A recently published decision from the Federal Circuit and Family Court of Australia (Sinisi & Barbas [2024]) provides a powerful example of how the court balances a child’s right to a relationship with both parents against legitimate concerns for their safety and wellbeing.
The case involved a four-year-old girl, X, who lived with her Mother in Tasmania. Her Father, who lived in Sydney, sought increasing unsupervised time and a role in decision-making. The Mother, however, was deeply opposed, arguing that the Father’s illicit drug use and past behaviour made him an unacceptable risk.
The Central Issue: Unacceptable Risk
The Mother’s primary concern was the Father’s use of illicit drugs. The evidence showed a history of positive drug tests, including some the Father had failed to disclose to the Mother or the Court. This pattern of behaviour destroyed any trust between the parents and was the core issue the Court had to address.
The Father argued his drug use was only occasional and recreational. However, the Court found his lack of honesty about his use, and his attempts to minimise its significance, demonstrated a serious failure to prioritise his daughter’s welfare.
The Court’s Solution: A Structured, Conditional Pathway
The Court acknowledged that the Father posed a risk to X if he was under the influence of drugs. However, instead of cutting off the relationship, Judge Turnbull crafted a set of orders designed to mitigate that risk while allowing the relationship to develop. The judgment is a masterclass in managing risk through clear, evidence-based conditions.
Key orders included:
Strict Drug Testing Regime: The Father’s time with X is directly tied to him producing negative hair follicle drug tests. This type of test was preferred as it provides a long-term history of drug use, unlike urine tests which only detect recent use.
A Gradual “Step-Up” Program: The Father’s time is set to increase very gradually over nearly two years, moving from supervised visits to unsupervised day visits. Each step up is contingent upon him completing a set number of visits and providing a further clean drug test.
Consequences for Non-Compliance: Crucially, if the Father returns a positive drug test, his time with X will immediately revert to being supervised until he can produce a negative test again.
Sole Parental Responsibility to the Mother: Given the complete breakdown of trust and communication, the Court awarded the Mother sole parental responsibility for all major long-term decisions (e.g., education, health). However, the Father is to be kept informed about X’s schooling and medical care.
Change of Surname: The child’s surname was formally changed to the Mother’s. The Court found the Father had previously consented to this, the child already used the name, and a change back would cause her confusion.
Key Takeaways for Separating Parents
This case highlights several important principles in family law:
The Child’s Best Interests are Paramount: The Court’s primary focus is not on punishing a parent for past behaviour, but on creating a safe framework for the child to have meaningful relationships. The entire “step-up” plan was designed for X’s benefit, not the Father’s.
Trust Must Be Earned Through Actions: The Father’s lack of honesty severely limited the Court’s ability to grant him the time he sought. The judgment makes it clear that his future time with X depends entirely on his demonstrable actions—specifically, remaining drug-free and complying with every order.
Risk Can Be Managed: The Court does not necessarily have to choose between “no risk” and “no relationship.” With appropriate safeguards like drug testing and a gradual increase in time, a relationship can be fostered while protecting the child.
Be Prepared for the Court to Craft a Unique Solution: The final orders did not mirror what either parent had proposed. The Court has broad discretion to design a parenting plan that it deems “proper” in the circumstances, based on all the evidence.
Conclusion
The Sinisi & Barbas case demonstrates that even in highly conflicted situations where significant risk factors are present, the Court will strive to facilitate a child’s relationship with both parents, provided robust protections are in place. For a parent seeking to build or rebuild a relationship in the face of legitimate concerns from the other parent, this case underscores the critical importance of transparency, compliance with court orders, and a consistent demonstration of child-focused behaviour.
If you are facing a complex parenting dispute involving issues of risk, trust, or communication, our family lawyer Kathryn Harriss can provide you with strategic advice and robust representation.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. You should seek independent legal advice for your specific situation.
