Kemp & Vinson [2022] – Parenting Orders for Equal Shared Responsibility and Structured Parental Contact

JUDGE MURDOCH

INTRODUCTION

1. This matter relates to the parenting arrangements for X born in 2014 (“X”) aged 7 years and 10 months.
2. The applicants in this matter are X’s biological parents who remain together in a relationship. X has not seen the applicants since 15 July 2015 when she was nearing 1 year of age. X has been in the care of the respondents since her birth. The respondents were in a relationship at the time X came into their care but subsequently separated. They have an informal agreement between them that X live with each of them on a week-about basis.
3. The central issue for determination by the Court is what time, if any, X should spend with the applicants and the nature and form any such time should take.

THE COMPETING PROPOSALS

4. When the final hearing began the applicants were seeking orders from the Court that they share parental responsibility for X, that X live with the biological mother and spend time with the respondents as agreed between all the parties.
5. At the conclusion of the evidence the applicants agreed with the Minute of Order provided at that time by the Independent Children’s Lawyer to the Court. The applicants and the Independent Children’s Lawyer seek orders in effect that:-
   • X live with the respondents who shall have equal shared parental responsibility;
   • all parties will continue to engage in therapy with Mr D;
   • X will spend time with the applicants for a period of 6 months at E Contact Centre Suburb F at times and dates as provided by the Centre;
   • for a period of 4 months X shall then spend time with the applicants each alternate Saturday from 10:00 am to 2:00 pm in a public place;
   • thereafter X shall spend time with the applicants each alternate Saturday from 10:00 am to 5:00 pm;
   • Orders be made restraining the parties from denigrating each other or discussing these proceedings within X’s hearing;
   • the applicants are not to consume any illegal substances 48 hours prior to or during the time that X is in their care; and
   • Ms Kemp will immediately return X to Mr Vinson’s care if she feels X is at risk of any exposure to family violence.
6. The respondents agree that they both wish the Court to make orders that:-
   • the respondents have equal shared parental responsibility for X;
   • X live with each of the respondents as may be agreed between them, and failing agreement on a week-about basis;
   • the orders sought by the applicants be dismissed; and
   • costs.
7. All the parties and the Independent Children’s Lawyer agree that X shall live with the respondents who shall have equal shared parental responsibility. The respondents assert that X will be at an unacceptable risk of harm should she spend any time with the applicants and seek that no orders be made for X to spend time with them.
8. I will be required to determine whether X is placed at an unacceptable risk of harm in the applicants’ care. If I find that there is an unacceptable risk to X in spending time with the applicants, I will then need to determine whether there are any orders that I could make that would lessen the risk to such a degree as to make it acceptable.

THE EVIDENCE

9. The applicants relied upon:
   • the Amended Initiating Application filed 2 December 2019;
   • Ms Kemp’s affidavit filed 29 March 2019;
   • Mr Kemp’s affidavit filed 2 December 2019; and
   • documents tendered by them during the hearing.
10. Mr Vinson relied upon:-
    • the Amended Response to Initiating Application for Final Orders filed 25 November 2020;
    • his affidavit filed 3 February 2022;
    • the Notice of Risk filed by him on 28 October 2020;
    • the first applicant’s Notice of Risk filed 29 March 2019;
    • the Child Dispute Conference Memorandum to the Court dated 6 August 2019;
    • the Family Report dated 4 August 2021;
    • the Case Outline filed 22 March 2022; and
    • documents tendered by him during the hearing.
11. Mr Budd relied upon:-
    • the Response filed 4 February 2020;
    • his affidavit filed 17 January 2022;
    • the affidavit of Ms J filed 18 January 2022;
    • the affidavit of Mr K filed 4 September 2020;
    • the Family Report dated 4 August 2021;
    • the Case Outline filed 21 March 2022; and
    • documents tendered by him during the hearing.
12. The Independent Children’s Lawyer relied upon:-
    • the Minute of Orders sought by the Independent Children’s Lawyer;
    • the Family Report dated 4 August 2021;
    • the affidavit of Dr D filed 14 February 2022;
    • the Case Outline filed 15 March 2022; and
    • documents tendered by the Independent Children’s Lawyer during the hearing.
13. Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48.

THE CHILD

14. X is currently in year 2 at L School at Suburb M and appears to be reaching her developmental milestones. She attends N After School Care and undertakes a range of extra-curricular activities including swimming and other activities. She can understand the Country O language but does not speak it. X is aware that Mr Vinson and Mr Budd are not her biological parents. Dr D opined that “There is no doubt she is thriving in her environment. The question is her sense of identity.”

THE PARTIES

15. In this matter the applicants represented themselves at the final hearing. Whilst the Court file records the biological mother’s surname as Ms Kemp, as she now prefers to be addressed as “Kemp” she will be referred to as such in this judgment. Save for the final submissions, Ms Kemp spoke and questioned the witnesses on behalf of the applicants. Self-representation meant there was no “filter” via a legal representative of the applicants’ interactions with the Court. I was able to observe and interact with both the applicants more than is usual when parties are represented. This hearing was a raw and emotive experience for the parties. The applicants’ sense of loss and grief at the situation they are in with respect to X was palpable. Both the applicants at all times conducted themselves appropriately and with dignity, even in the context of significant criticisms levelled by the respondents as to their past behaviour. They are to be commended for their manner and conduct throughout the hearing.
16. The applicants are Country O. They are married and reside together in Suburb Q, New South Wales with their youngest child R who was born in 2021 together with Ms Kemp’s older children Mr S (21 years), Ms T (20 years) and U (15 years). Mr Kemp’s three older children V, W and Y live with their mother in Country Z. Ms Kemp is 39 years of age and works approximately 20 hours per week on a casual basis with Employer AB. Mr Kemp is 44 years of age and is employed on a full-time basis as a manual labourer. He works weekdays as well as some Saturdays. Both parties now have a driver’s licence.
17. I found Ms Kemp to be an impressive witness. She was forthright and direct in cross-examination. She made appropriate concessions immediately. I found her evidence to be convincing.
18. Mr Kemp also made appropriate concessions and showed insight as to his past behaviours. I found his evidence credible.
19. Mr Vinson and Mr Budd have now separated but live in close proximity to each other. To their credit they have been able to continue making arrangements for X’s care without Court intervention subsequent to their separation.
20. Mr Vinson is Country O and works on a full-time basis during usual business hours. X attends out of school care when he is working. He lives in a 2 bedroom home in Suburb AC. He has a driver’s licence but does not own a car. I found Mr Vinson to be forthright and candid in his evidence. He made appropriate concessions. I found his evidence to be convincing.
21. Mr Budd is a managing director of a company and has recently moved to a 4 bedroom house. He works flexible hours and is able to work either during school hours or from home when X is in his care. I found Mr Budd was sometimes more focused on presenting his reasons and justifications for past behaviours than answering the questions put to him in cross-examination. He did at times make concessions as to some of his past behaviours.
22. I must at this juncture acknowledge the invaluable assistance I received during the hearing from Ms Hernandez, the Independent Children’s Lawyer and her Counsel, Mr Katsinas. Both ensured that all relevant evidence was before the Court and made helpful submissions in circumstances where the applicants did not have the benefit of legal representation.

