. That included refusing to allow the father to attend a number of activities at the child's daycare and sports. The father said he has been committed and consistent with visits as far as possible given the limitations of him previously working in New Zealand. Both he and Ms D described the mother as inflexible in relation to making arrangements for time.
12. The mother lacked confidence in Ms D. In particular, in her oral evidence the mother expressed scepticism that the child's time with the father had progressed as positively as described. She believed Ms D was unprofessional, and felt the supervisors may have taken on the role of supporting the father rather than accurately reporting on the supervised visits. In her oral evidence the mother said she and Ms D had a "personality clash".
13. It was apparent that each of the parents sought to co-opt Ms D and inappropriately embroiled her in their conflict.

1. It has not been possible to include every aspect of each of the parties' evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
2. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.

(a) the mother's trial affidavit;

(b) Amended Response to Initiating Application;

(c) affidavit of Mr F, the mother's stepfather; and

(d) affidavit of Ms G, the maternal grandmother.

1. All documents were filed on 8 August 2025.
2. Only the mother was required for cross examination.
3. The mother is 45 years old. She works part time as a professional and is otherwise engaged with caring for the child and his two siblings. The mother has the support of the maternal grandmother with whom the child is also close.
4. The mother deposed to the father having been abusive and controlling of her during the relationship. She also described him as an unsupportive and inconsistent parent, who consumed excessive alcohol on almost a daily basis, causing him to become short tempered, aggressive and intolerant. She said he also combined alcohol and prescription drugs, and at times was too intoxicated to drive.
5. The mother remains critical and untrusting of the father. She impressed as anxious and apprehensive regarding the child's time with the father. The Family Report writer opined that the mother may be overly protective. The mother was unable to contemplate the child's time progressing to overnight as she believed there was no mechanism which could ensure the child's safety.
6. Unfortunately, the child is beginning to struggle with changeovers. He was described by the mother and her family as becoming quiet at the point of changeover, and being withdrawn, clingy and unsure of himself. In her oral evidence the mother asserted the child was becoming "more anxious, more wary, more scared" about spending time with his father. It appears he feels unable to express to his maternal family any joy at seeing his father.
7. The mother also gave evidence that she does not talk about the father to the child. This is in contrast to when he returns after time at kindergarten when the mother acknowledged she encouraged the child to share with her the best activity he participated in that day. However, she admitted she did not make any similar enquiry regarding the child's time with his father. She said she had understood she was "not allowed" to talk to the child about the father. That is misguided. The mother's silence about the father sends a clear message to the child - that his time with his father is not a subject about which his mother wishes to hear. The Family Report writer identified this as a problematic dynamic some seven months ago - observing:

For a child of [the child's] tender age who has two parents available to him that love and care for him, it is important that he is not exposed to any negative references in relation to either parent and that he feels able to talk openly about and to each parent when he is with either his mother or father, which does not appear to currently be the case.

1. Regrettably, the mother appeared to have little insight into her role in the child's reserved demeanour when transitioning between his parents. She was unable to consider the child would be aware of the tension and distrust between his parents and was likely responding to her anxiety and concerns. It was also obvious from the reports of the supervisors that the adults involved in caring for the child have engaged in inappropriate conversations and behaviours during changeovers. However, the mother remained resolute in her belief that the child's growing reluctance and hesitation reflected untoward behaviour occurring in the father's care or arose from the father's inconsistent attendance and was not in any way a response to her unintentional cues.
2. I share the concerns raised by the Family Report writer that the mother is unlikely to maintain positive promotion of the father to the child, and that the mother may struggle to contain adult conversations about the father "leading to [the child] being exposed to negative views about his father".
3. Mr F is the mother's stepfather. He was not required for cross examination. He deposed to events involving the supervisor. The dispute between the mother and the supervisor is not relevant to my determination about the child's care arrangements and I make no findings about those events.
4. Ms G is the maternal grandmother. She was not required for cross examination. Much of her evidence set out what she regarded as the father's limited involvement with the child. Ms G also referred to conflicts between the mother and supervisor, which as already observed, is not relevant to the issues with which I must grapple. Accordingly, her evidence is of little assistance.
5. It is important for the child's social and psychological wellbeing that the mother and her family reflect on what they can do to make it clear to him that they support his relationship with his father and give him permission to enjoy and relish that relationship.

