Babayev & Babayev - [2024] FedCFamC1F 589

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Babayev & Babayev [2024] FedCFamC1F 589

File number(s): MLC 6573 of 2019

Judgment of: WILLIAMS J

Date of judgment: 4 September 2024

Catchwords: FAMILY LAW – PARENTING – Where the child suffered serious injuries when he was an infant that were medically assessed as non-accidental injuries – Both parents deny causing the injuries to the child – Where the father was convicted at first instance of causing injury to the child and later acquitted on appeal – Where the mother fears the child will sustain serious harm in the fathers care – Where the mother asserts the father poses an unacceptable risk of psychological harm to the child – Mother suffers a medical condition typically due to stress – Where the decompensation of the mothers mental health has manifested in physical symptoms which has required hospitalisation and ongoing management by a specialist – Consideration of the weight to be given to the mothers beliefs and the impact on her if the child were to spend supervised or unsupervised time with the father –Re Andrew principles – Finding that the mothers beliefs are genuinely held – Finding that the mothers parental capacity will be discernibly impaired due to her genuinely held belief that the father poses a risk to the child – Sole parental responsibility vested in the mother – Orders made for the child to spend identity time with the father

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 61DAA

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.05

Cases cited:
A & A (1998) FLC 92-800; [1998] FamCA 25

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bayer & Imhoff [2010] FamCA 532

Blinko & Blinko [2015] FamCAFC 146

Dunst & Dunst [2016] FamCAFC 15

Fitzwater & Fitzwater [2019] FamCAFC 251

Grant & Grant (1994) FLC 92-506

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Mazorski v Albright (2007) Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Re Andrew (1996) FLC 92-692

Sedgley & Sedgley (1995) FLC 92-623

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 264

Date of hearing: 21-24 August 2023, 25 September 2023, 8-12 April 2024 and 1-2 August 2024

Place: Melbourne

Counsel for the Applicant: Ms Mallett KC

Solicitor for the Applicant: Harwood Andrews Lawyers

Counsel for the Respondent: Mr Whitchurch

Solicitor for the Respondent: Duane Portway Family Law

Counsel for the Independent Children's Lawyer: Mr Allen

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 6573 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BABAYEV

Applicant

AND:
MR BABAYEV

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

4 SEPTEMBER 2024

THE COURT ORDERS THAT:
Parental responsibility
1.The mother have sole parental responsibility for the child, X born 2018 (“X”), provided that:
(a)With regard to X’s education:
(i)The mother inform the father about X’s intended schooling prior to enrolling the child (or carrying forward any current enrolment) at any school at which it is intended the child will attend; and
(ii)The father is at liberty to provide any comment to the mother for a period of seven (7) days from the date of notification, following which the mother will be at liberty to complete the enrolment of X at the said school; and

(b)With regard to X’s health and wellbeing:
(i)The mother provide to the father information about any significant development with regard to X’s health and wellbeing; and

Lives with
2.X live with the mother.

Spend time
3.X spend time with the father, supervised, on four (4) occasions each calendar year, for a period up to three (3) hours duration on a Sunday in each of April, July, October and December with the time spent to coincide generally with school holiday periods and with the date to be agreed between the parents in writing, and in the absence of agreement the date to be nominated by the mother.
4.For the purposes of all time spent by X with the father, the following provisions shall apply:
(a)time spent shall be supervised by a professional supervisor at the father’s sole expense;
(b)time spent shall take place at either an approved supervised contact centre or an agreed community setting, or at such other venue as may be agreed by the parents in writing in advance; and
(c)changeover shall take place at the supervised contact centre or at such venue as is agreed in writing between the mother and the supervisor.

5.In the event that X suffers any injury or illness during the father’s time spent, the father and the supervisor will:
(a)in the event that X is distressed or injured to the point of needing to cease the activity and be comforted, immediately notify the mother, provide clear and full information as to the circumstances and in the event that the mother requests that time cease, return X to the care of the mother immediately; and/or
(b)in the event of any more minor injury provide the mother with details of the circumstances at the time of changeover.

Other
6.The father shall provide to the mother in writing particulars of his telephone number and a designated email address for the purposes of receiving information about X from the mother and for the purposes of communication pursuant to these orders.
7.The mother shall provide to the father in writing particulars of her telephone number and a designated email address for the purposes of providing information about X to the father and for the purposes of communication pursuant to these orders.
8.The parents shall communicate concerning X via email, unless in an emergency, and in the event of an emergency during supervised time, the supervisor shall contact the mother by telephone.
9.The parents do all acts and things and sign all such documents as may be necessary to enable the mother to obtain an Australian passport to be issued to X.
10.The mother be permitted to leave the Commonwealth of Australia with X for holidays, provided that if the mother intends to take X on an overseas holiday, she will provide the father with no less than six (6) weeks written notice of her intention to travel and the dates of the proposed travel.
11.Any passport obtained on behalf of X shall be held by the mother.
12.All previous parenting orders are discharged.
13.The Application of the mother and the Response of the father are otherwise dismissed.
14.The Independent Children’s Lawyer is hereby discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Babayev & Babayev has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION

This proceeding concerns the parenting arrangements for a five-year-old child, X (“the child”). At the commencement of the hearing, the child lived with his mother, and continues to do so. Until February 2024, the child spent supervised time with his father on one occasion a week.
On 13 February 2024, at the instigation of the mother and for reasons which are referred to below, the child’s time with his father was suspended.
It is uncontroversial that the child will continue to live with his mother, and the primary issue for determination is whether he should spend time with his father and if so, the time, frequency, and whether time should be supervised.
The mother holds an unwavering belief the father inflicted injuries upon the child when he was a young baby and is extremely fearful the child may sustain further physical injury if he has unsupervised time with the father. The mother also contends the father poses an unacceptable risk of psychological harm to the child. Her belief and fear have a discernible impact on her parenting capacity, to the extent that there should only be identity time between the father and the child, on four occasions per annum, with such time to be professionally supervised.
At all times, the father has denied ever causing harm to the child or having any knowledge as to how his injuries were sustained. The father asserts he poses no risk to the child, and unsupervised time will allow for the child to have a meaningful relationship with him. He proposes time with the child be initially supervised by family members, before progressing to unsupervised and overnight time. The father believes the mother injured the child, although inadvertently.
The Independent Children’s Lawyer initially proposed regular supervised time between the father and the child, with a gradual progression to unsupervised time including eventually overnight time. At the conclusion of the trial, the Independent Children’s Lawyer agreed with the mother’s proposal and sought orders for identity time.
None of the parties sought the court to make a finding about who was responsible for the child’s injuries, or that the father posed an unacceptable risk of physical harm to the child, in the context of the child having sustained serious injury.
For the reasons that follow, I am satisfied the father poses an unacceptable risk of psychological harm to the child, and the mother’s parenting capacity would be discernibly impacted if the child were to spend time with the father, other than in accordance with her proposals. I find it is in the child’s best interest to spend professionally supervised identity time with the father, in accordance with the proposal of the mother and the Independent Children’s Lawyer.
ISSUES IN DISPUTE
The following issues required determination:
(1)Should there be an order for sole parental responsibility vested in the mother, as sought by her, or should there be an order for equal shared parental responsibility, as sought by the father;
(2)Is the child at an unacceptable risk of psychological harm if he spends time with the father, because of the discernible impact on the mother’s parenting capacity;
(3)If so, is it possible to ameliorate the risk of harm; and
(4)What time, if any, should the child spend with the father.
BACKGROUND
The parties commenced a relationship in 2011, commenced cohabitation in 2013, and married in 2017. Their child, X, was born in 2018. They separated on a final basis in March 2019, and divorced in 2021.
In 2018 when the child was an infant, his parents took him to the B Hospital emergency department because he appeared critically unwell. He was x-rayed and shortly thereafter the child was transferred by ambulance with the mother, and admitted to C Hospital, where he stayed overnight. It was found that the child had sustained a serious injury. The mother was informed by staff at C Hospital that police and child protection had been notified.
The next day, the mother and father were interviewed separately by the police and DHHS about the child’s injuries. According to the mother, she told the police and DHHS that she had no idea how the child had been injured and was told the child had to stay in hospital over the weekend for further tests.
On the following day the mother was contacted by a paediatrician, Dr D, who told her that in addition to the first injury, X had further serious injuries. She was subsequently told the further injuries were likely to have occurred earlier in the month.
A few days later, the Department of Health and Human Services (“DHHS”) assessed the father as responsible for harming the child and filed an urgent Protection Application at the City F Children’s Court.
On the following day, the City F Children’s Court made an Interim Accommodation Order for the child to be placed in the mother’s care in the maternal family home, and for the father to have supervised visits for one hour on three occasions each week, to take place at the home of the maternal aunt, Ms E. The Interim Accommodation order was varied by the Children’s Court in early 2019, and again two weeks later.
In early 2019, DHHS prepared a confidential Court Report which detailed X’s injuries. The injuries were described as “purple non-blanching marks […], swelling and tenderness […] and […] fractures”.
The report also stated that in 2018, the father admitted to DHHS that one of the injuries may have been caused by him yanking the child with force a few days earlier, after becoming frustrated the child would not settle.
The mother deposes to the father behaving in an intimidating and threatening manner towards her during the Children’s Court proceedings, and in particular an episode which occurred at the Children’s Court in early 2019 when the father had to be removed by security. The father denies this occurred.
According to the mother, in early 2019 she confronted the father about the child’s injuries, and he admitted he had injured the child. This conversation is vehemently denied by the father, and was a matter raised during the County Court proceedings. The father considers the mother has attempted to mislead this Court by deposing to that conversation.
In mid-2019, the mother attended the City F Police Station and signed a statement about the circumstances surrounding the child’s injuries. A copy of her police statement is Annexure MSB-01 to her trial affidavit filed 6 July 2023.
In mid-2019, Police Officer G sent the mother a letter confirming that the child’s injuries had been fully investigated by the police, the mother was exonerated from the investigation, and that the Officer in Charge had decided to charge the father.
In mid-2019, the DHHS applied to the Children’s Court to withdraw its Protection Application, subject to undertakings of the parents. The notation to the undertakings said the “DHHS and the wife agree that the wife did not cause harm to the child and that the wife is a protective parent”.
The first criminal trial was held in the Magistrates Court of Victoria (“the Magistrates Court”) in City F in early 2020. It was asserted by the father’s defence team that the mother had caused the child’s injuries, and that the maternal grandmother and aunt had “forced [the father] to take responsibility for [her] crimes”.[1] As part of his defence, the father also contended the mother was mentally unstable and had tried to seriously harm herself on two occasions, and had threatened to seriously harm the child prior to the child being injured. These allegations were denied by the mother.
[1] Mother’s affidavit filed 6 July 2023.
Upon conclusion of the trial, the father was found guilty. At the sentencing hearing in early 2020, the father was sentenced to imprisonment. The father appealed this decision, and he was placed on bail pending determination of the appeal.
The appeal was heard as a hearing de novo over fifteen days in the County Court of Victoria (“the County Court”) before Judge Parish. In late 2021, the County Court found the father not guilty, and he was acquitted.
On 17 June 2019, the mother filed an Application for Final Orders in the Melbourne registry of the Federal Circuit Court (as it then was). The matter proceeded in the Federal Circuit Court, and interim parenting orders were made on 21 November 2019, 13 February 2020, and 4 February 2022. From 4 February 2022 until time was suspended on 13 February 2024, the child spent supervised time with the father once a week.
These proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia on 17 June 2022, and subsequently listed for final hearing before me on 10-11 and 21-25 August 2023.
On 8 August 2023, the father’s solicitor contacted my Chambers to request an urgent mention, as the father sought to file further evidence prior to the commencement of trial. The trial was subsequently adjourned to 21 August 2023, and orders were made for the further filing of documents.
The trial commenced before me on 21 August 2023 and proceeded for five days. During the trial, it became apparent the father had re-partnered, and was expecting a child with his fiancé, Ms H (“Ms H”). The mother has not re-partnered.
The trial was adjourned to recommence on 25 September 2023. On that day, the father requested a further adjournment because child protection had contacted Ms H, who was pregnant, about their proposed involvement after the birth of her baby. The father was distressed by the action of DFFH, and he was unable to continue with cross-examination.
The father and Ms H’s child, J (“J”), was born in 2023.
The trial was scheduled to recommence on 19 February 2024. Prior to the recommencement of the trial, the matter was listed for an urgent mention on 13 February 2024 because Ms H and the fathers’ new baby, J, had been admitted to C Hospital and the mother sought to suspend the father’s time with the child.
At the mention on 13 February 2024, orders were made for the father’s time with the child to be suspended until further order, for the mother to file an Application in a Proceeding and supporting affidavit, the father to file a Response and affidavit, and for the mother’s Application in a Proceeding to be heard on 22 February 2024.
On 22 February 2024 the suspension of the father’s time continued, leave was granted to the Independent Children’s Lawyer to issue subpoenas, and the trial was adjourned to 8 April 2024 for a further 5 days.
The trial did not conclude as anticipated, and was again adjourned to 1 August 2024, prior to concluding on 2 August 2024.
THE PROPOSALS OF THE PARTIES
The mother’s proposal
Prior to the commencement of the trial, the mother filed an Amended Initiating Application on 6 July 2023 which sets out with precision the final orders she then sought.
As a result of the mother finding out about the hospital admission of J in early 2024, and subsequently hearing Ms H’s evidence, the mother’s proposed orders dramatically changed, and the orders sought by her on a final basis were essentially identity orders. A copy of the final orders sought are Annexure A to these reasons.
The mother asserted the father poses an unacceptable risk of psychological harm to the child. She also made submissions in accordance with the principle of Re Andrew (1996) FLC 92-692 (“Re Andrew”). It was her position, given the circumstances of this case, that regular and frequent time between the father and child, including supervised, would cause her such a level of distress and anxiety, that her parenting capacity would be discernibly impaired.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Amended Initiating Application of the mother filed 6 July 2023;
(b)Affidavit of Ms Babayev filed 6 July 2023;
(c)Affidavit of Ms Babayev filed 3 August 2023;
(d)Affidavit of Ms Babayev filed 16 February 2024;
(e)Affidavit of Ms Babayev filed 5 August 2024;
(f)Affidavit of Ms E filed 6 July 2023;
(g)Affidavit of Dr L filed 6 July 2023;
(h)Affidavit of Dr M filed 5 May 2023;
(i)Affidavit of Dr N filed 3 May 2023;
(j)Outline of Case document filed 3 August 2023; and
(k)Documents tendered by Kings Counsel, including documents produced pursuant to subpoena.
The father’s proposal