FURTHER WITNESSES

23. Mr Budd’s mother, Ms J and brother, Mr K, gave evidence on behalf of Mr Budd. Their evidence did not assist me in any meaningful way in the determination of the issues before the Court.

BACKGROUND

24. The applicants commenced a relationship in approximately 2013. That same year an Apprehended Domestic Violence Order was made for the protection of Ms Kemp and restricting the behaviour of Mr Kemp.
25. The applicants became pregnant with X in late 2013. At this time they were experiencing difficulties in their relationship. Mr Kemp was consuming drugs including ICE and marijuana together with a significant amount of alcohol on a daily basis. He was unable to support himself financially. Ms Kemp was consuming marijuana and was struggling both emotionally and financially. They had three children at the time and did not feel they would be able to cope with a fourth child. X remained in the Country O community by being placed by the applicants with Mr Vinson, who is described as a “distant cousin” although there is no biological relationship. The applicants reported to the Court Child Expert that arrangements such as this are not uncommon in their Country O community.
26. Mr Vinson at this time was in a relationship with Mr Budd. As conceded during the course of cross-examination they were both aware at the time of X’s birth as to the drug issues and living conditions of the applicants at this time.
27. The parties are in dispute as to the agreement relating to X’s placement with Mr Vinson. I am satisfied that Mr Kemp did not object to the arrangements made but did not take an active part in the decision making process. The applicants contend that it was agreed that X would live with the respondents and spend time with the applicants each alternate weekend and half the school holidays. Ms Kemp asserts that the plan was for X to grow up with one mother and three fathers.
28. The respondents asserted in their written evidence that the parties agreed that X would live with the respondents who would have parental and financial responsibility for her, with Ms Kemp being known as “mum” and Mr Kemp being known as “uncle.” They conceded that it was agreed between the parties that the applicants would continue to be a part of X’s life, with Mr Budd agreeing that X’s biological siblings would be recognised and introduced to X at the appropriate time.
29. Mr Vinson’s oral evidence was that it is quite common in the Country O culture for children to be placed in the care of other families to raise if a particular family is facing some sort of difficulty. It is not Country O culture for the biological parents to thereafter be cut out of the child’s life. I am satisfied and find that it was agreed between the parties that, at the least, the applicants would continue to be a part of X’s life and spend time with her, although X would be cared for by the most part by the respondents. On the evidence before me I cannot make a finding as to the specific time arrangements that were made at this time.
30. All four parties were present at the hospital when X was born in 2014. After 3 days X was released from hospital and commenced living with the respondents. By agreement between Ms Kemp and the respondents, Mr Vinson was named on the Birth Certificate as the biological father.
31. There is disagreement as to the time X spent with the applicants from her birth to July 2015. Whilst the respondents assert that in January 2015 they decided that they were no longer willing to facilitate unsupervised time between X and the applicants as they were concerned as to the applicants’ living conditions, text messages contained in Exhibit C between Ms Kemp and Mr Vinson dated 22 April 2015 through to 9 July 2015 contain amicable discussions and arrangements being made for X to stay with Ms Kemp overnight. I am satisfied and find that up until July 2015 there was mostly a respectful and cordial relationship between the parties and X spent time with the applicants, including overnight.
32. On 15 July 2015 the respondents took X to City AD, Country C due to Mr Budd’s work commitments. The respondents obtained Ms Kemp’s consent to the trip and she signed X’s passport. I am unable to make a specific finding as to the agreement or understanding reached between the parties prior to X and the respondents departing for Country C as to the length of time X would stay in Country C. However, whilst Ms Kemp contends she only consented to X living in Country C for a period of 6 months, Facebook messages between Ms Kemp and Mr Vinson dated 10 October 2015 show the mother raising no objection upon ascertaining from Mr Vinson that they would be returning to Australia in October 2016.
33. X has not spent any face to face time with the applicants since she departed for Country C on 15 July 2015.
34. The applicants relocated to Victoria around the time that X and the respondents left for Country C.
35. It is clear that the relationship between the parties deteriorated from this time. Telephone time between X and the applicants did not proceed smoothly. Mr Vinson asserts that he told Ms Kemp she needed to telephone X when she was awake and that caused a deterioration in their communication.
36. In November 2015 Mr Budd and X came back to Australia to attend a family funeral. They returned to Country C in January 2016. X did not see the applicants during this time.
37. In approximately January 2016 Ms Kemp deposes she and Mr Vinson had a verbal argument as X had not returned to Australia. She asserts that Mr Vinson then blocked her on both social media and from being able to telephone him.
38. The respondents travelled back to Australia for a period in June 2016. X did not see the applicants during this time.
39. X and the respondents returned to Australia to live in September 2016. They had been in Country C for a period of 16 months during which time X had not seen the applicants.
40. The relationship between the parties deteriorated further. The respondents did not advise the applicants that X had returned to live in Australia. Ms Kemp sent a text message to Mr Budd in November 2016 complaining that they had not been informed by them that X had returned from Country C and asking that X be returned to the applicants’ care. Mr Budd conceded Ms Kemp was upset that she had not been told the respondents had returned from Country C because she wanted to see X.
41. On 20 December 2016, X and the respondents travelled to Country O to spend time with Mr Vinson’s family, returning to Australia at the end of December 2016. X and Mr Vinson then visited Country Z a week later for another family event. There is no evidence that the applicants were advised of any of these trips.
42. On 10 March 2018 Ms Kemp attempted to contact Mr Budd via Facebook Messenger. At this time she asks of Mr Budd why they are avoiding her and assures them that she is not under the influence of drugs and has done a drug test to prove it. “I just want to be a mother to X. You know she will eventually want to know who I am. You guys left me no choice but to go through court. I don’t know what else to do to make you guys understand but we all know I never gave up my rights as her mother.”^[1] A later message shows the mother saying “I have tried to reach out and it’s clear that you both are trying to cut her rights from having a relationship with her mother. This isn’t about what’s best for my daughter. This is about you both trying to control her and what’s best for you two.”^[2]
43. On 11 June 2018 Mr Budd writes to the mother:

Please stop contacting me via Facebook messages, via text, via phone and any other means. I have already advised you I can not talk to you when you last called me but you have persisted. Continue to harass me this way and I have no other option but to take the next step. Do not contact me again.^[3]