(a) Amended Initiating Application filed 11 August 2025;

(b) the father's trial affidavit filed 11 August 2025;

(c) the father's reply affidavit filed 19 August 2025;

(d) affidavit of Ms E, psychologist filed 13 August 2025;

(e) affidavit of Dr H, toxicologist, filed 13 August 2025;

(f) affidavits of Ms D, contact supervisor, filed 16 March 2023, 12 February 2025 and 2 September 2025;

(g) affidavits of Ms J, contact supervisor, filed 9 February 2023 and 20 March 2023;

(h) affidavit of Ms K, contact supervisor, filed 12 February 2025; and

(i) affidavit of Dr H, toxicologist, filed 13 August 2025.

1. The father is 48 years old. He currently works in the construction industry for Company L. He rents a property in City M where he stays when present in Australia. He has remarried and he said his wife and her child are considering relocating to Australia from New Zealand. His current work roster requires him to be present in Australia about 20 days out of 30, with a 10 day block off which encompasses two weekends. However, he does not intend to remain working with Company L - and anticipates obtaining employment that will enable him to spend alternate weekends with the child and to participate in the child's extracurricular activities and social engagements and generally be more involved with his life.
2. It is the father's case that the mother unnecessarily interferes with and restricts the child's time with him. He said prior to him accepting work in New Zealand the mother allowed him to spend unsupervised time with the child. He said the mother's attitude then changed. She left voice messages in 2022 in which she referred to him as a "fucking psycho". She left another message that she was:

...taking back the control from the asshole guy that goes and takes a job in New Zealand, leaves his son and then tries the whole "she is not letting me see my son. Fucking crazy. Get help mate. The only person stopping you from seeing your son is you. And at the end of the day who takes a position in New Zealand not to see their son? You

1. The mother admitted she had left these messages.
2. The father acknowledged he drinks alcohol but denied his drinking was at a problematic level. He said he does not drink when he has the child in his care and only drinks socially or with clients. He said he does not drink at home. He said he is able to manage when he drinks and when he does not drink - having had a period of abstinence in 2024, and confining his consumption to periods that did not impact on his employment or responsibilities to care for the child. He does not have any plans to reduce his alcohol intake nor to seek any psychological support to do so.
3. The father was not accurate with the Family Report writer as to his alcohol history. The Family Report writer was under the impression the father had stopped consuming alcohol, save for recreationally, for the year before the appointments with her. The appointments were in January 2025. The HFT result from the sample provided on 30 October 2024 undermined the father's declarations to the report writer.
4. I also gained the impression that the father is very committed to seeing the child. He has spent considerable sums on professional supervisors. He has travelled between Australia and New Zealand to spend time on many occasions. He did briefly contemplate withdrawing his application in April this year - after years of exhausting litigation - but did not do so. He said he wants to be more involved in the child's life and will commit to being available on alternate weekends and half of the holidays so that the child can have a more reliable and consistent arrangement of time. He said he will not consume alcohol when the child is in his care.
5. I agree with the observations of the Family Report writer that the father has demonstrated a long-term commitment to the child and that he presented "with a genuine desire to follow through on this commitment".
6. Neither Ms D nor any other supervisor were required for cross examination. In the circumstances, I accept the observations of Ms D, and the other supervisors as to the child's time with the father and the father's presentation. The father was described as attentive, child focussed and well able to meet the child's needs. The child engaged well with his father. He was excited to see his father, and appeared comfortable, relaxed and happy in the father's care. On none of the occasions did any of the supervisors express concern regarding the father's interaction with the child, or his presentation. He was never observed to be affected by alcohol or recovering from the effects of alcohol.
7. The affidavit of Ms E was of little assistance. It does not appear Ms E had a lengthy therapeutic relationship with the father at the time she wrote her report. He attended upon her in early 2024 and her report is dated 4 March 2024. The father said in his oral evidence that he discussed his alcohol use with Ms E. Ms E's report does not suggest there was any significant counselling regarding the father's potential misuse of alcohol and how that might be addressed. The father also gave evidence that he attended on the psychologist on many occasions, but there was no updated report. Ms E was not required for cross examination.
8. Dr H is a forensic toxicologist. The report exhibited to his affidavit focused on the hair follicle samples collected in March 2024 and June 2024. He said the liver function test undertaken by the father in February 2024 did not suggest alcohol misuse. In relation to the June 2024 test returning a positive result for alcohol for a period the father said he was not drinking, Dr H said it was possible that the hair sample contained "residual EtG" from months earlier when the father had been drinking alcohol. Dr H was not required for cross examination.