During the trial, on 23 August 2023 counsel for the father provided a proposed Minute of Final Orders sought.
At the conclusion of the trial, the father’s position had not significantly changed vis-a-vis final orders sought by him. A copy of the proposed Minute of Final Orders sought by the father is Annexure B to these reasons.
Documents relied upon by the father
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 21 July 2023;
(b)Affidavit of Mr Babayev filed 14 August 2023;
(c)Affidavit of Mr Babayev filed 21 July 2023;
(d)Affidavit of Mr Babayev filed 20 February 2024;
(e)Affidavit of Ms H filed 14 August 2023;
(f)Affidavit of Mr O filed 21 July 2023;
(g)Affidavit of Ms P filed 21 July 2023;
(h)Affidavit of Dr N filed 3 August 2023;
(i)Victorian Department of Health and Human Services psychiatric report dated 23 January 2019;
(j)Outline of Case document filed 14 August 2023; and
(k)Documents tendered by counsel, including documents produced pursuant to subpoena.
The Independent Children’s Lawyers proposal
Prior to the commencement of the trial, on 21 August 2023 the Independent Children’s Lawyer provided a proposed Minute of Final Orders sought.
At the conclusion of the trial, counsel for the Independent Children’s Lawyer provided an amended proposed Minute of Final Orders. A copy of the Minute is Annexure C to these reasons.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer did not file an Outline of Case which specified the documents relied upon. Documents were tendered by counsel for the Independent Children’s Lawyer, including documents produced pursuant to subpoena.
Credibility of Witnesses
The mother’s witnesses
The mother gave evidence and was cross-examined by both counsel for the father and the Independent Children’s Lawyer. As would be expected, she was at times emotional and teary, and found the proceedings difficult and taxing. Notwithstanding her obvious distress, she impressed me as truthful and thoughtful in her responses and did not try to embellish her case in a manner she thought would assist her. She was also a reliable and consistent historian. I accept her as a witness of truth.
Ms E is the mother’s sister who was cross-examined by counsel for the father and the Independent Children’s Lawyer. She was an impressive and reliable witness, who I accept as truthful.
Dr L is the mother’s treating psychologist, who has treated the mother over a prolonged period. Dr L is a forensic psychologist, and I refer to her evidence in greater detail below. Dr L was cross-examined on two occasions by counsel for the father and the Independent Children’s Lawyer. On both occasions, Dr L impressed me as a highly intuitive and extremely professional witness. I accept her evidence without qualification.
The father’s witnesses
The father gave evidence and was cross-examined by both Kings Counsel for the mother and counsel for the Independent Children’s Lawyer. The father was not particularly responsive to questions asked of him, and on many occasions sought to give evidence through the prism of what he considered would advance his case. He demonstrated minimal insight into the mother’s predicament, and the aggressive manner in which he conducted the proceedings did little to assist his case. An example of his lack of insight and empathy was his application for change of residence of the child, filed in July 2023, which he subsequently abandoned, and the aggressive and accusatorial nature of the affidavits filed in support of that application. He did not acknowledge the impact of his conduct on the mother, nor on Ms H, and sought to downplay his involvement in anything adverse to his case. An example was his evidence of the events of late 2023 between himself and Ms H, when he denied there had been any conflict, which was completely at odds with Ms H’s evidence. I prefer the evidence of the mother and Ms H to the father.
Mr O, the paternal grandfather, swore an affidavit which was filed in the proceedings, and was cross-examined by both King’s Counsel for the mother and counsel for the Independent Children’s Lawyer. His evidence was obviously to support his son to the extent he thought possible. He lacked insight about the mother’s predicament and why he would not be a suitable supervisor for future time between the child and his father. He did not seem particularly concerned by his involvement in the video of the child (Exhibit F-1).
Ms P, the partner of the paternal grandfather, swore an affidavit and was cross-examined by both King’s Counsel for the mother and counsel for the Independent Children’s Lawyer. It was clear her primary objective was to provide whatever support she could for the father’s case, which is entirely understandable. However, she was at times combative and defensive. She was unable to initially concede that a breach of an undertaking, no matter how minor in her view, represented a fundamental breach of the mother’s trust in her capacity to appropriately supervise any time between the father and child.
Ms H swore an affidavit in the proceedings in August 2023. By the time she gave evidence and was cross-examined, her role in the father’s life had changed completely. In her affidavit, she addressed her relationship with the father and her potential suitability as a supervisor for time between the father and child. By the time she gave evidence, the focus of her evidence was the conflictual aspects of her relationship with the father, and the father’s conduct towards her, which on a few occasions could be described as coercive and controlling. She was a reluctant witness and did not want to be dragged into the dispute. I found her evidence to be compelling and heartfelt. She was clearly upset by recounting the events shortly before her daughter’s birth, when child protection became involved, and the deterioration of her relationship with the father. At times she was almost protective of the father, which was obvious from the hospital admission notes and those of DFFH, which were put to her. She impressed me as highly responsive, and had an excellent recollection of events, in particular the events of late 2023, which were corroborated by her contemporaneous notes. I consider her to be a witness of the utmost truth and prefer her evidence to the evidence of the father, wherever the evidence is conflictual.
The Independent Children’s Lawyers witnesses
Dr M, psychologist, prepared a Family Report in February 2023. The Family Report was a most comprehensive and detailed analysis of the family dynamic and the events leading up to, and immediately after the child’s injuries as a baby. I found Dr M’s analysis and observations to be compelling, and I wholeheartedly accept his final recommendations during cross‑examination. He was a highly professional and extremely credible witness.
The following documents were tendered during the course of the trial:

Exhibit Number

Description

M-1

Text messages between the mother and Ms P. Document 20 to mothers’ tender bundle, pages 31-34.