44. On 8 August 2018 Ms Kemp made several phone calls to Mr Budd’s place of employment. These are discussed further below.
45. On 8 August 2018 the respondents were interviewed by Police following a report being made as to X’s safety. At this time the respondents made a complaint about Ms Kemp contacting them.
46. The respondents have continued to co-parent X on a week-about arrangement subsequent to their separation in 2018.
47. From December 2018 to February 2019 Ms Kemp was in Country Z after a death in the family.
48. The applicants returned to live in Sydney in 2019.
49. Ms Kemp commenced proceedings in this Court on 29 March 2019 seeking orders that X live with her and spend time with Mr Vinson as agreed in writing.
50. Police conducted a welfare check on X on 18 and 19 April 2019.
51. The applicants married in 2019.
52. Mr Kemp moved back to Country Z in September 2019 to care for his ill mother. He returned to Australia on 1 December 2019.
53. Judge Harman made Orders by consent on 3 December 2019 (“the interim Orders”):-
    • naming Mr Kemp as the second applicant in the proceedings;
    • that in the event that Mr Budd wished to become a party to the proceedings he was to file a Response within 60 days and would thereafter be named as the second respondent;
    • the applicants and Mr Vinson were to engage with Dr D for reportable family therapy for the express purpose of introducing X to her biological parents, with Mr Budd to take part in such therapy if Dr D made such recommendation;
    • within 7 days the parties were ordered to contact E Contact Centre Suburb F to register X with that service and if such time becomes available, time was to commence at the first available opportunity and at times set by the Centre.
54. On this same date the applicants registered with E Contact Centre.
55. On 4 February 2020 Mr Budd joined the proceedings and sought orders discharging the interim Orders for supervised time and family therapy with Dr D.
56. Mr Vinson did not register with E Contact Centre until the 5 February 2020. He did not complete the intake session until the 10 August 2021.
57. Mr Budd never participated in the intake session with E Contact Centre. As a result, time between X and the applicants has not commenced pursuant to the interim Orders.
58. On 9 February 2021 Mr Vinson filed an interim application to set aside the interim Orders for supervised time. It was dismissed by the Court on 8 April 2021.
59. In early March 2021 the applicants placed a photograph of X in her school uniform on their Facebook page. The respondents had the image deleted, however, after observing others posting photos of X on other accounts, Mr Budd attended the Police and an Apprehended Domestic Violence Order was sought for the protection of X prohibiting the applicants from approaching X’s school, childcare and home. These Orders were not sought to be made subject to any Orders of this Court.
60. Orders were made on 21 April 2021 on the Court’s own motion removing Mr Vinson’s name and inserting Mr Kemp as the biological father on X’s birth certificate.
61. On 15 October 2021 Mr Budd filed an interim application seeking to discharge the Orders made by the Court on 3 December 2019 for family therapy with Dr D and for X to commence supervised time with the applicants. Such application was stood over to the final hearing of the matter.
62. On 23 February 2022 final Apprehended Domestic Violence Orders were made prohibiting the applicants approaching or going within 100 metres of any school, childcare facility or home that X attends absolutely for a period of 2 years. It does not allow for contact pursuant to any orders made pursuant to the Family Law Act 1975 (Cth) (“ the Act”).

The Cessation of X’s time with the Applicants

63. The respondents submit that one of the reasons that X should not spend time with the applicants is because they have not been involved in X’s life to date. Mr Budd especially is very critical of the lack of involvement by the applicants in X’s life.
64. It is clear and I find that it was the respondents who stopped the time between X and her biological parents. There were various reasons that were proffered for them doing so.
65. The respondents asserted that they told the applicants in January 2015 that they would no longer allow X to spend time with them at their home due to the state of the applicants’ living conditions. Despite this assertion, the evidence clearly shows that X spent time, including overnight time, with the applicants up until the respondents took her to Country C.
66. The respondents asserted that they stopped time between X and the applicants due to the verbal abuse they began receiving from the applicants, including threats as to kidnapping – they felt the applicants were not communicating in a civil manner. When asked by Counsel for the Independent Children’s Lawyer what changed whilst they were in Country C to stop the biological parents from seeing X upon their return to Australia Mr Vinson’s evidence was: “The – me and – when my cousin passed away – I think it was around 2015 – me and X travelled to Country Z for my – for my cousin’s funeral, and the abuse.”^[4]
67. The oral evidence of the respondents was that:-
    • Approximately one month after X’s birth Ms Kemp started becoming emotional and began expressing doubts to the respondents about placing X in their care. Mr Vinson felt threatened by this. Mr Budd too conceded that he felt threatened as the communication from the applicants changed from wanting to see X, to wanting X back.
    • No attempts were made to kidnap X.
    • There were times the applicants reached out to the respondents to try and arrange to spend time with X and the respondents declined to allow this to occur. They ignored messages from the applicants requesting to see X. It was conceded that the respondents effectively shut Ms Kemp out of X’s life completely.
    • The “verbal abuse” alleged by the respondents appear to be in Mr Budd’s own words “the language changed from you wanting to see her to demanding that we give her back. By then, she had already had an established life… With established parents, with established community, and that’s not what the original agreement was when we first went down this path.”^[5]
    • The “harassing phone calls” by Ms Kemp over a number of days around the 8 August 2018 that were the subject of a complaint by Mr Budd to the Police occurred in the context of Ms Kemp’s prior attempts to speak or contact Mr Budd being ignored. Ms Kemp tried to phone Mr Budd three times at work that day. He did not give her a reason as to why he did not want her to contact him. With the benefit of hindsight Mr Budd acknowledged that Ms Kemp was just trying to contact him for the purpose of spending time with X and he was “just blocking her”.
    • It was conceded that because the relationship between the parties broke down the respondents blocked the applicants from seeing their daughter.
    • On 4 February 2021 Mr Vinson sent a text message to the mother “AE” which means “fuck you” in English.
68. I accept and find that the interactions between the parties from July 2015 became hostile. I am satisfied and find that Ms Kemp began expressing doubts at the decision to place X in the respondents’ care. The respondents were concerned that X would be taken away from their care and began thwarting the applicants’ attempts to see X. It was a self-fulfilling prophecy. The applicants became upset as they felt they were being shut out of X’s life and responded in an emotional way. The respondents perceived such responses to be abusive and further shut the applicants out of X’s life. I find that it was not reasonable for the respondents to stop time between X and the applicants and were not child-focused. I found this exchange during cross-examination insightful:

[THE FIRST APPLICANT] You haven’t given me the opportunity. You took the opportunity away from me. You almost tried – I turned to you for help. Can you say that you actually gave me the opportunity to be a mum and have a meaningful relationship?