1. The Independent Children's Lawyer relied on the Family Report dated 24 February 2025. The Family Report writer was required for cross examination. She was appraised of the results of the test undertaken in October 2024. She said that did not alter her recommendations. The issue was whether the father would consume alcohol whilst the child was in his care, and she remained of the view that there was no evidence this was occurring or would into the future.

1. Sensibly, the focus of the trial was the father's alcohol consumption and the father's ability to be regularly available to spend time with the child - as these matters are clearly germane to the determination of what arrangements for the child's time with his father will be in his best interests.
2. There were many disputed events deposed to by each of the parents and their witnesses that do not assist me to determine the "time with" arrangements. For instance, it is plain that the mother, her parents and the supervisor had some fraught and unpleasant exchanges. It is unnecessary for me to determine many of those factual disputes as the resolution of those disputes will not assist in determining what arrangements are in the child's best interests.

HOW ARE THE CHILDREN'S BEST INTERESTS ASSESSED?

1. Section 60CA of the Family Law Act 1975 (Cth) ("the Act") set out that when deciding whether to make a particular parenting order in relation to a child, the best interests of the child must be my paramount consideration.
2. The objects of Part VII of the Act inform how I must exercise my discretion. Those objects include ensuring that the best interests of the child are met, including by ensuring their safety (s 60B(a)). The legislation further provides that I must also give effect to the 1989 Convention on the Rights of the Child (s 60B(b)).
3. Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account in determining the child's best interests, being:

(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.

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.

1. Section 4AB of the Act provides a wide definition of family violence, which includes "sexual assault or other sexually abusive behaviour".

1. The father's alcohol consumption - and whether this presents a risk to the child that cannot be ameliorated - was central to the mother's case. In addition, counsel for the mother made submissions that any orders for time needed to placate the mother's worry and anxiety about the child's wellbeing whilst in the father's care. Essentially it was argued that the child would be adversely impacted if orders were made for time that the mother felt unable to support as this could impact the child.
2. The father acknowledged he consumes alcohol. However, he said he does not do so when he has the care of the child. He also said his alcohol consumption is not at a problematic level - as it does not interfere with his employment or other aspects of his life. He said he does not drink alone at home and only drinks socially and at work functions.
3. The results of the HFTs indicate that as recently as the three months predating the October 2024 test, the father regularly consumed alcohol to excess. I have some disquiet that the father minimised his alcohol consumption at interview with the Family Report writer and that he has refused to participate in any further HFTs after the sample provided in October 2024. It is not unreasonable to assume that any further HFTs would have continued to demonstrate a high level of alcohol consumption. The father conceded this under cross examination.
4. However, it is important to note that whilst the HFT results identify a general pattern of excessive consumption - they do not indicate how much was consumed on any particular day or whether there were days the father abstained, or the level of impairment at any particular time.
5. It is curious that the father has chosen to continue to drink socially - and at excessive levels - when he is aware of the mother's anxieties in this regard. However, there are a number of factors that demonstrate the father's alcohol consumption is not at a level that will expose the child to risk such that overnight visits cannot commence. For instance, the father continues to hold a job in the construction industry. This requires him to participate in daily breath test alcohol screens and random oral fluid drug screens. He has never failed a screen at work. He has no record of drink driving. He has no history of criminal offending. He was able to substantially reduce his consumption in the months preceding the sample collected in June 2024. The father adduced a number of alcohol and drug test results from his employer - spanning a period from March 2023 to October 2024. The mother could have subpoenaed the father's workplace if she sought more up to date information. She did not do so.
6. I also have the benefit of the report of Dr H which refers to a blood test performed in February 2024. The report describes:

all liver enzymes, in particular GGT, Alkaline Phosphatase, AST and ALT were within the normal range.

and that those results provided no evidence that alcohol was being misused at least between early February 2024 and the date of collection.

1. I also have the benefit of supervisor's reports of almost 50 visits. The father was never identified as appearing alcohol affected.
2. These matters give me significant comfort.

1. The mother also deposed that the father's mental health was a concern for her and that she was fearful for the child's safety in an unsupervised setting unless these issues were "appropriately addressed and managed".
2. The father acknowledged he has had mental health struggles "in the past". He said he was prescribed antidepressants and anti-anxiety medication by his general practitioner. He said he continues to take the antidepressants. He takes the anti-anxiety medication when needed.
3. The father's mental health received little attention at the final hearing.
4. The father attended upon a psychologist who produced a report. As already noted, that report was of limited assistance as at the time it was written, the therapeutic relationship was in its infancy.
5. I am not satisfied the father's mental health functioning is such that it would negatively impact on the child or pose any safety risk. The Family Report writer did not identify any significant issues that required further assessment or consideration in this regard. I accept her observations that the information provided to her in the course of her assessment did not indicate any evidence that either parent laboured until a serious mental illness. I further accept her conclusion that there was:

...no indication that there are any risk issues that would impact on [the child] and the parties parenting capacity due to the mental health vulnerabilities that the parties have identified.

1. The child told the Family Report writer that he would like to see his father more and he "misses" him. It is clear he enjoys spending time with his father. He is currently attending three days a week at childcare. He is due to start primary school in 2026.

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

1. The child appears to be progressing well. He does suffer from asthma, but is meeting his milestones. He will commence primary school in 2026.
2. The father is from Country N. There was little adduced at trial regarding the child's Country N heritage. In the Family Report there was some reference to the child's Country N connections - with the father having indicated he would like the child to have the opportunity to meet his extended paternal family who live in Country N. The father also told the Family Report writer he was teaching the child Country N language.

Capacity of each person who has or is proposed to have parental responsibility for the child to provide for their developmental, psychological, emotional and cultural needs

1. I am satisfied that each of the parents is able to meet the child's needs. I have already set out the observations made by the supervisors over the course of many visits. It is apparent from their reports that the father attends well prepared and is responsive to the child's cues.
2. Additionally, both parents were observed with the child by the Family Report writer. She described a warm greeting between father and son, and that the father was clearly attuned to the child's needs, energy levels and curiosity. The child also welcomed his mother into the room with warmth and excitement, and the mother similarly appeared to be an attuned and attentive parent.
3. The mother asserted the father was not consistent and reliable in attending for time with the child. Whilst I accept there have been occasions when time did not occur for a short period, it is also apparent time has occurred on a great many occasions, at significant expense to the father. He has met substantial costs of professional supervision and travelling to Australia to spend time with the child.
4. It is true that prolonged and unexplained absences from, and inconsistent visits with a parent could cause a child some concern and anxiety. I note the father's evidence that he prioritises the child and is prepared to commit to an alternate weekend arrangement. It is his plan to cease working as a fly in/fly out worker, and to live primarily in Australia to foster and strengthen the child's relationship with him. That will provide the child with a more consistent, certain and predictable routine for time with his father.