M-2

Text messages between the mother and Mr O. Document 21 to the mothers’ tender bundle, pages 35-42.

M-3

Text messages to Ms W, dated 24 October 2018. Document 1 to the mothers’ tender bundle, page 2.

M-4

Confirmation of booking email for appointment with Dr R, dated 30 October 2018. Document 2 to the mothers’ tender bundle, page 3.

M-5

Emails and letters between the parties. Documents 11-16 of the mothers’ tender bundle, pages 14-25.

M-6

Email from mothers then lawyer to the fathers then lawyer, dated 11 February 2019. Page 4 of the mothers’ tender bundle.

M-7

DFFH report of early 2019 and record of meeting early 2019. Page 442 of the court book.

M-8

SOCIT and Child Protection’s first visit case note, dated late 2018.

M-9

Magistrates Court of Victoria, transcript of proceedings, dated early 2020. Tendered by consent.

·     Page 6 line 19 – page 7 line 12

·     Page 14 line 22 – page 16 line 1

·     Page 24 line 6 – line 13

M-10

Letter from Dr S dated 10 July 2024.

M-11

Mothers Final Minute of Orders sought.

F-1

Video 1 and 2 of X produced by the father, dated 29 January 2023.

F-2

Reasons for verdict of Judge Parish, page 353 of the court book.

F-3

Fathers Final Minute of Orders sought.

ICL-1

Final Minute of Orders sought.

THE APPLICABLE LAW

The final hearing in this matter commenced prior to the commencement of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore do not apply to this case, and the consideration of best interest factors reflect the relevant legislation as at the commencement of final hearing.
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the dispute. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to the primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
As far as parental responsibility is concerned, s 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility and the father seeks an order that the parents have equal shared parental responsibility.
I will now turn to the statutory considerations and will firstly address the primary considerations.
Primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents.
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
In Mazorski v Albright [2007] FamCA 520, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
In McCall & Clark, the Full Court considered the meaning of s 60CC(2)(a) and said:
[119]… the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
There is no dispute the mother will continue her role as primary carer of the child, and the child will accordingly continue to enjoy a meaningful relationship with his mother.
Dr M was unequivocal the child enjoyed an excellent relationship with his father, which was beneficial to him.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
The mother remains steadfast in her belief that the father caused the child’s injuries, and the father believes the mother is responsible, although he does not seek a change of residence and does not assert the mother poses a risk of harm to the child. The father denies he poses any risk to the child and seeks orders for time with the child to gradually increase, culminating in overnight unsupervised time.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97. The Full Court adopted as correct, the statement of law in Austin J’s dissenting judgement in Fitzwater & Fitzwater [2019] FamCAFC 251 at [138]:
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before….
Both parties agreed the state of the evidence makes any findings with respect to causation of the child’s injuries impossible, thus neither the father nor the mother sought from the court a finding in this respect. In the absence of any causation finding, both parties contended, and it is accepted, this Court could not make a finding that either parent poses an unacceptable risk of physical harm to the child.
Rather, the mother initially contended there is an unacceptable risk of psychological harm to the child if the father is permitted to have unsupervised time with the child for various reasons. These are, the mother’s fear the child will sustain serious and potentially fatal physical harm in the unsupervised care his father, the father will denigrate her to the child, including false assertions she suffers from mental health conditions, and her fear is such that an order for unsupervised time would impair her parenting capacity (Re Andrew principle).
Subsequent to the events of early 2024 involving the father’s new baby, J, which are referred to below, the mother contended her levels of distress have escalated to the extent that her parenting capacity would be impaired even if the father were to have regular supervised time with the child. At best, she could only cope with professionally supervised time on four occasions per annum.
The father denies any responsibility for causing the injuries to the child and considers his acquittal in the County Court proceedings have exonerated him of any culpability. The father unequivocally considers the mother is responsible for the child’s injuries, as admitted by him during cross-examination, as do his family members, in particular his father, Mr O, and his partner, Ms P.
Notwithstanding the father’s position that he did not cause the child’s injuries and does not pose a psychological risk to the child, he proposes time with the child resume, initially with family members as supervisors. Thereafter, he proposes time take place with family members in substantial attendance, then occasional attendance, prior to progressing to overnight time, which will be unsupervised from late 2026.
In support of her allegations of that the father poses an unacceptable psychological risk to the child if he were to have unsupervised time, the mother relied on her evidence, in addition to the evidence of her treating psychologist, Dr L, who has treated the mother since May 2020, Dr M, who prepared a Family Report, and Dr N, psychiatrist. Both Dr L and Dr M were required for cross-examination, but Dr N was not.
The mother’s evidence was to the effect she would not be able to tolerate nor contemplate unsupervised time between X and his father. However, during cross-examination by counsel for the father in August 2023, the mother agreed she might be able to consider or tolerate unsupervised time between X and the father, when X was older and able to self-protect. She said when X was in late primary school, she might be able to consider some progression to unsupervised time.
Dr N conducted a psychiatric assessment of both parents on two occasions. In his unchallenged report of 2 August 2023, in the context of the possible impact on the mother of unsupervised time between X and the father, he observes “it may be possible that this [trajectory of anxiety] will continue, and will remain clinically salient and distressing to her, and will impact on her capacity to parent [the child] effectively”.