[THE FIRST RESPONDENT] No.^[6]

REPORTABLE FAMILY THERAPY

69. Dr D has been facilitating reportable family therapy with the parties since March 2020. Her many qualifications and significant expertise over 30 years including the assessment and treatment of children and adults in family law matters was not the subject of challenge. None of the parties asserted that Dr D reported something said to her incorrectly.
70. Dr D saw the applicants in joint sessions in March and September 2020. She saw Mr Vinson and Mr Budd individually in June 2020 and together in April and June 2021. X and the respondents were seen together on 7 December 2020. A further appointment was scheduled on 10 December 2021 with X and the respondents to explain aspects of X’s parenting to her. This appointment was postponed by Mr Budd, who advised Dr D that Mr Vinson and X were attending a wedding and X would then be up the coast until the end of the year. At the time of the commencement of the final hearing a further appointment time had not been arranged.
71. Dr D opined that it has been “extremely difficult” to proceed with family therapy. She reported that as a result of the respondents’ resistance to proceeding with family therapy and the COVID lockdowns it had not been possible at the time of her written report for there to be a session with the respondents and X to explain her parentage, nor had she been able to facilitate any introduction. This had still not occurred as at the time of the final hearing.
72. Dr D recommends that if the Court does not consider the applicants to be a risk to X, it is damaging to her sense of identity to be denied details of her biological parentage. She opines that it is critical that this issue be dealt with now noting that X is sufficiently of age and maturity to comprehend some explanation of her biological roots: “the longer this is left the more damaging it is likely to be to her sense of identity.”^[7] Dr D feels that X may also be left with a sense of resentment once she discovers that she has been denied the opportunity to meet her siblings.
73. Dr D affirmed her written opinions during the course of her oral evidence and further opined that:-
    • any orders for X to spend time with the biological parents and her introduction to them would need to be supported by therapeutic intervention that not only involves the child but also the caregivers; and
    • X’s time with the applicants should occur on a gradual basis, initially limited to a number of hours in a public place and increasing on a gradual basis to allow a building of trust.
74. Dr D was not swayed from her recommendations in cross-examination. I place significant weight on her expert evidence.

THE FAMILY REPORT

75. A Family Report and Child Dispute Conference Memorandum were prepared by Ms AF (“the Court Child Expert”). There was no challenge to her expertise and I am satisfied the Court Child Expert is suitably qualified to provide her opinion to the Court. None of the parties asserted that the Court Child Expert reported something said to her incorrectly.
76. The Court Child Expert interviewed each of the applicants by video conference on 8 June 2021. She conducted in person interviews and observations with each of the respondents and X at the Parramatta Registry on 8 June 2021. An observation of X and the applicants was not conducted in light of the current Apprehended Domestic Violence Order and it was not considered that such assessment was the appropriate circumstance in which to introduce X to her biological parents. The Court Child Expert did not identify any limitations of the assessment process. Neither the parties nor the Independent Children’s Lawyer submitted that this was a limitation to the veracity of her report and I accept that it was not. The Court Child Expert had access to and read a wide range of material including material produced under subpoena.
77. At the time of the interviews the applicants were pressing for orders that X live with them.
78. The Court Child Expert’s written recommendations were that:
    • The respondents share parental responsibility for X;
    • X live with the respondents as agreed between them; and
    • X spend no time with the applicants.
79. The Court Child Expert grounded her written recommendations on her opinion that:-
    • Removing X from her social parents since birth to live with her biological parents she does not know is likely to be distressing and detrimental to X;
    • As the applicant’s proposals did not involve specific plans for an ongoing role for the respondents in X’s life and their apparent inability to be able to acknowledge the respondents’ role as X’s primary carers to date, it appears unlikely that the applicants would be able to accept any court decision that the respondents remain as X’s primary carers and acknowledge X’s experiences to date;
    • It appears that X spending time with the applicants would increase the anxiety of the respondents and may increase the likelihood their parenting is reactive rather than focused on X’s needs;
    • It is for the court to determine whether X is at an unacceptable risk of harm in the applicants’ care.
80. Whilst making the above recommendations the Court Child Expert opined that:

For many children who are separated from their biological parents, being reunited with their biological families can assist them in development of identity. Where safe to do so, it would be considered beneficial for X’s development and wellbeing to have a relationship with her biological parents and siblings.^[8]

81. The Court Child Expert was able to clarify her evidence at the hearing having regard to the evidence of the parties. She opined that:-
    • She agrees with Dr D that the benefits of X spending time with her biological parents include her obtaining an understanding of her background, thereby assisting in her identity formation which has long term benefits and having a relationship with her siblings. She further agreed that her developmental resolution needs to be achieved quickly.
    • If the respondents are found by the court to have shut out the biological parents they have not engaged in conduct that is child focused.
    • She would recommend that X spend time with the biological parents if the court was of the view that:
      • the biological parents would accept the respondents as the primary carers of X;
      • X was not at risk from family violence;
      • therapeutic intervention took away any anxiety; and
      • such time should recommence gradually and be within a contained environment; either a supervised or therapeutic setting. It should be on a day only basis for the immediate future as the difficulty with overnight time is increased intimacy and anxiety which would require the respondents to encourage, support and reassure her.
82. The Court Child Expert affirmed her opinion that if the Court was of the view the applicants would place X at risk of being exposed to ongoing family violence then there should be no time.
83. I accept and place significant weight on the expert opinion of the Court Child Expert, noting that such opinions are dependent upon findings of fact of the Court.

THE LAW

84. Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the Court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration. This is confirmed in section 65DAA.
85. A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The object of the Act as set out in s 60B is to ensure that the best interests of children are met by:-

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

86. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

87. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

THE PRIMARY CONSIDERATIONS

88. The primary considerations as set out in s 60CC(2) are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

89. In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.

Meaningful relationship

90. The Court is required to determine how, if it is in X’s best interests, orders can be framed to ensure she has a meaningful relationship with the applicants: McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92. A meaningful relationship is not measured simply by the amount of time a child is spending with a parent but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520.
91. There is no dispute that X currently has no relationship with her biological parents, having not seen them face to face since July 2015.
92. Dr D opines that there are some “concerning dimensions” in respect of all parties in this matter. She is of the view that the respondents are extremely threatened by the applicants and have spent considerable energy justifying why X is at risk were she to be exposed to the applicants and thwarting any contact X might have with her biological family rather than promoting it. For this reason she feels that the respondents have resisted the progress of the family therapy. As a result the applicants feel marginalised by the respondents. She reports that:
    21. While [Mr Vinson] and [Ms J] love [X], they have limited insight into the importance for [X] to have an age appropriate introduction to her parentage. [X] is now seven years old and she is sufficiently mature to comprehend some explanation of her biological roots. It is not beyond the realms of possibility that [X] will seek information about her parentage and it is timely for that to be provided to [X].
    22. While the details of whether [Mr Kemp] and [Ms Kemp] provide a risk to [X] is not known, if the Court establishes this is not the case, it is damaging to [X]’s sense of identity to be denied details of her biological parentage. The longer this is left the more damaging it is likely to be to her sense of identity. [X] has, in addition, siblings. She may be left with resentment once she discovers that she has been denied the opportunity to meet [her] siblings.^[9]
93. The Court Child Expert opines that generally, the removal of a child from their biological family is a significant event which can have lifelong consequences with respect to a person’s mental health and may be experienced by a person as a significant trauma even when the removal occurred at a very young age as it did with X. She opines that both the respondents appeared dismissive of these potential consequences including providing dismissive answers to X when she had asked questions of them as to her parentage. The Court Child Expert agrees with Dr D that an integral part of X’s identity development and her ability to form healthy and mature relationships will be an understanding of her parenting history and her concept of her biological family. It is therefore important that the respondents consider a positive and appropriate way of discussing X’s biological family with her.
94. Mr Vinson told the Court Child Expert that due to safety concerns X should have contact with the applicants and her siblings when she is old enough, possibly as a teenager. He conceded that he has concerns that X may have resentment towards both her biological parents and the respondents if she does not spend any time with her biological parents or her siblings. Mr Vinson has not spoken to X at all about her parentage but is aware that Mr Budd has. He has avoided speaking to Mr Budd about it thereby potentially turning a “blind eye” to the potential impact on X.
95. Mr Budd told the Court Child Expert that the counselling they are currently undertaking with Dr D will help determine if it is in X’s best interests to resume a relationship with the applicants. Despite Dr D’s recommendations to the Court he still does not propose that X spends any time, in any form, with the applicants. Whilst Mr Budd conceded that “eventually” X has a right to have a relationship with her biological family when she chooses, he did not see any negative impacts if X was not to have such a relationship.

