Judge Cope’s Balancing Act: A Cautious Path Through Allegations, Addiction, and Parental Conflict in Interim Parenting Review
In Neman & Neman (No 2) [2025] FedCFamC2F 1056, Judge Cope of the Federal Circuit and Family Court (Division 2) undertook a de novo review of a Senior Judicial Registrar’s interim parenting decision. The case centred on a four-year-old child, her parents’ competing proposals for contact, and allegations of family violence and past drug use. Both parents levelled accusations of risk and emotional harm against the other. The Court navigated these claims under the new Family Law Amendment Act 2023 reforms, emphasizing safety, gradual progression, and the child’s best interests.
⚖️ Facts and Issues:
Key Facts:
- The parents separated in March 2023 after an eight-year relationship.
- There is one child, X, born in 2021, who lives with the mother.
- The father’s past cocaine and benzodiazepine use was documented, with hair follicle tests positive in 2023–2024, but clear for 15 months by the time of hearing.
- The mother alleged serious family violence, including strangulation, threats with a firearm, and ongoing fear of harm.
- The father denied all allegations, asserting that the mother’s behaviour amounted to alienation.
- The father sought significantly expanded time and for the child to attend school near his home, 100 km away.
- The mother sought limited unsupervised daytime contact, vaccination permissions, and therapy for the child.
- An Independent Children’s Lawyer (ICL) supported a cautious approach with limited overnights on special occasions.
Issues:
- Should the father’s time increase to include overnights and school relocation?
- How should allegations of family violence and drug use affect interim arrangements?
- What safeguards were necessary to protect the child’s welfare while maintaining her relationship with both parents?
- Should the mother be permitted to manage vaccinations and therapy independently?
📜 Relevant Law:
- Family Law Act 1975 (Cth) — ss 60B, 60CC, 60CG, 65D
- Family Law Amendment Act 2023 — updated best interests factors and legislative pathway
- M v M (1988) 166 CLR 69 – Unacceptable risk of harm
- Isles & Nelissen (2022) FLC 94-092 – Test of “possibility not probability” for risk
- Deiter & Deiter [2011] FamCAFC 82 – Court must assess both likelihood and severity of risk
- Redmond & Redmond [2014] FamCAFC 155 – Court need not delay decision until all evidence is available
- SS v AH [2010] FamCAFC 13 – Judge must weigh competing risks even with incomplete evidence
🔍 Application of Law to the Facts:
1. Best Interests and Safety (ss 60B, 60CC, 60CG):
The Court reaffirmed that safety remained the paramount consideration. Although the mother’s allegations of family violence were untested, they could not be ignored at the interim stage. Following M v M and Isles & Nelissen, Judge Cope held that risk assessment requires a cautious balancing of potential harm, even where evidence is conflicting.
2. Drug Use and Rehabilitation:
The father’s long history of stimulant abuse raised legitimate concern, but the Court accepted his recent progress — 15 months drug-free and attending therapy. Nonetheless, Judge Cope observed that substance recovery “remains a journey, not a guarantee,” requiring ongoing monitoring.
3. Allegations of Alienation:
The Court acknowledged the father’s claim of alienation but found it unproven. Judge Cope reasoned that the child’s mixed behaviour — sometimes eager, sometimes resistant — could equally stem from trauma or parental conflict. No adverse finding against the mother was made pending trial.
4. Gradual Progression of Contact:
Applying Redmond and Deiter, the Court found a cautious, stepwise approach best for the child’s adjustment. Overnight stays were limited to Christmas and Easter holidays, introducing the concept in a safe, celebratory context. Full overnight or expanded time was deferred to final hearing.
5. School and Relocation:
The father’s request to enroll the child in a school 100 km away was refused. Judge Cope ruled this was a “back door relocation” and an impractical disruption to the child’s stability. Interim hearings were not the proper forum for major relocations.
6. Vaccinations and Therapy:
The mother was permitted to organise the child’s catch-up immunisations with her GP, with the father informed but not granted veto rights. The request for immediate art therapy for the child was declined — the child was too young and the expert report had not recommended it.
🧠 Judgment and Reasoning:
- Orders made:
- Unsupervised time twice weekly (Tuesdays and Sundays, 10 am–4 pm).
- Overnight time on Christmas and Easter only.
- No change to school enrolment (child to attend locally).
- Changeover to occur at a midway point between homes.
- Mother permitted to arrange vaccinations.
- Permission for mother’s therapist to view the expert report for support purposes.
Judge Cope carefully balanced the competing allegations, finding that both parents presented risks but also genuine love and capacity for change. The Court preferred a measured, risk-managed pathway that prioritised the child’s emotional safety while allowing the father’s relationship to rebuild gradually.
“Safety must be at the forefront of the court’s mind… The overriding consideration will always be the safety and wellbeing of the child X.” — ¶44
“To make orders that change the child’s long-standing status quo on an interim basis is beyond the scope of what the court can do.” — ¶85
“Introducing overnight on special days only is the perfect cautious and gradual approach.” — ¶78
⚖️ Cited Precedents and Principles:
Case Principle Applied
M v M (1988) 166 CLR 69 Unacceptable risk of harm test
Deiter & Deiter [2011] FamCAFC 82 Weighing likelihood and severity of risk
Isles & Nelissen (2022) FLC 94-092 Risk can be possible, not just probable
Redmond & Redmond [2014] FamCAFC 155 Interim orders can proceed without full evidence
SS v AH [2010] FamCAFC 13 Must assess competing risks even with limited evidence
🏛️ Analysis of Judicial Reasoning:
Judge Cope’s approach exemplified the new Family Law Amendment Act 2023 framework — safety-first, evidence-sensitive, and child-focused.
Rather than punishing either parent, the Court sought stability through minimal disruption and careful risk management.
The decision underscores judicial reluctance to expand contact or alter schooling when allegations of family violence, substance use, or relocation disputes remain unresolved.
Importantly, Judge Cope acknowledged both parents’ ongoing therapeutic efforts, setting clear behavioural expectations before any future increase in time.
🧭 Take-Home Lesson:
In parenting disputes with allegations of violence or addiction, caution is not punishment — it’s protection.
Courts will not accelerate time or approve relocations without strong evidence that risks are managed. Progress is earned through stability, compliance, and therapeutic engagement, not litigation pressure.