On 4 February 2022, an order was made by a judge of Division 2 of the FCFCOA appointing Dr M as a single expert. The order requested him to address whether the child has been, or is at risk of, being abused, neglected or exposed to family violence in the care of either parent, whether any risk issues identified in the assessment can be satisfactorily ameliorated and if so how, the benefit of the child having a meaningful relationship with each of his parents and the willingness and capacity of each of the parents to foster and support a meaningful relationship between the child and the other parent in a way that is safe and promotes his best interests. Dr M prepared a Family Report, which is annexed to his affidavit of 5 May 2023.
I now turn to the evidence of the mother’s treating psychologist, and Dr M as to the impact on the mother, of unsupervised time between the child and the father.
Dr L’s report and evidence during her first cross examination
Dr L prepared a report dated 30 June 2023, which is annexed to her affidavit filed 6 July 2023 and is referred to as a Treatment Summary Report. Dr L was cross-examined on 22-23 August 2023 and again on 1 August 2024, by counsel for both the father and Independent Children’s Lawyer.
As at the date of Dr L’s report, 30 June 2023, the mother had attended upon Dr L on 40 occasions. She has continued to consult Dr L for treatment on a regular and frequent basis.
At [417] of the Family Report, Dr M summarises Dr L’s clinical assessment of the mother’s psychological status as follows:
·[The mother] was referred in May 2020 for management of PTSD symptoms, with the source of traumatic stress being [the child’s] physical harm (in 2018) and her understanding this was caused by [the father], and grief and loss related to the breakdown of her marriage, with secondary exacerbation of PTSD symptoms;
·[The mother’s] present clinical diagnosis comprises ongoing traumatic stress in the context of the history of criminal and family law proceedings, with related symptoms variability and functional vulnerability, including episodic debilitation;
·By DSM-V diagnosis, [the mother] presented throughout therapy with subthreshold PTSD;
·[The mother] experiences genuine extreme fear at the prospect of [the child] spending unsupervised time with his father;
·In the event the court were to make an order providing for X to spend unsupervised time with his father:
·[The mother’s] functioning would significantly deteriorate such as to have a debilitating effect on her;
·This effect would occur irrespective of the context or extent of unsupervised time, with exacerbation linearly related to the extent of such time;
·Clinical intervention would assist [the mother] to manage this effect to a degree, but would not prevent the extent of the debilitating effect;
·[The mother’s] positive functioning in parenting, employment, and tertiary education domains is the result of her derivation of psychological security from the supervision of [the child’s] time with his father; and
·In respect of this debilitating effect on [the mother’s] functioning under such circumstances, Dr L is not presently able to:
·Identify any ancillary court orders which could assist to prevent the extent of this effect, where the basis of [the mother’s] fear which underlines this effect is the absence of supervision; and
·Predict when this effect might change.
·Dr L further suggested that [the mother’s] asserted extreme fear of the physical harm that X is liable to be caused by his father is not delusional in nature (at [307]).
No counsel objected to the above summary in Dr M’s report.
During her first cross-examination in August 2023, Dr L did not resile from the opinion expressed in her report. She expanded upon, and clarified the extent to which the mother’s parenting capacity would be impaired if X were to spend unsupervised time with his father, which included physical impairment, resulting in hospitalisation of the mother.
Dr L rejected the proposition put to her by the father’s counsel, that therapy confronting the mother’s beliefs would somehow enable the mother to cope, primarily because the mother’s beliefs and fears were derived from significant and real events; namely, severe medically unexplained injuries to her baby. Dr L said she was still of the opinion that unsupervised time in the short term, being over the next few years, would be detrimental to the mother’s mental health.
Dr M’s Family Report addresses the issue of X spending unsupervised time with the father as follows:
[413].[The child’s] exposure to impairment in his mother’s parenting capacity. [The mother] asserts an extreme fear that [the child] will sustain serious, potential fatal physical harm in the unsupervised care of his father. She further asserts that her fear is to an extent that she could not cope with an order providing for such an arrangement and would be caused extreme stress and distress and significant impairment to her functioning…
[414].There was no clinical evidence at assessment which would cause material doubt to attend the authenticity of [the mother’s] asserted fear in this regard.
[415].Despite her expressed grievance in respect of [the father’s] alleged mistreatment of her and [the child]… there was no aspect of her clinical presentation which suggested her asserted fear was more likely than not to be contrived for perceived forensic advantage. Her affect was congruent with such fear profile, with highly anxious and tearfully distressed features in the context of related reflections. Her distress was absent overt histrionic or exaggerated features. Her asserted inability to formulate a proposal for [X’s] future supervised time with his father impressed clinically, in the context of her presentation, as reflecting genuine anxious paralysis. It further bears emphasis that she inquired at close of interview if I would be present throughout [the child’s] time with his father, despite the formal setting for the purposes of these proceedings.
At paragraphs [436] and [437] of his Family Report, Dr M concluded:
436.Where it is neither contended nor clinically indicated in [the child’s] best interests to be removed from his mother’s primary care, the predicted impairment to [the mother’s] parenting capacity as a consequence of an order for [X] to spend unsupervised time with his father is attended by a significant risk of psychological harm to [the child] with detrimental impact upon his well‑being outcomes. The risk, as measured against the relevant parameters… would be clinically assessed as presently:
(a)unacceptable, where outweighing the benefits likely to accrue to [the child] from this unsupervised time (noted in due course); and
(b)not able to be sufficiently ameliorated by any safeguards such as to permit this unsupervised time.
437. …the central risk findings are presently indicated thus:
(a)[X] is not identified at an unacceptable risk of physical harm in the care of either parent;
(b)[X] is identified at a material risk of psychological harm and compromised well-being outcomes as a consequence of the parameters of the parties’ dispute and related factors; and
(c)[X] is identified at an indirect unacceptable risk of psychological harm in his father’s unsupervised care by reason of secondary significant impairment to his mother’s parenting capacity.
Dr M was not cross-examined about his Family Report until August 2024. As explained below, during cross-examination, he did not deviate from his opinion that X would be at an indirect unacceptable risk of harm in his father’s unsupervised care.
Events of early 2024
The trial was adjourned in September 2023 at the request of the father, as he was unable to continue with cross-examination because of his distress. During the morning of 25 September 2023, when he was due to be cross-examined, the father received a phone call from Ms H, advising him a worker from child protection had telephoned Ms H, to foreshadow proposed future involvement with the father and Ms H, after the birth of their baby, who was due in late 2023. Counsel for the father advised the court that the child protection worker had told Ms H they believed the father was responsible for X’s injuries. Their baby, J, was born in late 2023.
The trial was due to resume in February 2024. It was unable to resume earlier because of both unavailability of counsel and my personal health issues.
As referred to above, on 13 February 2024, at the request of the mother, the matter was listed for urgent mention and orders were made suspending the father’s time with the child. A further hearing occurred on 22 February 2024, after both parents filed affidavits about the events of early 2024. Thereafter the child’s time with the father remained suspended.
In the mother’s affidavit filed 16 February 2024, she deposes that in early 2024 she returned to work after one week of annual leave and became aware that J had been admitted to the paediatric ward of C Hospital the previous week. The mother’s affidavit further details the relevant circumstances, which are summarised below.
The mother became aware of J’s admission to the hospital due to her management role and employment in the medical sector. She regularly attends meetings and is aware of admissions, including medically and socially complex cases and is routinely asked to advise on such cases. She has subsequently taken steps to avoid receiving or conveying formal information about J’s admission.
Upon learning of J’s admission and the corresponding DFFH investigation, the mother deposes to being immediately shaken and feeling sick. She experienced flashbacks to the traumatic circumstances of X’s hospital admission in 2018, and as days went by, she became increasingly worried, which was exacerbated by the fact she received the information from her workplace, rather than directly from the father.
In response to her concerns, the mother instructed her lawyers to email the father’s lawyers on in early 2024, requesting full disclosure of the circumstances around the admission and any child protection involvement. As no meaningful response was received prior to the weekend, time between the child and father did not take place.
Further follow-up emails were forwarded to the father’s lawyers, prior to a response around one week later advising that the father’s lawyer hoped to have instructions that day or the next. One week later, a response was provided by the father’s lawyers, which did not explain why J was admitted to hospital, nor satisfactorily explain whether child protection was still actively involved or pursuing an investigation.
The mother further deposes to the impact on her, and her extreme concerns for both her and X’s safety, which had been reinforced by the involvement of child protection. Not understanding the full extent of what had occurred with the child protection investigation, and the father’s delay in providing information to the mother, exacerbated her anxiety and she could not help thinking about worst-case scenarios which may have triggered a new investigation by child protection, and the obvious direction that the father not spend time with the J. During the three weeks prior to swearing her affidavit, the mother deposes to spending time at her parents’ home because she experienced frequent nightmares of the father harming her and the child and she had difficulty sleeping. She also suffered two medical episodes which are typically triggered by stress and increased the frequency of her attendances upon her psychologist, Dr L to implement additional support measures. She deposes to “trying [her] very best to manage the intrusive and unwanted thoughts [she was] experiencing”.
Because of her anxieties, she did not feel able to send the child to the scheduled spend time sessions with the father because she felt “paralysed with fear that something bad [was] going to happen to him - both physically and emotionally”. She deposed to feeling “pure dread at the thought of the Sunday approaching”, being unable to relax, and an overwhelming sense of powerless in a situation where she knows she must comply with orders, but must also do everything she can to protect the child.
The investigation regarding J and the corresponding risk to X consumed the mother’s thoughts and time, and she felt completely overwhelmed and sick with worry. She experienced great difficulty concentrating at work due to being triggered by the trauma of X’s injuries, and his admission to the same hospital at a similar age. It was incredibly stressful for the mother to have discovered information concerning J in her workplace, and that has exacerbated her anxieties. It also further diminished her trust in the father’s preparedness to acknowledge her concerns and develop insight or any prospect of building trust in the future.
She deposes to not believing any level of supervision can adequately protect X, and the lack of communication from the father and deliberate obfuscating of issues raised, including the involvement of the DFFH with J, led her to hold grave concerns. Her anxiety and ability to function at work, and as a parent to the child, was adversely affected. Overall, the mother felt more afraid for X and herself, than ever before. The fresh allegations about the father’s conduct with his new partner and child, some five years after X sustained injuries, confirms her belief that the risk the father presents remains wholly unmitigated.
During the second cross-examination of the mother in August 2024, she was asked about the effect of this information on her. I refer below to the mother’s cross-examination. I accept unequivocally her evidence in this regard.
The father filed an affidavit on 20 February 2024. The father deposes, amongst other matters, to the involvement of child protection around the time of J’s birth and his understanding of the circumstances giving rise to J’s admission to C Hospital in early 2024. Upon receiving a text from Ms H advising of the hospitalisation, the father went to the hospital that evening and returned the following morning, when he was interviewed by child protection. Child protection was concerned that J was underweight, and she had a mark on her body, which was either a bruise or a birthmark. Subsequent to meeting with child protection officers at the hospital, the father was advised he should not have any contact with Ms H or J until the completion of the investigation.
The father refers to receiving correspondence from the mother’s solicitors in early 2024, and that the child protection investigation was continuing. He did not provide any explanation as to why he failed to respond to enquiries of the mother’s solicitors or attempt to provide some reassurance to the mother.
As deposed by the father, in February 2024 during a phone call with a child protection worker, the father was advised a Case Plan had been prepared which would require the father’s time with J to be supervised, because it was asserted he had caused emotional harm to J.
The father received a copy of the Case Plan from child protection later in February 2024, despite having made multiple prior requests for the case plan to be emailed to him. He deposed to his intention to seek a review of the case plan by way of an application to the Victorian Civil and Administrative Tribunal.
In his affidavit, the father concludes “there is nothing in any of the information provided to me by child protection or in relation to the investigations that have occurred that could impact or should impact my time with [X]”.
On 22 February 2024, orders were made suspending X’s time with the father and granting leave to the Independent Children’s Lawyer to file a subpoena to obtain the DFFH records and to require Ms H to give evidence.
When the trial resumed on 8 April 2024, cross-examination of the father continued for four further days. The paternal grandfather, Mr O and his partner, Ms P were also cross examined, including about their involvement in the video of X, where the child was questioned by them and the father.
Evidence of Ms H
On 12 April 2024, J’s mother, Ms H, gave evidence and was cross-examined by all three counsel. Ms H had previously sworn an affidavit in the proceeding, dated 14 August 2023, which was relied upon by the father.
Ms H gave her evidence electronically. She was a highly impressive witness who was responsive and insightful, despite being cross-examined about events which caused her obvious distress. Prior to the commencement of her evidence, I made an order pursuant to rule 8.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to enable all three counsel to cross-examine Ms H.
Ms H was cross-examined about her recent and current relationship with the father, child protection involvement with her around the time of J’s birth, the circumstances leading up to the hospital admission of J in early 2024 and the investigation by DFFH, arising from the hospital admission.
Ms H agreed child protection had contacted her in late 2023, two days after J’s birth, and that it was distressing for her. The representative from child protection had provided information about X’s injuries, which was different from the information she had been provided by the father and his family. At that time, the father was not living with her, as in August 2023 Ms H had requested that he give her space. She agreed X had been told she was pregnant on the day before she swore an affidavit which was filed in the proceeding.
Ms H agreed with Kings Counsel for the mother, that prior to child protection speaking to her in late 2023, the information she had been given about what happened to X and his injury, was that the mother had done it and then blamed the father for it, that the father could not have done it, and that had been proven in court.
Child protection had opened an investigation as at J’s birth, which was closed in late 2023. Between J’s birth and the father being interviewed in late 2023, time between the father and J was supervised. Thereafter, the plan was for Ms H to monitor the father, and she was required to be present when the father was spending time with J.
In early 2023, Ms H attended an orthopaedic review in relation to J, and a few days later she attended a maternal child health nurse, which was to include a review of J’s weight and inability to lift her head during tummy time.
During the maternal child health nurse appointment in early 2023, Ms H was advised by the nurse to take J directly to the hospital and not to tell the father.
Ms H was aware the hospital notes of J’s admission had been subpoenaed, as had the file of DFFH in relation to J.
The hospital admission notes refer to the reasons for admission. Ms H agreed the notes referred to two marks on J’s back, one of which was queried as a birthmark, and the other was queried as a bruise. J was admitted to the paediatric ward around 9 or 9.30 pm that night.
The admission notes record “mum tearful affect, reported concern around father roughly grabbing [J] off her when he was annoyed at mum”. Ms H agreed with Kings Counsel for the mother, that she told child protection about the father roughly grabbing J from her when he was annoyed at her, and that incident occurred in late 2023.
Ms H said she had received a text from the father around 1.30 pm in early 2024, enquiring whether everything was okay. The father sent further texts around 8.00 pm and 9.00 pm that evening, prior to her responding at 10.20 pm, when she said “I’m in hospital with [J]. The nurse sent us to emergency because she saw a bruise on [J]. We have just gone to a room now as they want her to stay overnight and check feeding, as she is small”.
Thereafter, there were a series of text messages between Ms H and the father, which culminated in the father arriving at the hospital and seeing Ms H. Her evidence was that she did not want him to come to the hospital that night. Eventually the father and Ms H were left alone for approximately five minutes, and she agreed that she was visibly upset during the time the father was at the hospital. When asked why, she said the father was upset with her about not telling him that she and J were in hospital and not providing details to him, and she probably asked him to stop because. The notes record Ms H was worried that the father would be angry because she did not tell him about what was happening, which she confirmed during cross-examination.