Risk Issues in the Applicants’ Care

96. The respondents assert that X spending time with her biological parents will place her at an unacceptable risk of being exposed to continued family violence and drug use by the applicants. They further allege that time with the applicants would place her at risk of kidnapping. They submit that such risks could not be ameliorated by supervision. In the event the Court finds it is in X’s best interests to spend time with the applicants both respondents submit that such time should be supervised recognition time only for a few hours every 3 months.

Family Violence

97. The respondents allege that there is ongoing family violence between the applicants and that there is evidence of physical violence perpetrated by each of the applicants towards each other as recently as early 2021.
98. The Court Child Expert reports that the applicants acknowledged one incident of physical violence perpetrated by Mr Kemp upon Ms Kemp prior to X’s birth. Both applicants readily conceded during the course of cross-examination that there have been multiple occasions of family violence in their relationship and that their reporting of one incident only to the Court Child Expert was incorrect.
99. I am satisfied and find on the applicants’ own oral concessions and tendered material that the applicants’ relationship has been marked by instances of family violence including:
    • An incident between the applicants on 29 May 2014 in which Ms Kemp slapped Mr Kemp across the face.
    • Police attended at the home of the applicants on 22 September and 30 November 2014 in response to reports of domestic violence incidents. On 30 November 2014 Police are reported to have observed minor visible scratches on Mr Kemp’s arms and Ms Kemp’s legs. The children advised police they were arguing but not fighting and the applicants both denied the scratches were from assaults.
    • In January 2015 Ms Kemp reported to the Police that Mr Kemp had grabbed her by the throat, pushed her against the wall and dragged her along the ground. She sustained cuts and injuries to her knee. Mr Kemp accepted that, that whilst not on purpose, he probably did grab Ms Kemp by the throat, shove her and push her against the wall. He asserts that his dragging of Ms Kemp was not on purpose; Ms Kemp was hanging onto him as he was walking to leave the property. He accepted that Ms Kemp suffered cuts and injuries to her knees.
    • During a period of separation in 2021 Mr Kemp sent terrible messages to his cousin via Facebook messenger concerning Ms Kemp including:

This is my battle, Let me deal with her!!! I’ll destroy this bitch on my own till she necks herself!!! This was the [Mr Kemp] I was trying to avoid. The KUNT [Mr Kemp]!!! I’m a fucken KING TROLL!!! She just woken that don’t give a fuck [Mr Kemp]!!!

Mr Kemp affirmed that he wanted to destroy Ms Kemp, that he wanted to wear her down emotionally in circumstances where he knew she was suffering mental illness.

• Mr Kemp threatened and thereafter shared with his cousin an intimate picture of Ms Kemp to embarrass her.
• The mother received a black eye in February 2021 as a result of an incident between the parties. Mr Kemp asserts that whilst he did hurt Ms Kemp, this was not intentional; he was trying to get himself out of a situation where he was shoving Ms Kemp out of the way.

Criminal history

100. The respondents allege that the criminal history of the applicants present a risk to X. Mr Kemp’s criminal history includes but is not limited to the following convictions:-
     • in 2003 kidnapping, for which he was sentenced to a term of imprisonment;
     • in 2005 breach of parole;
     • in 2006 sell/give/supply/administer cannabis; and
     • breach of Community Work in 2007.
101. Ms Kemp’s criminal history includes convictions for shoplifting (under $500), breaching a community work order and several driving convictions including driving a vehicle carelessly whilst being over the legal alcohol limit.

Drugs

102. Mr Kemp has been open as to his past drug use. He admits to using methamphetamine during 2013 to 2015. Ms Kemp admits also to past regular marijuana use. She was using cannabis when X was placed into the respondents’ care. Both applicants assert they have not consumed illicit drugs since 2015.
103. It was suggested to Mr Kemp in oral evidence that his Facebook post to his friends in August 2020 stating “Them clients better be ready when I start with you. I’m bringing the smoke”^[10] is a reference to Mr Kemp’s continued use of drugs. Mr Kemp denied that he was referring to drugs. He asserts that he was not referring to anything specific, it could be anything and it is up to the receiver of the message: “Could be any smoke, but it was up to them to understand the meaning of the context of my message…So that’s how us people joke. We always do funny joke like that.”^[11] I cannot, on balance, safely make a positive finding that this post was a reference to drug use.
104. During a period of the applicants’ separation in 2020 Mr Kemp threatened Ms Kemp via message that he would be “sending all these drug videos to Mr Vinson lawyer”, “Mr Vinson” being Mr Vinson. Ms Kemp’s evidence was that she was unaware as to any videos of her taking drugs, there could be from her prior past use but she was clear that she has not used drugs since 2015. Mr Kemp’s firm evidence was that there was in fact no drug videos at all he was “just playing with my wife’s head. Just messing with her head…. I was trying to break her down.”^[12]
105. The Court Child Expert opined that there was no information available during the course of the assessment for the Family Report that indicated that any party is currently using drugs in a problematic manner.
106. I am satisfied and find that neither of the applicants are currently using illicit drugs.