The benefit to the child of being able to have a relationship with their parents, and other people who are significant to the child

1. The parties agree there are benefits to the child having a relationship with both of his parents. He also has a close relationship with his older brothers and his maternal grandmother. Those relationships are all important to the child.

Any other matters of relevance to the particular circumstances of the child

1. The child has asthma. It is part of the mother's case that as a result, the child needs close monitoring at certain times of the year and could need to be taken to hospital. She said she would be concerned that the father would be unable to appropriately care for or transport the child if he was alcohol affected.

The history or family violence, abuse or neglect, and any family violence order that applies or has applied

1. The mother deposed to the father having hit her older children on occasion including on a camping trip in April 2022. She also said that occasion the father threw the child on the floor. The father denied all allegations.
2. The mother also deposed to having been physically and sexually assaulted by the father and subjected to verbal abuse and denigration, and coercive control. Again, the father denied the allegations of violence and coercive control.
3. The mother acknowledged she had used abusive language towards the father in a number of voicemails post separation. She also named his email contact "loser Devil" in email communications which could be seen by all recipients. She demonstrated limited remorse for doing so - and appeared to believe her use of language could be appropriately contextualised.
4. The mother obtained an interim Intervention Order in mid-2022, and a second Intervention Order in late 2024.
5. In relation to that first Intervention Order, that was made final, by consent without admission in late 2022. It was for the mother's protection only. The mother deposed the father was charged with breaching the order by communicating with the mother. The father deposed that the police interviewed him twice and took no further action. I was provided with no independent evidence to support the assertions of either party.
6. The subsequent Intervention Order arose in circumstances where the father requested the police undertake a welfare check on the child whilst in the mother's care. The mother felt this was a continuation of the father's attempts to intimidate her and sought an Intervention Order for her protection. That limited, and interim, Intervention Order includes the mother, the child and the mother's older children as protected persons. The application was initially brought by the police. However they withdrew from those proceedings in mid-2025, and the mother is now the applicant. The matter is listed for further hearing in late 2025. In her oral evidence the mother said there were mutual Intervention Order applications to be heard that day.
7. The father also sought an Intervention Order against the mother in around September 2022. The mother said that application was dismissed.
8. The allegations and counter allegations of family violence were not the focus of the hearing before me, and no counsel asserted I needed to make findings about these allegations in order to determine the child's time with his father.
9. I note further that the violence alleged substantially occurred during the parents' relationship. As observed by the Family Report writer, the separation of the parents is a protective factor for the child.

1. It is apparent from the evidence before me that the child is becoming more aware of the parental dispute. He is beginning to struggle to move between his parents. He appears to feel the need to 'keep secrets' and tell negative stories about one parent to the other. As is sadly so common in family law disputes, rather than reflecting on their own behaviour and how that may be contributing to the child's struggles and stress, the parents both immediately blame the other. The long-term consequences for the child if the parents continue to do so may well be profound - impacting on his sense of self, his sense of safety and security, and even on his ability to form and maintain relationships with peers and intimate partners.

1. The parents sensibly agree that the mother shall have sole responsibility to make decisions regarding the child's long-term care. It is plain the parents would struggle to liaise respectfully and come to joint agreements regarding the child's care.