The following day, in early 2023, two child protection workers interviewed Ms H. She agreed with the notes, that Dr T, the paediatrician, was not sure whether the second mark on J was a bruise, and there were no other signs of injury on J. It was recommended J stay in hospital for weight gain due to concerns about her weight loss. The notes reflect that Dr T did not have an opportunity to “go through the social side” due to the father being at the hospital in the morning, during this discussion and assessment. There was also a discussion about whether the mark could be a bruise or a birthmark, as it had not changed within the previous week. Ms H and J remained in the hospital for a week, whereupon it was ultimately decided that the second mark was a haematoma, similar to a birthmark.
The records indicate that the hospital “was not sure about mum’s presentation with dad” because they were unable to get Ms H by herself to get more history.
Kings Counsel for the mother put to Ms H the notes of her interview with child protection which occurred in early 2024. Ms H agreed with the content of these notes. They refer to an incident between Ms H and the father in late 2023, in which the father had grabbed J from her. The notes state J was a “bit grizzly” and Ms H was holding her in a recliner before the father went over and “pushed his hands in hard and grabbed [J]”. As a result, J “started yelling, really loud yelling” and Ms H was in shock and was upset. The father gave J back to Ms H, and she settled her. Ms H was not sure how long it was before the father gave J back to her, although it was at least minutes, because he had tried to play music to J from his phone.
Prior to this incident, Ms H explained that the father had been upset with her because she did not let him take J by himself. Ms H made notes about the event.
During her evidence, Ms H elaborated the father had taken J to the change table, and she was crying. She heard J “amping up and yelling, [a] really upset cry”, and when she went over to comfort her, the father told her not to hold her. After that, Ms H fed her on the recliner, which was when the father roughly grabbed the child and pulled her away. The father was upset about Ms H spending more time with J than him, and Ms H went into the bedroom with J so she could calm down. The father was upsetting her while she was feeding and kept “going on and on” about Ms H “not letting him be a dad”. On that day, Ms H called him a pig because she was upset, and explained the father “never puts [J] first and it breaks [her] heart”. She told child protection that the father “would talk all the time about being upset with [Ms H]”.
Ms H told the father not to talk to her like that in front of J, and it is not okay if she now thinks that it’s okay to talk to women like that. When asked by child protection what was the father saying to her, Ms H checked her phone and said the father was questioning if she was okay mentally, as if it was not a normal reaction to be upset. When asked whether the father had done that before, Ms H said he had upset her when she was pregnant, and she asked him to leave. She gave evidence the father had made her write an affidavit and told her she had no choice because if she did not, she could go to jail.
When asked by child protection whether she could put in place boundaries with the father, she said she felt like when she asked him to stop pushing and talking, but he would not.
Child protection asked Ms H whether there were other matters she was concerned about, and she referred to an incident in the car with the child seat. On this occasion, J was in her car seat when Ms H noticed her head drop down. Ms H then told the father to pull over because her airways could become blocked to which the father responded, “are you serious”. Ms H considered that J was not always safe in his care.
Throughout the interview notes, there are references to Ms H being upset, and not sure whether she should be telling child protection her concerns about the father’s behaviour because he would be angry. Ms H agreed she had told child protection the father’s behaviour could change from day-to-day, and that one day he was amazing and the next he was horrible.
Ms H was visibly and genuinely upset whilst giving her evidence. Counsel for the father put to her that her description of the father removing the child from her as “grabbing” was not correct and could instead be described as taking. Ms H denied that was the case and was steadfast in her evidence. When the father was cross-examined about the incident, he denied any such incident had ever occurred and professed his dealings with Ms H were normal.
For reasons referred to above, I prefer the evidence of Ms H to the father. I unequivocally accept the evidence of Ms H as truthful, considered and balanced. She was a highly impressive witness with an excellent recall of past events.
At the conclusion of Ms H’s evidence, the trial was adjourned and recommenced on 1 August 2024. During Ms H’s evidence, the mother was demonstrably emotional and highly upset.
Impact of Ms H’s evidence on the mother
Prior to resumption of the trial, the mother filed a further affidavit about the impact on her of the events of early 2024 and Ms H’s evidence. There were several objections to the affidavit, which were heard and determined. The affidavit was allowed into evidence, subject to counsel for both the father and Independent Children’s Lawyer, being permitted to further cross‑examine the mother.
In her affidavit, the mother deposed to how the evidence she heard in court in April 2024, including that of the father, Ms P, Mr O, and Ms H had impacted her health, resulting in an admission to hospital in early 2024 because of severe medical episodes she was experiencing, which required intravenous medication.
She deposed to her previous admissions in August 2021 and December 2022 and explained the medical episodes have become more frequent and severe as court proceedings and events have unfolded. She considers the proceedings have required her to “[revisit] the harrowing experience around [X’s] injuries” and have exacerbated her nightmares.[2] Ms H’s allegations about the father, and the father’s undermining of her mental health, reawakened many of her fears and concerns, such that she felt paralysed by these worries.
[2] Affidavit of the mother filed 5 August 2024, paragraph 17.
The medical episodes have reached a level where she cannot function adequately, lives in constant fear, and has completely exhausted her reserves both physically and mentally. While she has continued to engage regularly with her psychologist, hearing evidence about the father’s conduct and behaviour towards Ms H and J has increased her fears about what she considers the father is capable of doing, even though X’s injuries occurred almost six years ago.
The impact of her workplace on her health and well-being has worsened over time, particularly as J was admitted to her place of work, which has triggered her anxieties and fears. She is now unable to continue work full-time and has made arrangements with her employer to work part‑time until the conclusion of the proceedings. Thereafter, she is unsure whether she will be able to recommence full-time employment. Her part-time employment has had a direct financial impact on her capacity to provide financially for X, particularly because neither the father nor his family provide any financial support for X, including no child support. Overall, she concluded she feels more afraid for herself and X than ever before. The new allegations against the father involving Ms H and J, and the fact that the father has very limited supervised time with J, confirms her belief that the father presents a risk to X, which remains wholly unmitigated.
During cross-examination, the mother remained steadfast about the devastating impact of the evidence she had heard. When it was put to the mother by counsel for the father that her reaction to Ms H’s evidence had heightened her anxiety, she replied she would not describe her current state of health as a reaction, but rather she lived in a constant state of worry about X’s welfare and safety since he was injured as a baby. The incident with the father, Ms H and J had resulted in her fear severely compromising her ability to function as a person. She expressed concerns about X’s exposure to the father’s point of view as he became older and understood his circumstances, and whether the father would be able to support his relationship with the mother, or whether out of anger and hatred the father may try to break the bond between mother and child. She said she was worried and deeply afraid for X’s emotional well-being. Her impression was the father had not changed at all because he had behaved in the same manner as he had with her and X in another relationship to another woman and child. The mother’s distress whilst giving that evidence, was palpable. I accept her evidence unequivocally.
Because of the mother becoming aware of J’s hospital admission and hearing Ms H’s evidence, she amended her proposal for the child to spend time with the father. In contrast to her proposal at the commencement of the trial, when she proposed regular time between the child and the father, with Ms H as a suitable supervisor, she proposed a drastically reduced regime of time between the child and the father, which is effectively professionally supervised identity time.
The rationale for the different and reduced proposal was the events of early 2024, Ms H’s evidence about the father’s asserted coercive and controlling conduct, the consequential devasting and detrimental impact on her psychological wellbeing and impairment to her parenting capacity.
Second cross-examination of Dr L
Because of the mother’s evidence about the impact on her of the events of early 2024 and the impact of Ms H’s evidence, Dr L was required for further cross-examination, which occurred on 1 August 2024. As noted above, Dr M was present in court during the further cross‑examination.
Dr L gave further evidence in chief about her understanding of the mother’s proposal for further reduced time between X and the father, and the impact on the mother if more time than she proposed was ordered by the court. Dr L said:
… I think it would have a negative impact on her mental health and I think that – I feel that even more strongly now than I did before, based on how [the mother] has presented to be in the last seven, eight, nine months – no, mostly since about February this year. I think a mental health has – has gone downhill and I think that it – yes. I think – I’m more concerned now than – then I was before in relation to her mental health and having more contact allowed.
(Transcript 1 August 2024, p. 2 lines 40-46)
Dr L also gave evidence about a conversation between herself and Dr S, the mother’s treating specialist. Her understanding of this conversation was that stress can be a major contributing factor to medical episodes, and that was likely to be the case for the mother.
Dr L was cross-examined by counsel for both the father and Independent Children’s Lawyer. During cross-examination by counsel for the Independent Children’s Lawyer, Dr L reaffirmed her earlier evidence that unsupervised time between X and his father in the short term, being over the next few years, would be detrimental to the mother’s health and that the concerns are greater now than they were earlier, at the time she gave that evidence.
Counsel for the Independent Children’s Lawyer also suggested to Dr L, that upon the conclusion of the court proceedings, an important stressor would be out of the mother’s life and that would be a good thing. Dr L’s evidence was that it would depend on the outcome, and that the outcome is critical, as opposed to just a resolution of the proceeding. She said, “it’s very, very clear to me that [the mother] will suffer significantly if contact resumes on a frequent basis”.[3]
[3] Transcript 1 August 2024, p.10 lines 24-25.
When asked in re-examination about the impact on the mother now, regarding orders which might eventuate in five or six-years’ time, Dr L’s evidence was “I think it would be devastating for her emotionally and for her mental health”.[4]
[4] Transcript 1 August 2024, p.15 lines 26-27.
When asked by me whether the mother would feel a sense of relief once the proceedings are over, and whether final orders other than proposed by the mother would cause problems with her mental health, Dr L’s evidence was it would. She said the proceedings themselves are secondary to the primary issue for the mother, which is limited supervised time between the child and his father. I unequivocally accept Dr L’s evidence in this regard.
Dr S’s letter addressed to the mother’s solicitor (Exhibit M-10) was tendered without objection. The letter refers to the mother presenting to hospital in late 2022 with a medical condition, where he was involved in her management. The mother has continued to attend on Dr S in his private rooms and returned to the emergency department of the hospital again in early 2024 suffering from a medical episode.
The mother suffers from a combination of symptoms which were daily in nature, and until early 2024 did not interfere with her daily function. As from early 2024, the symptoms have become more severe such that previous management techniques are no longer effective. The mother also suffers from insomnia, frequent night awakenings, and is no longer able to work because of the symptoms. Dr S conferred with Dr L, who confirmed the mother’s mental health had further deteriorated, which coincided with further symptoms. Dr S opined the mother’s prognosis is heavily dependent on the duration as well as the outcome of the family law proceedings. He suspects as long as the mother does not feel that her son is safe, it is likely she will continue to experience significant disability from her current medical predicament. Neither counsel for the father nor the Independent Children’s Lawyer required Dr S for cross‑examination, and I accept his opinion about the mother’s medical difficulties.
Evidence of Dr M
Dr M was not cross-examined until 1 and 2 August 2024, after the events of early 2024 involving baby J, when the mother’s position changed so that the child would spend time with his father on four occasions per year, professionally supervised.
Dr M was cross-examined by all counsel. By agreement of all counsel, prior to cross‑examination, Dr M was provided with the transcript of the ten days of evidence in the trial, together with a Minute of Orders sought by the parties. He was also present in court on the morning of 1 August 2024, and heard the further evidence of both the mother and Dr L.
Dr M’s opinion, referred to above, about the unacceptable indirect psychological risk to the child if he spent unsupervised time with his father, and the mother’s impaired parenting capacity were formulated 21-months prior to him giving evidence. When asked whether the evidence he had heard from the mother and Dr L had changed his earlier opinion, his evidence was no, and that he was unable to reject the evidence of Dr L that the mother would not be able to cope with unsupervised time. He also agreed orders for the child to spend time with the father, other than in accordance with her proposal, would place the child at an unacceptable risk of psychological harm.
Dr M agreed the evidence of Ms H, which had striking similarities to the personal experiences of the mother, would be extremely upsetting for her. The three similarities were firstly an experience in a car where Ms H contended the father would not allow her to attend to J in the car seat, secondly, the father’s conduct by “going on and on” and persisting until Ms H was made to sound like she was unreasonable, and thirdly, Ms H’s comments that the father can be fantastic one minute, and then horrible the next. The unpredictability of the conduct would be particularly triggering for a person who has anxiety, like the mother, because anxiety is fear of the unknown.
Dr M rejected the proposition put to him by counsel for the father, that Dr L, in reaching her conclusions and professional opinion, had relied entirely upon what she had been told by the mother. Dr M said Dr L would have relied upon both what the mother had said and her clinical presentation, which goes beyond just the mother’s commentary. He said:
…and bearing in mind as well [Dr L] is a forensic psychologist, so she has the doctoral training in – in forensic interviewing. So that’s another layer of her skill set. So it’s just a bit more than what [the mother] is simply saying to her. She’s able to observe, clinically, [Ms Babayev] through a number of prisms. And what she has advanced is a clinical opinion to suggest the extent of decompensation that will occur at this point of time if [Ms Babayev] is extended beyond what she is proposing in respect of [X’s] time with his father.
(Transcript 2 August 2024, p.13 lines 14-20)
I unreservedly accept Dr M’s evidence in this regard.
Additional Considerations
I will now turn to the additional considerations set out in s 60CC(3) of the Act.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is an almost six-year-old child, who is described in the Family Report as bright and charming with enthusiastic spirits, high space social engagements and a propensity for leadership.
At almost six years of age, the child is too young to have expressed specific views.
The nature of the relationship of the child with:
(i) each of the child's parents
(ii) other persons (including any grandparent or other relative of the child)
It is uncontroversial the child enjoys an excellent and loving relationship with both parents. The paternal grandfather, paternal step grandmother and maternal aunt gave evidence in the proceedings. There was no evidence to contradict a loving relationship between the child and extended families, however, this was not a focus of the trial.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
-     to participate in making decisions about major long-term issues in relation to the child;
-     to spend time with the child; and
-     to communicate with the child.
The mother has made primary decisions pertaining to the child, which have been appropriate and child focused. Whilst the father complains he has been excluded from long-term decision making, he has not actively sought to criticise the health or education decisions made by the mother. Further, there was no evidence there had been any disagreement about religious decisions, if any.
The father’s time with the child has been supervised, initially professionally and subsequently by family members. His time was suspended in February 2024 in circumstances referred to above.
Parental obligation to maintain the child
The mother has been solely responsible for the financial support of the child. The father has not paid child support.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents
The child has been in the primary care of the mother since 6 December 2018. She has nurtured and cared for him from his infancy, through recovery from his injuries to the present time. He is safe and thriving in the care of his mother.
The mother’s final proposal, which reduces supervised time to four occasions each year professionally supervised, is a significant reduction from the time initially proposed at the commencement of the proceedings. The mother initially proposed supervised time during the week, on weekends, and on special occasions with such time to be supervised by the father’s then partner, Ms H, Mr U, or a mutually agreed other person.