Kidnapping Concerns

107. Both respondents expressed to the Court Child Expert that the applicants have made threats to kidnap X.
108. After there was a disagreement between Ms Kemp and Mr Vinson about the respondents not facilitating time, Ms Kemp told Mr Vinson that Mr Kemp had told her he was just going to go and get X. I accept Ms Kemp’s evidence that:

…like, we’ve had [X]’s address. We’ve had [Mr Budd]’s address. We’ve had the school’s address. At any given time, we could have gone to their addresses, but we didn’t. I started the process of this legal to do it the right way.^[13]

109. I accept that this comment was made and repeated by the applicants out of frustration. I accept and find that they did not attempt or intend to unilaterally remove X from the respondents’ care. I accept however that the applicants did not appreciate the possible effect this statement may have had on the respondents.
110. Subsequent to the posting by the applicants of a photograph of X in her school uniform on their Facebook page in February 2021 Mr Budd attended upon the police and an Apprehended Domestic Violence Order was made prohibiting the applicants from approaching X as detailed previously in these reasons. The Police statement in support of the application does not report that there are interim Orders made by this Court in place for X to spend supervised time with the applicants. I cannot on the evidence find whether the Police were advised of such interim Orders.
111. Ms Kemp’s evidence was that she was experiencing a difficult time by not seeing X and that the image was posted and shared as a way of people trying to show their support for her. Mr Kemp’s evidence was that he saw the photograph of X in her school uniform and she looked so beautiful he wanted to share it.

…Like, we were celebrating, like, you know, her being at school. And we didn’t get to go and walk in her first day of school. So, yes, it was – it was one of those moments where I was a proud dad ….. “Wow, my daughter is so 20 beautiful I’m going to make this photo my profile photo”…^[14]

112. Mr Vinson does not know how the applicants came into possession of the photograph. He posted it himself on social media but asserted only direct family members had access to it. He conceded that there was nothing stopping any of these family members from forwarding that photograph onto somebody else or reproducing that photograph. Mr Budd himself posted it onto a social media page.
113. I accept that the applicants did not mean any harm nor were they posing a threat to X in posting this photograph and did not appreciate that the posting of such posts may cause the respondents concern or difficulty if X were to find such a page.

Mental Health

114. The respondents are reported as expressing “vague concerns” for Ms Kemp’s mental health. No submissions were made by the respondents as to this issue.
115. Whilst the applicants each reported to the Court Child Expert that Ms Kemp had experienced depression after placing X into the respondent’s care, she appears to have received treatment for this. She has obtained the assistance of medical practitioners including her general practitioner and a psychologist. She is currently receiving the assistance of a social worker at Suburb F Hospital and has been referred to a counsellor at the AG Youth Centre. Ms Kemp is to be commended for obtaining external assistance when she feels the need to do so. I am not satisfied on the evidence before me that there is any risk of harm to X in the care of the applicants as a result of any mental health issues.

Risk Issues in the Respondents’ care

116. The applicants reported their belief to the Court Child Expert that Mr Vinson was aggressive towards Mr Budd during their relationship. This allegation is denied by the respondents. I am not satisfied there has been any family violence between the respondents.
117. In approximately 2010 Mr Vinson was convicted of assault occasioning actual bodily harm and received a fine and a good behaviour bond for 18 months. He conceded to the Court Child Expert that he has used marijuana previously occasionally and that he last had “two puffs” at the beginning of 2021. In contrast to this Mr Budd advised the Court Child Expert that prior to X’s birth, Mr Vinson used drugs such as ecstasy on occasion but not habitually. Ms Kemp reported to the Court Child Expert that Mr Vinson had previously told her about his extensive use of drugs including ice and MDMA.
118. Mr Budd said that he rarely drinks alcohol and does not currently take any drugs. He conceded to experimenting with drugs previously and that he last used drugs in 2019. Ms Kemp alleged to the Court Child Expert that she is aware that Mr Budd previously used cocaine occasionally at business functions.
119. In circumstances where the applicants and the Independent Children’s Lawyer agree with the orders sought by the respondents that X will continue to live with the respondents, I am satisfied that X is not at risk of physical harm in the respondent’s care. Issues as to potential psychological harm in the respondents’ care are dealt with later in these reasons.

THE ADDITIONAL CONSIDERATIONS

120. Turning now to the additional considerations as set out in s 60CC(3) as are relevant in this matter to determine what is in X’s best interests.

Any views expressed by X

121. There is no evidence before the Court as to X’s views; she is too young in any event for her view to carry weight.

The nature of X’s relationship with her parents and other significant persons

122. Dr D opines that X’s primary attachments are with the respondents. She refers to Mr Vinson as “Papa” and Mr Budd as “Daddy”. It appears that she spends significant time with Mr Budd’s mother whom she refers to as “Nanna.”
123. I have no doubt that X is deeply loved and cared for by the respondents. They are to be commended for providing X a safe and loving environment; free from conflict despite their separation. Dr D reports them as being “deeply committed” to X’s wellbeing. I am satisfied that X’s primary attachment figures are the respondents.

The extent to which the parents have taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with the child

124. The applicants have been unable to participate in making decisions as to X’s care or spend time with her since July 2015.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

125. There is no evidence that the applicants have financially supported X in any way subsequent to her being placed into the care of the respondents.

The capacity of each parent to provide for X’s needs, including emotional and intellectual needs

126. The Court Child Expert opines that the applicants appear to be self-focused and had difficulty reflecting on X’s experiences as in her meetings with them they were focused on their own feelings such as grief and guilt, rather than attempting to consider what X’s experiences may be. She opined that the applicants focusing on their own needs and experiences may result in a difficulty on their part in reflecting on X’s individual experience as separate from their own, and the attachment X has with the respondents.
127. I witnessed a significant change in the attitude and understanding of the applicants during the course of this four day hearing. One criticism levelled at the applicants was their insistence on calling X “X” (her second middle name) rather than “X” or “X” as she has been known since birth. During her cross-examination Ms Kemp’s evidence was that she would call X what she wanted to be called, but that it would be her decision and she would respect that. By the end of the hearing Ms Kemp was referring to X as X or X and was at times apologetic for referring to her as X.
128. The respondents were critical of the applicants for calling the police to conduct welfare checks on X whilst she was in their care. Ms Kemp’s oral evidence was that she did this because the respondents would not tell her where X was living. Ms Kemp appropriately conceded when it was suggested to her that it could be scary for a child to have a stranger come into her home in uniform.

The likely effect of any changes in X’s circumstances including the effect of any separation from either of the parents or any other person with whom they have been living

129. There is no longer a dispute that the respondents will continue to care for X as they have done so since her birth as agreed between them.
130. If X is able to spend time with the applicants she will also be able to be introduced to and establish a relationship with her biological family including her siblings.