1. The parents also agree the child shall remain living in the mother's primary care.

1. I am satisfied that the father consumes alcohol to excess and that he has sought to minimise his level of consumption. However, as already observed, the father has maintained employment with significant responsibility. He has provided multiple screens for his employer which must have been alcohol free. The father was also able to substantially reduce his alcohol intake at least for a period of some months in 2024. He has not been observed to be alcohol affected at any supervised contact visit between 2022 and 2025. He has no drink driving history. The father also said he does not - and will not - consume alcohol when he has the care of the child. There were also a number of unsupervised visits that occurred in 2023 - and the mother does not depose that the father appeared alcohol affected at any changeover.
2. I am satisfied that the child's best interests will be met by orders that provide for the child to spend gradually increasing time in his father's care, including overnight time. Provided it is safe, it is important for the child to have the opportunity to spend extended periods in his father's care. At five years old, the father's participation in the child's bedtime routine - eating together, bathing the child, reading to him and putting him to bed, as well as then waking together the following morning - is important. Such activities will serve to strengthen the father-son bond.
3. Time should increase gradually, given that the child is quite young and has only just commenced unsupervised visits. The parents agreed to unsupervised time commencing and interim orders were made by consent on the last day of trial for time to occur from 10.00 am to 6.00 pm one Saturday a month, and one Sunday a month, unsupervised, with the father to undertake a breath test on each occasion. That time will have occurred pursuant to those interim orders on 14 and 27 September. My orders provide for the time to then increase for two alternate weekends on the Saturday and Sunday of each weekend, and then overnight time will commence on 8 November 2025. I am satisfied this is an appropriate progression of time, to provide the child with the opportunity to become more familiar with the father before overnight time commences.
4. In circumstances where the mother is anxious about the child's safety in the father's care, and in circumstances where the objective evidence of the HFTs indicates the father engages in a pattern of excessive alcohol consumption I am satisfied it is appropriate there be some further monitoring of the father's alcohol consumption when the child is in his care overnight, to ameliorate any risks. I do not regard it as necessary that the weekends of daytime that will occur in October also be subject to breath testing. The risk appears to be greater when the children is spending overnight, and accordingly, the testing will be required only at that time.
5. I am of the view that this monitoring should occur for longer than the six overnight visits as suggested by counsel for the Independent Children's Lawyer. In my view, the first 10 overnight visits shall be subject to the provision of a breath test. That will extend into the new year and will include the first few weekends of two overnights as well.
6. I am also of the view that the father does not have to produce a zero reading at all times - but must remain at or under a BAC of 0.05 so that he is able to transport the child if necessary. I will return to this shortly.
7. I accept my orders are not fool-proof. Despite giving evidence under oath that he will not consume alcohol when the child is in his care, the father may commence drinking heavily after performing the breath test at 10.00 pm and be significantly intoxicated for a period overnight. I hope he does not choose to do this. If he does breach the orders, there will likely be significant consequences.
8. In the event the father returns a reading of in excess of 0.05, time will immediately revert to shorter, daytime visits only. If he tests positive for alcohol at 8.00 am in the morning, or should he fail to complete a test, time will similarly immediately revert to shorter, daytime visits.
9. I agree with the recommendations of the Family Report writer that the first increase should be two full days for a short period, before progressing to overnight visits.
10. I am also satisfied that from the term two holidays in 2026, the child should also share the holidays with each of his parents. This will give him a further opportunity to spend extended periods with each of his parents, allowing him to travel interstate and enjoy other activities.

1. The father proposed additional orders regarding international travel. Those orders were opposed by the mother. Counsel for the father conceded there was no evidence before me regarding the child travelling abroad. Accordingly, I will not make any orders in that regard.

1. The mother proposed the father's BAC be required to be zero at all times he has the child in his care. I do not agree this is necessary. First, there can be reasons that a breath test returns a reading greater than zero which are not the result of the ingestion of alcohol. Secondly, the mother's concerns are about the father becoming incapacitated and making poor judgments as a result of excessive alcohol consumption when the child is in his care. That will not occur provided the father ensures his BAC remains no greater 0.05 at all times. Accordingly, I will not require the father remain completely alcohol free at all whilst the child is in his care but he should not consume alcohol to the extent he would be unable to legally operate a vehicle.
2. For the period that breath testing is to be done, the father must not exceed a BAC of 0.05 at 10.00 pm in the evening, and he must be alcohol free by 8.00 am in the morning. It would clearly be of concern if the father's BAC was 0.05 at 8.00 am - which would suggest heavy ingestion of alcohol over the evening when he has the child in his care.

1. The balance of the orders sought by the parties - including changeover arrangements communication between the parents, and the provision of information and the injunctions - are all appropriate and in the child's best interests.
2. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.