(ii)The father is at liberty to provide any comment to the mother for a period of seven (7) days from the date of notification, following which the mother will be at liberty to complete the enrolment of X at the said school; and

(b)With regard to X’s health and wellbeing:
(i)The mother provide to the father information about any significant
(ii)development with regard to X’s health and wellbeing; and

Lives with
2.That X live with the mother.

Spend time
3.That X spend time with the father, supervised, on four occasions each calendar year, for a period up to three hours duration on a Sunday in each of April, July, October and December with the time spent to coincide generally with school holiday periods and with the date to be agreed between the parties in writing, and in the absence of agreement the date to be nominated by the mother.
4.For the purposes of all time spent by X with the father, the following provisions shall apply:
(a)Time spent shall be supervised by a professional supervisor at the father’s sole expense;
(b)Time spent shall take place at either an approved supervised contact centre or an agreed community setting, or at such other venue as may be agreed by the parties in writing in advance; and
(c)changeover shall take place at the supervised contact centre or at such venue as is agreed in writing between the mother and the supervisor.

5.In the event that X suffers any injury or illness during the father’s time spent, the father and the supervisor will:
(a)in the event that X is distressed or injured to the point of needing to cease the activity and be comforted, immediately notify the mother, provide clear and full information as to the circumstances and in the event that the mother requests that time cease, return X to the care of the mother immediately; and/or
(b)in the event of any more minor injury provide the mother with details of the circumstances at the time of changeover.

Other
6.That the father shall provide to the mother in writing particulars of his telephone number and a designated email address for the purposes of receiving information about X from the mother and for the purposes of communication pursuant to these orders.
7.The mother shall provide to the father in writing particulars of her telephone number and a designated email address for the purposes of providing information about X to the father and for the purposes of communication pursuant to these orders.
8.The parties shall communicate concerning X via email, unless in an emergency, and in the event of an emergency during supervised time, the supervisor shall contact the mother by telephone.
9.That the parties do all acts and things and sign all such documents as may be necessary to enable the Mother to obtain an Australian passport to be issued to X.
10.That the mother be permitted to leave the Commonwealth of Australia with X for holidays, provided that if the mother intends to take X on an overseas holiday, she will provide the father with no less than six (6) weeks written notice of her intention to travel and the dates of the proposed travel.
11.Any passport obtained on behalf of X shall be held by the mother.

ANNEXURE B
The Fathers Final Minute of Proposed Orders
1.The parties have equal shared parental responsibility for the child X born 2018
2.The child X (X/the child) born 2018, live with the Mother.
3.X spend time with his Father until 6/12/2024, supervised, with handover when not at the child’s school be at a venue equidistant between the mother’s and father’s homes,
(a)From the conclusion of school each Tuesday (or 3pm) until 5.30pm; and
(b)From 10am to 5pm each Sunday.

4.X spend time with his father during the summer holidays 2024, from 6/12/2024 to
1/2/2025, supervised,
(a)Each Tuesday from 3pm to 7pm
(b)On Sunday 8 December 2024, 15 December, 22 December and 29 December 2024 from 10am to 5pm;
(c)On Sunday 12 January 2025, Sunday 18 January and 26 January 2025 from 10am to 5pm.

5.X spend time with his father during Term 1 in 2025, supervised
(a)Each Tuesday from the conclusion of school (or 3pm) to 5.30pm
(b)Each alternate weekend on Saturday from 2pm until 5pm and Sunday from 10am to 5pm

6.X spend time with his father during the term 1 school holidays 2025 with one of the approved supervisors to be in substantial attendance;
(a)On Tuesday 8 April 2025 from 10am to 5pm
(b)On Friday 11 April 2025 from 10am to 5pm
(c)On Tuesday 15 April 2025 from 10am to 5pm
(d)On Saturday 19 April and Sunday 20 April 2025 (Easter Sunday) from 10am to 5pm

7.X spend time with his father during Term 2 in 2025 (Tuesday 22/4/2025-Friday 4/7/2025) with one of the approved supervisors to be in substantial attendance;
(a)Each Tuesday from the conclusion of school (or 3pm) to 7.00pm
(b)Each alternate weekend on Saturday and Sunday from 10am to 5pm.