Any other relevant fact or circumstance

131. The respondents have cared for X and been solely responsible for making decisions concerning her care and welfare since birth.
132. The respondents appear to have been solely financially responsible for supporting X subsequent to her birth.
133. Mr Vinson conceded during the course of cross-examination that despite the agreement surrounding X’s placement into their care, Ms Kemp has never been introduced to X as “Mum”, nor has Mr Kemp ever been introduced to X as “Uncle”.
134. Despite his language in telling the applicants to “fuck off”, Mr Vinson did not concede that he has been abusive to the applicants. He did concede that there have been occasions when he has failed to regard the impact on X of some of his actions.
135. Mr Budd is reported as telling the Court Child Expert that he had spoken with X at Dr D’s prompting, about her being adopted. He is reported as saying that X had asked where the lady was “whose tummy I came out of” and “he had told her that he was not sure.”^[15] He said that “she had not asked further questions because she is aware of who her family are and she does not need any more family.”^[16]
136. Whilst the respondents were critical of the applicants’ actions in posting a photo of X on social media, a “GoFundMe” page set up by Mr Vinson came into evidence during the course of cross-examination. Such posting does Mr Vinson little credit. It contained unnecessary hurtful and personal details of Ms Kemp. Mr Vinson in those circumstances was unable to assist Ms Kemp in how she should explain such inappropriate material to X were she to ever find the page. He conceded that if X came across that GoFundMe page it could have an impact on her and that he did not consider that when posting it. Mr Vinson did not discuss it with Mr Budd prior to the posting. Despite Mr Budd telling him to take it down Mr Vinson did not do so and further, Mr Budd later re-posted it himself.
137. The case run by Mr Budd in these proceedings was highly critical of the applicants. He conceded that some of the language in his affidavit was inappropriate. His affidavit material, Case Outline and oral submissions made on his behalf were unnecessarily inflammatory and would have done little to assist in the parties’ relationship moving forward. I accept and find that his written evidence was attempting to assassinate Ms Kemp’s character.
138. It is clear that Mr Budd does not agree with X spending time with the applicants at a contact centre. He applied to set aside the Orders made for this to occur on 4 February 2020 and again on 15 October 2021. Dr D reported that both respondents “expressed on-going resistance for that to proceed.”^[17] E Contact Centre were finally able to make an appointment for a ZOOM intake session with Mr Budd on 14 August 2021. He then advised via email that he wished to defer the intake process for approximately 2 weeks as he was in hotel quarantine. He conceded that he went into quarantine on the 10 August and was out by the 24 August. Mr Budd did not contact E Contact Centre to arrange a new date and time. E Contact Centre forwarded an email on 10 September 2021 asking Mr Budd to reschedule his phone intake assessment appointment and advising him that staff were available to conduct the intake by phone on 25 September 2021.
139. Mr Budd did not reply to such email until 23 September 2021 in which he advised

On the back of the Family Court expert’s recommendations, my lawyers are about to file an application to vacate (cancel) the previous orders arranging for such contact, which contact would be completely opposite to the advice and recommendation of the Family Court expert consultant in this matter.

For this reason, I ask your forbearance in this matter whilst we have this application dealt with by the Court.

I do not want to be in a position with some form of contact occurs in the interim through your organisational or elsewhere, and the Court subsequently rules that it is not in [X]’s best interests that there is to be any contact.

Clearly any interim contact would thereby undermine and prejudice those future orders of the Court and [X]’s best interests and welfare in the interim.

The Court and the parties have been awaiting the outcome of this Family Report, and now given the unequivocal terms in which the recommendations are made, I have no option other than to seek to set aside any orders facilitating or attempting to facilitate any contact with [X] by the Applicants in the court case, at this time.^[18]

140. As a result of such email the service suspended their involvement in facilitating contact. They are, however, still happy to conduct visits once Mr Budd has undertaken the intake process.
141. I do not accept Mr Budd’s evidence that he was not delaying the intake process. He conceded that he did not want to proceed with the Contact Centre prior to the release of the Family Report.
142. I find the reasons advanced for the re-scheduling of the 10 December 2021 appointment with Dr D by the respondents to be unsatisfactory. This appointment was specifically for the purpose of explaining X’s parentage to her. The respondents felt it was more important for X to attend a wedding reception for a cousin of Mr Vinson’s she has met less than 10 times. The appointment was not re-scheduled.
143. I am satisfied that the respondents have been unable to understand and appreciate the importance of X being aware of her biological parents and have thwarted the attempts by the applicants to remain in some capacity in X’s life. I am satisfied that this has included:
     • not advising the applicants on each occasion that X returned to Australia;
     • not facilitating X spending time with the applicants;
     • not complying with the interim Orders for X to see the applicants at a Contact Centre; and
     • thwarting the progression of family therapy to where X has a discussion about her biological parents.

DISCUSSION

Risk Assessment

144. I must now undertake an assessment of the potential risk of harm to X were she to spend time with the applicants. This assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. If the Court identifies that there is an unacceptable risk, it is then necessary to assess whether that risk is able to be sufficiently ameliorated or managed with safeguards: Blinko & Blinko [2015] FamCAFC 146.
145. Both applicants gave clear and convincing evidence as to the change in the nature of their relationship, at least since 2021. Both applicants were firm in their oral evidence that neither physical violence nor verbal abuse is a current issue between them. Mr Kemp gave evidence that they now have different ways of dealing with their issues:

[THE SECOND APPLICANT] …We – we’ve exercised different ways of dealing with things that we do not agree with. We now take our disagreements outside of the house. We go for a walk. We go down to the local park, sit down there, discuss things and – and just write – just write things that we need to improve on… So we’re just trying to bring new methods on how to take care of whatever we don’t agree with.^[19]