8.X’s time with his Father is suspended on Mother’s Day in 2024 if it falls on a weekend X would otherwise be spending time with his father in accordance with these orders.
9.X spend time with his father for Term 2 school holidays in 2024 (Sat 5/7/2025- Sunday 20/7/2025, school resumes Tuesday 21/7/25) with one of the approved supervisors to be in substantial attendance;
(a)On Saturday 12 July and Sunday 13 July from 10am to 6.30pm
(b)On Tuesday 8 July 2024 from 10am to 6.30pm
(c)On Tuesday 15 July 2024 from 10am to 6.30pm
(d)On Saturday 19 July and Sunday 20 July 2024 from 10am to 6.30pm

10.X spend time with his father during Term 3 in 2025 (Tuesday 21/7/2025-Friday 19/09/2025) with one of the approved supervisors to be in occasional attendance;
(a)Each Tuesday from the conclusion of school (or 3pm) to 7.00pm
(b)Each alternate weekend on Saturday and Sunday from 10am to 6.30pm.
(c)On Father’s Day from 10am to 6.30pm if X is not already spending time with his Father in accordance with these orders;

11.X spend time with his father for term 3 school holidays 2025 (Sat 20/9/2025-Sunday 6/10/2025 with one of the approved supervisors to be in occasional attendance;
(a)On Saturday 27 and Sunday 28 September 2025 from 10am to 6.30pm
(b)On Tuesday 2 October 2025 from 10am to 6.30pm
(c)On Friday 5 October 2025 from 10am to 6.30pm

12.X spend time with his father for term 4 in 2024 (Monday 6/10/2025 – Friday 5/12/2025) with one of the approved supervisors to be in occasional attendance;
(a)Each Tuesday from the conclusion of school (or 3pm) to 7.00pm; and
(b)Each alternate weekend on Saturday and Sunday from 10am to 6.30pm.

13.For summer school holidays in 2025 (Sat 6/12/2025 commences) X spend time with his father with one of the approved supervisors to be in occasional attendance;
(a)On Saturday 6 and Sunday 7 December 2025 from 10am to 6.30pm
(b)On Tuesday 9 December and Friday 12 December 2025 from 10am to 6.30pm
(c)On Tuesday 16 December 2025 from 10am to 6.30pm
(d)On Saturday 20 and Sunday 21 December 2025 from 10am to 6.30pm
(e)On Christmas Day Thursday 25 December 2025 from 10am to 5pm
(f)On Thursday 1 January 2026 from 10am to 6.30pm
(g)On Saturday 3 January and Sunday 4 January 2026 from 10am to 6.30pm
(h)On Tuesday 6 January 2026 from 10am to 6.30pm
(i)On Tuesday 13 January 2026 from 10am to 6.30pm
(j)On Saturday 17 January 2026 and Sunday 18 January 2026 from 10am to 6.30pm
(k)On Tuesday 20 January and Friday 23 January 2026 from 10am to 6.30pm

14.For term 1 in 2026 X spend time with his father;
(a)Each Tuesday from the conclusion of school (or 3pm) to 7.00pm
(b)Each alternate weekend on Saturday and Sunday from 10am to 6.30pm.

15.During the term 1 school holidays in 2026, X spend time with his father in the first week of the school holidays, save for between the overnight hours of 6.30pm and 8am when X is staying overnight they are to be present in the household at all times and in substantial attendance;
(a)On Saturday and Sunday from 10am to 6.30pm; and
(b)from 3.00pm on the Tuesday to 10am on the Wednesday; and
(c)from 10am to 6.30pm on the Friday

16.Commencing Term 2 in 2026, during school terms, X spend time with his father (with one of the approved supervisors to be in attendance between the overnight hours of 6.30pm and 8am when X is staying overnight they are to be present in the household at all times and in substantial attendance);
(a)Each Tuesday from the conclusion of school (or 3pm) to the commencement of school on Wednesday (or 9am)
(b)Each alternate weekend on Saturday and Sunday from 10am to 6.30pm.

17.For Term 2 school holidays in 2026, (3 weeks- 4 weekends), X spend time with his father (with one of the approved supervisors save for between the overnight hours of 6.30pm and 8am when X is staying overnight they are to be present in the household at all times and in substantial attendance);
(a)On the first weekend from 10am Saturday to 6.30pm Sunday; and
(b)On the first Tuesday from 10am Tuesday to 6.30pm Wednesday; and
(c)On the second Tuesday from 10am to 6.30pm; and
(d)On the third weekend from 10am Saturday to 6.30pm Sunday

18.Commencing term 3 in 2026, X spend time with his father;
(a)Each Tuesday from the conclusion of school (or 3pm) to the commencement of school on Wednesday (or 9am)
(b)Each alternate weekend from 10am on Saturday to 6.30pm on Sunday.
(c)On Father’s Day from 10am to 6.30pm if X is not already spending time with his Father in accordance with these orders;

19.For the term 3 school holidays in 2026 (2 weeks- 3 weekends) X spend time with his father;
(a)On the second weekend from 10am Saturday to 6.30pm Sunday; and
(b)In the second week, from 10am Tuesday to 6.30pm Wednesday and
(c)In the second week on Friday from 10am to 6.30pm.

20.For the term 4 school holidays (summer) 2026 X spend time with his father;
(a)From 5pm Christmas Day to 5pm Boxing Day; and
(b)Each alternate weekend from 3pm Friday to 6.30pm Sunday; and
(c)Each alternate Tuesday from 10am to 6.30pm on Wednesday (with the sequence to occur on the Tuesday following the weekend X spent time with his father.)

21.Commencing Term 1 in 2027, during school terms; X spend time with his father;
(a)Each Tuesday from the conclusion of school (or 3pm) to the commencement of school on Wednesday (or 9am); and
(b)Each alternate weekend from the conclusion of school (or 3pm) on Friday to 6.30pm on Sunday.

22.During school term holidays for term 1 in 2027, X spend time with his father
(a)In the first half of the holidays, for a block of 3 nights and 4 days and in default of agreement from Friday at 3pm to Monday at 6.30pm; and
(b)for an additional day from 10am to 6.30pm and in default of agreement the following Friday from the weekend X spent time with his father.

23.During school term holidays for term 2 in 2027 (3 weeks duration) X spend time with his father
(a)In the second half of the holidays, for one block of 4 nights and 5 days (and in default of agreement from Friday at 10am to Tuesday at 6.30pm); and
(b)2 additional days from 10am to 6.30pm and in default of agreement, on a Tuesday and Friday.

24.During school term holidays for term 3 in 2027;(2 weeks duration) X spend time with his father;
(a)In the first half of the holidays, for a block of 4 nights and 5 days and in default of agreement from Friday at 3pm to Tuesday at 6.30pm; and
(b)for an additional day from 10am to 6.30pm and in default of agreement the following Friday.

25.Commencing term 4 in 2027, X spend time with his father during school terms,.
(a)Each Tuesday from the conclusion of school (or 3pm) to the commencement of school on Wednesday (or 9am); and
(b)Each alternate weekend from the conclusion of school on Friday (or 3pm) to the commencement of school on Monday (or 9am)

26.For term 4 school (summer) holidays in 2027, X spend time with his father;
(a)From 5pm Christmas Eve to 5pm Christmas Day;
(b)In for a block of 5 days and 5 nights each fortnight (9/5 arrangement) and in default of agreement from 10am each alternate Friday to 10 am the following Wednesday.

27.X’s time with his Father is suspended from 5pm on Christmas Day to 5pm on Boxing Day in 2027.
28.Commencing Term 1 in 2028, X spend time with his father during school terms;
(a)Each Tuesday from the conclusion of school (or 3pm) to the commencement of school Wednesday or 9am
(b)Each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday

29.In 2028 during school term 1 and 3 holidays, X spend time with his father, for a block of 6 days and 5 nights and in default of agreement from 10am Friday to 6.30pm the following Wednesday.
30.In 2028 during term 2 holidays, X spend time with his father;
(a)For a block of 6 days and 5 nights and in default of agreement from 10am Friday to 6.30pm the following Wednesday; and
(b)an additional 2 days from 10am to 6.30pm and in default of agreement on the last Tuesday and Friday of the holidays.

31.In 2028 and each year thereafter, unless otherwise agreed in writing, during term 4 summer school holidays, X spend time with his father on a week about basis.
32.The approved supervisors for X spending time with his father, where required, are;
(a)Ms P, Mr O, Mr U, Ms V, Mr W, Ms Y, Mr Z, Mr AA, Ms BB, and any other person agreed in writing between the parents.

33.Any person must sign an undertaking that may be filed with the Court (noting once final orders are made, no further documents may be accepted for filing) that they undertake to fulfil the role of supervisor as required under the orders.
34.Supervision requires the supervisor being present at all times and able to see and hear X during the entire time he spends with his father. Substantial attendance requires the approved supervisor to be present “more often than not” or 70-80% of the time and to be able to hear and see X for most of the time during the visit when he is spending time with his father. Occasional attendance requires the approved supervisor to be present during the visit intermittently, periodically, at times, with some breaks but checking in from time to time, perhaps present 20-30% of the time and being able to observe and hear X during the period he is spending with his father.
35.The Father can arrange for more than one approved supervisor to attend when X is spending time with him, to cover the period supervision or attendance is required.
36.The Father must ensure the approved supervisor is made aware of their obligations under the orders.
37.X spending time with his father is suspended;
(a)Each Mother’s Day from 10am if it falls on a weekend X would usually spend with his
(b)Father
(c)From 5pm Christmas Eve (24/12) to 5pm Christmas Day (25 /12) in 2024
(d)From 5pm Christmas Eve to 10am Christmas Day and from 5pm Christmas Day to 5pm
(e)Boxing Day (26/12) in 2025
(f)From 5pm Christmas Eve to 5pm Christmas Day in 2026 and each odd numbered year thereafter
(g)From 5pm Christmas Day to 5pm Boxing Day in 2027 and each even numbered year thereafter.
(h)On Easter Saturday and Sunday in each odd numbered year
(i)On X’s birthday, from 2026 onwards, if it falls on a non-school day where X would otherwise be spending time with his Father, from 1pm to 5pm.

Special Occasions
38.X spend time with his father for Christmas from 2028 onwards;
(a)5pm Christmas Day to 5pm Boxing Day each odd numbered year; and
(b)5pm Christmas Eve to 5pm Christmas Day each even numbered year

39.X spend time with his father on Easter Saturday and Sunday in each even numbered year.
40.For X’s birthday from 2026 onwards, from the conclusion of school to 6.30pm if a school day, and from 1pm to 5pm if a non-school day if X would not already be spending time with his Father in accordance with these orders.

Notifications and Information
41.Each parent will notify the other as soon as possible if X suffers any serious illness or injury whilst in their care, and provide details to the other of any medical or emergency hospital attendance and treatment.
42.The Mother and Father are each authorised and permitted to liaise with any medical or allied health professionals engaged for the care of X, at the health professionals discretion, and to be provided with any information usually provided to parents.
43.The Mother and Father are authorised and permitted, at their expense, to be provided with all usual school information, including reports, and the log in details for the school portal for parents.
44.The Father is authorised and permitted to attend school events such as sports carnivals, plays and presentations which parents are usually invited, on condition he gives notice to the Mother of his intention to attend not less than 7 days beforehand, takes into account any expressed view of the Mother regarding her participation in the event, and does not approach the Mother at the event.
45.Paragraphs 10-16 of the Mother’s case outline minute of proposed orders filed 3/8/2023 and paragraph 5.5 (summer holiday provision) from 2026 onwards is agreed by the ICL.
46.Each parent is restrained from using physical discipline on X.
47.Each parent is restrained from questioning X regarding the exercise of supervision or attendance by the approved supervisors.
48.Within 28 days the Father download the CC Service Communication toolkit and complete all worksheets and activities by 1 February 2025.
49.The Mother continue to engage with her treatment team of Dr L and her GP (or their nominees if they are no longer available) in accordance with their reasonable recommendations.
50.X is to spend time with each parent in accordance with these orders unless otherwise agreed between the parents in writing.

NOTATION
A.The father intends to ensure that X’s sibling J born 2023 be present from time to time during his periods with X.

ANNEXURE C
Independent Children’s Lawyers Final Minute of Proposed Orders
1.The Mother have sole parental responsibility for the child X born 2018 (“X”) save that before making any non urgent major decisions concerning X, the mother shall advise the father in writing 21 days prior of the proposed major decision and allow the father 7 days to respond in writing and thereafter the mother shall within 7 days advise the father in writing of the major decision made.
2.X live with the Mother.
3.Unless otherwise agreed in writing by the mother and father, X spend professionally supervised time with the father on 4 occasions each calendar year as follows:
(a)The last Saturday or Sunday of April;
(b)The last Saturday or Sunday of July;
(c)On the nearest available Saturday or Sunday to X’s Birthday;

(d)On the second Saturday or Sunday in December

4.If visits commence at K Contact Service, X spend time with his father for the maximum supervised time as offered by the service, until the service no longer offers supervised visits.
5.If the father elects to utilize a private child contact supervision service to supervise time, rather than K Contact Service, X spend time with his father for up to 6 hours per supervised visit. The supervised visits will take place on days in accordance with order 3
6.The mother and father, if agreed to in writing, may use non professional supervisors to supervise X’s time with the father.
7.Any person supervising X’s time with the father (other than one engaged from a professional service) are to enter an Undertaking in the usual form that may be filed with the Court (noting once final orders are made, no further documents may be accepted for filing) that they undertake to fulfil the role of supervisor as required under the orders.
8.Supervision requires the supervisor being present at all times and able to see and hear X during the entire time X spends with the father.
9.Professional supervisors are to be provided with a copy of these orders and any Reasons for Judgment of this Court.
10.Non professional supervisors are to be provided with a copy of these orders.
11.The father is at liberty to allow third parties to attend X’s supervised time with the father, subject to any policy or direction of the supervision service or supervisor.
12.The father be at liberty to provide X with cards and presents and take digital images of X when spending time with X.
13.Each parent complete and submit an SCS application form for K Contact Service within 7 days of these orders for the purpose of supervised visits being arranged to occur between X and the father.
14.Each parent comply with any request or requirement by K Contact Service to attend for intake or provide further information as requested by the service, including facilitating X attending at the service for a familiarisation session.
15.If the Father elects to initiate visits through a private supervision service, or once visits are no longer offered at K Contact Service, each parent do all acts and things necessary to forthwith make application to a service nominated by the father pursuant to these orders, and each parent comply with any request or requirement by the service including to attend for intake or provide further information as requested by the service.
16.The Father is responsible for all costs associated with the professional supervised contact services for 2 years from the date of these orders and then each parent is responsible for the costs equally, unless otherwise agreed in writing.
17.In the event X consults a mental health professional the mother shall provide to the mental health professional the Family Report [redacted] dated 21 February 2023, The Report of Dr N dated 2 August 2023, these Orders and any Reasons for Judgment of this Court.

Notifications and Information
18.Each parent will notify the other as soon as possible if X suffers any serious illness or injury whilst in their care and provide details to the other of any medical or emergency hospital attendance and treatment.
19.The Mother and Father are each authorised and permitted to liaise with any medical or allied health professionals engaged for the care of X, at the health professional’s discretion, and to be provided with any information usually provided to parents.
20.The Mother and Father are authorised and permitted, at their expense, to be provided with all usual school information, including reports, and the log in details for the school portal for parents.
21.Each parent their servants and agents are restrained from
(a)questioning X regarding the exercise of supervision or attendance by the approved supervisors.
(b)Raising with X future parenting arrangements
(c)denigrating the other parent or members of their extended family in the presence or hearing of X or from allowing any other person to do so.

22.Within 28 days the Father download the CC Service Communication toolkit and complete all worksheets and activities by 1 November 2024.
23.To aid the mother in implementing these parenting orders the Mother continue to engage with her treatment team of Dr L and her GP (or their nominees if they are no longer available) in accordance with their reasonable recommendations.
24.X is to spend time with each parent in accordance with these orders unless otherwise agreed between the mother and father in writing.

NOTATION
A.No later than 6 months before X commences his secondary education the mother and father shall engage in mediation at a service or organisation nominated by the father at their joint expense in an effort to mediate and reach agreement in regard to the future parenting arrangements for X.

File number(s):	MLC 6573 of 2019
Judgment of:	WILLIAMS J
Date of judgment:	4 September 2024
Catchwords:	FAMILY LAW – PARENTING – Where the child suffered serious injuries when he was an infant that were medically assessed as non-accidental injuries – Both parents deny causing the injuries to the child – Where the father was convicted at first instance of causing injury to the child and later acquitted on appeal – Where the mother fears the child will sustain serious harm in the fathers care – Where the mother asserts the father poses an unacceptable risk of psychological harm to the child – Mother suffers a medical condition typically due to stress – Where the decompensation of the mothers mental health has manifested in physical symptoms which has required hospitalisation and ongoing management by a specialist – Consideration of the weight to be given to the mothers beliefs and the impact on her if the child were to spend supervised or unsupervised time with the father –Re Andrew principles – Finding that the mothers beliefs are genuinely held – Finding that the mothers parental capacity will be discernibly impaired due to her genuinely held belief that the father poses a risk to the child – Sole parental responsibility vested in the mother – Orders made for the child to spend identity time with the father
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 61DAA Family Law Amendment Act 2023 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.05
Cases cited:	A & A (1998) FLC 92-800; [1998] FamCA 25 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bayer & Imhoff [2010] FamCA 532 Blinko & Blinko [2015] FamCAFC 146 Dunst & Dunst [2016] FamCAFC 15 Fitzwater & Fitzwater [2019] FamCAFC 251 Grant & Grant (1994) FLC 92-506 Hollister & Gosselin [2016] FamCA 759 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Keane & Keane [2020] FamCA 99 Mazorski v Albright (2007) Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Re Andrew (1996) FLC 92-692 Sedgley & Sedgley (1995) FLC 92-623 Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	264
Date of hearing:	21-24 August 2023, 25 September 2023, 8-12 April 2024 and 1-2 August 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Mallett KC
Solicitor for the Applicant:	Harwood Andrews Lawyers
Counsel for the Respondent:	Mr Whitchurch
Solicitor for the Respondent:	Duane Portway Family Law
Counsel for the Independent Children's Lawyer:	Mr Allen
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 6573 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BABAYEV Applicant
AND:	MR BABAYEV Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	4 SEPTEMBER 2024

Exhibit Number	Description
M-1	Text messages between the mother and Ms P. Document 20 to mothers’ tender bundle, pages 31-34.
M-2	Text messages between the mother and Mr O. Document 21 to the mothers’ tender bundle, pages 35-42.
M-3	Text messages to Ms W, dated 24 October 2018. Document 1 to the mothers’ tender bundle, page 2.
M-4	Confirmation of booking email for appointment with Dr R, dated 30 October 2018. Document 2 to the mothers’ tender bundle, page 3.
M-5	Emails and letters between the parties. Documents 11-16 of the mothers’ tender bundle, pages 14-25.
M-6	Email from mothers then lawyer to the fathers then lawyer, dated 11 February 2019. Page 4 of the mothers’ tender bundle.
M-7	DFFH report of early 2019 and record of meeting early 2019. Page 442 of the court book.
M-8	SOCIT and Child Protection’s first visit case note, dated late 2018.
M-9	Magistrates Court of Victoria, transcript of proceedings, dated early 2020. Tendered by consent. · Page 6 line 19 – page 7 line 12 · Page 14 line 22 – page 16 line 1 · Page 24 line 6 – line 13
M-10	Letter from Dr S dated 10 July 2024.
M-11	Mothers Final Minute of Orders sought.
F-1	Video 1 and 2 of X produced by the father, dated 29 January 2023.
F-2	Reasons for verdict of Judge Parish, page 353 of the court book.
F-3	Fathers Final Minute of Orders sought.
ICL-1	Final Minute of Orders sought.