146. The applicants attended a joint counselling session with AG Youth Centre and they receive assistance and support from their bishop at church. Mr Kemp has now become an active member of Ms Kemp’s church and Mr Kemp feels that this is “working”. Mr Kemp proposes to continue attending church and receiving support from church members and family friends. He also proposes to continue implementing new methods to improve their relationship.
147. Mr Kemp “absolutely” accepts that his relationship with Ms Kemp in the past has been dysfunctional. Although Mr Kemp’s evidence was that some of the injuries sustained by Ms Kemp were unintended, he accepted the consequences of the incidents and that he has behaved in an aggressive manner towards Ms Kemp in front of the children. He stated that “any type of violence is not okay.”^[20] He took full responsibility for his terrible messages on social media and submitted that he realised in February 2021 that he had to make dramatic changes.
148. Having regard to the applicants’ own concessions as to past family violence I am satisfied that there is some risk that X will be exposed to family violence whilst spending time with the applicants. As conceded by Mr Budd, it is an unfortunate reality that there cannot be a guarantee from any party that X will not be exposed to family violence in the future. There has been no reported incidences of family violence between the applicants since February 2021. I accept the applicants’ evidence that their adoption of different methodologies has resulted in them dealing with conflict other than by resorting to violence. I am satisfied that there is a possibility in the future that X may be exposed to family violence whilst in the care of the applicant’s, but that this is a possibility only and such risk is not unacceptable. I am satisfied that such risk is further minimised in circumstances where the applicants agree to an order as proposed by the Independent Children’s Lawyer that Ms Kemp will return X to the respondents’ care in the event there is a further violent incident between the applicants. I am satisfied and find that Ms Kemp has in the past acted in X’s best interests and will continue to do so in the future. The making of such an order may give the respondents some further comfort and I am satisfied that it is in X’s best interests to be made.
149. I am not satisfied on the evidence that the applicants are currently consuming illicit drugs. As a result of their conceded past drug misuse I am satisfied that there is a small possibility that they will again partake in illicit drug use. In circumstances where the applicants agree to an order that they be restrained from using illicit drugs prior to spending time with X, I again will make such an order as it may provide the respondents with some comfort even though I find their fears are misplaced.
150. The Court Child Expert opined that whilst it would be beneficial for X to develop a positive relationship with the applicants, it was recommended that there be no time between X and her biological parents. This was predicated it appears on two further foundations:-
     • that it appears that the applicants would be unlikely to accept the respondents as X’s primary carer’s and acknowledge X’s experiences to date; and
     • that X spending time with the applicants would increase the anxiety experienced by them thereby increasing the likelihood that their parenting is reactive rather than focused on X’s long-term best interests.
151. During the course of the hearing Ms Kemp commenced calling X by the name the respondents call her rather than X as previously called by the applicants. Both the applicants conceded to the Court Child Expert that the respondents have cared well for X. The applicants have now accepted that orders are to be made that the respondents have equal shared parental responsibility for X who will continue living with them. Ms Kemp’s clear evidence prior to this change in the applicants’ position was clearly that in the event the court ordered that X remain living with the respondents she would accept that decision and accept the respondents as X’s primary carer. She was clear that if the Court made orders allowing her to see X only six times a year for “recognition time” that whilst it would break her heart it would be something that she would accept. She was clear that she would not seek to go outside the parameters of those orders.
152. I am satisfied that the applicants have gained an understanding of X’s experiences to date. I am satisfied that they have accepted the respondents as X’s primary carers and will continue to do so in the future. I am satisfied that the applicants will comply with orders made by this Court.
153. The respondents do not assert that any orders for time will affect their parenting capacity. Both respondents acknowledged during the course of their cross-examination that it gave them some comfort that Ms Kemp gave evidence that she would accept the respondents as the main carers of X if that is what the Court ordered. Mr Vinson further confirmed to the Court that in the event orders were made for time between X and the applicants that he would comply with the orders as he appreciated that any orders the Court makes would be in the best interests of X and that provides him with comfort. I cannot on the evidence make a finding that X spending time with the applicants would negatively impact the respondents’ parenting capacity.
154. Weighing up the competing considerations, I am not satisfied that X spending recognition only time as proposed by respondents is required for X’s safety. Whilst there are some risks to X due to the applicants’ past drug use and incidences of family violence I am satisfied that such risks are small possibilities only. The applicants have agreed to the orders proposed by the Independent Children’s Lawyer that X’s time with them be supervised for a period of 6 months and thereafter be day time only. I am satisfied that this ameliorates the possible future risks to X and is in X’s best interests.
155. It is trite to say that if prior interim Orders of this Court had been complied with then such period of supervision would have most probably already have been undertaken.

Parental Responsibility

156. I am satisfied in light of the applicants’ concessions that there has been family violence in their relationship the presumption that the applicants will have equal shared parental responsibility is rebutted.
157. The applicants both report to the Court Child Expert their view that they would be able to discuss X’s needs with the respondents in the future but suggested that the respondents would not be able to do this. The Court Child Expert opines that it is unlikely that the parties will be able to co-parent in a meaningful manner. I agree with submissions made on behalf of Mr Vinson that the lack of trust between the parties would make any collaboration required impossible.
158. An order will be made as agreed by all parties that the respondents shall have equal shared parental responsibility for X as I am satisfied it is in her best interests.

The Orders

159. I am satisfied that the orders for time as agreed to by the applicants and the Independent Children’s Lawyer appropriately balance the benefits that X will experience in establishing and maintaining a relationship with her biological family; both her biological parents and her siblings. It is a balanced and appropriate option and it incorporates the recommendations of Dr D and the Court Child Expert in light of the findings I have made and the risk assessment undertaken by me. In light of Dr D’s expert opinion that the process of X being introduced and establishing a relationship with the applicants should occur with therapeutic support and assistance, I am satisfied that it is in X’s best interests that this scaffold of support continue.
160. The respondents reported to Dr D that they faced difficulties in transporting X to Suburb F; the Suburb G contact centre would be less travel for them and therefore less stressful for X. In those circumstances I am satisfied that that it is in X’s best interests that the supervised time occur at the Suburb G contact centre once this centre becomes available. Until that time, X’s time with the applicants will occur at the contact centre at Suburb F as proposed by the Independent Children’s Lawyer and the applicants.
161. So as to limit the possibility for future disagreement and to limit X’s travel times, X’s time with the applicants for 4 hours on a Saturday will occur within the City of Sydney area. Once her time moves to each alternate Saturday from 10:00 am to 5:00 pm the applicants are free to spend time with X in locations of their choosing.
162. Whilst the orders sought by the Independent Children’s Lawyer and the applicants that all parties refrain from denigrating the other or discussing these proceedings within X’s hearing were not the subject of submissions I am satisfied that such proposed orders are in X’s best interests and will make them accordingly.
163. In circumstances where I have found that the respondents have ceased time between X and the applicants and have been reticent to comply with Orders made for the facilitation of such time to occur, I am granting the applicants leave to relist this matter for the next 12 months by emailing Chambers in the event the applicants assert there is non-compliance with the Orders made.

CONCLUSION

164. This hearing was an emotional time for all parties. X is loved by all the parties who all want what they think is best for X. The applicants made the difficult decision at the close of evidence to no longer press for an order that X live with them. It was disappointing that the matter was unable to be resolved on an amicable basis.
165. We are all human with the attendant faults and weaknesses. Whilst this judgment does contain criticisms of the parties, I understand that their past actions relating to X, whilst misconceived and not in her best interests, arose out of their love for her. It appeared that the hearing of this matter was a somewhat cathartic experience for all parties who have, to differing degrees, gained some insight into the impact of their actions. This will hopefully assist in them now moving on and perhaps starting to rebuild some form of relationship with each other in circumstances where they will all be in X’s life moving forward. As noted by Dr D:

Hopefully the adults can have a conversation with each other is not as it is not helpful for the child be travelling between hostile parties… this will unravel pretty quickly if the adults can’t display maturity, sensitivity and trust that has been significantly eroded. They will be the vital ingredients for [X] to move forward with the least disruption.

166. It is further hoped that the respondents accept that it is in X’s best interests that she have the benefit of a relationship with her biological parents and siblings. The Court expects and requires compliance with its Orders having regard to the findings that have been made, including that it is in X’s best interests to have a meaningful relationship with her biological parents. The parties should be under no illusion as to what may be the binary options in the event the Court Orders are not complied with. The respondents have positive obligations to facilitate X continuing the family therapy and spending time on a graduated basis with her biological parents – token compliance is not sufficient.