Bahl & Bahl - [2021] FedCFamC2F 642

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bahl & Bahl [2021] FedCFamC2F 642

File number: MLC 8055 of 2017

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – Final parenting – live with arrangements – parental responsibility – sexual abuse allegations made and withdrawn – one parent with continuing belief that sexual abuse has occurred – multiple experts do not find risk – long history of parental conflict and litigation – risk that parental relationship with the other parent will not be supported – effect of change of living arrangements on the child – nuts and bolts of time arrangement.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Cases cited: Fox v Percy (2003) CLR 118
Milton & Milton [2021] FamCAFC 64

Division: Division 2 Family Law

Number of paragraphs: 235

Date of last submission: 22 December 2021

Date of hearing: 22, 23, 24 & 26 March 2021
21 May 2021
6 & 13 August 2021
22 December 2021

Place: Melbourne

Counsel for the Applicant: Ms M Smallwood SC

Solicitor for the Applicant: Peter Lynch

Counsel for the Respondent: Mr A Barbayannis

Solicitor for the Respondent: Farrar Gesini Dunn

Counsel for the Independent Children's Lawyer: Ms P Villella

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

MLC 8055 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BAHL

Applicant

AND:
MS BAHL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT:
Parental responsibility:
1.The Applicant Father ('the Father') have sole parental responsibility for all health and education issues relating to the child X born in 2017 ('the child') and when the Father is required to make a decision of a long-term nature, except for in an emergency, he shall:
(a)Inform the Respondent Mother ('the Mother') in a timely manner of the issue and of his proposed decision;
(b)Consider any input from the Mother provided in a timely manner in relation to the proposed decision;
(c)Make his decision in a timely manner; and
(d)Advise the Mother of that decision, with the Father to have the ultimate decision.

2.The parents have equal shared parental responsibility for long term decisions that are not health or education issues.

Live with and spend time arrangements:
3.The child live with the Father.
4.The child live with the Mother 5 nights a fortnight as follows:
(a)Week 1 (commencing 03/01/2022) from conclusion of kindergarten/childcare/school on Monday until commencement of kindergarten/childcare/school on the following Tuesday and each alternate week thereafter at those times; and
(b)Week 2 (commencing 24/12/2021) from the conclusion of kindergarten/childcare/school on the Friday until the commencement of kindergarten/childcare/school on the Tuesday and each alternate week thereafter at those times; and
(c)The child shall remain with the Mother overnight on Wednesday 22 December 2021 and be collected by the Father from B Childcare on Thursday 23 December 2021 and then the Mother’s time pursuant to those orders commence on Christmas Eve 2021 at 4.00pm at McDonalds C Shopping Centre in accordance with paragraphs 10 and 17 of these orders.

5.Upon the child commencing primary school in 2023, the child spend:
(a)Half the term school holidays with each parent with changeover to be at 5.00pm on the middle Saturday and failing agreement in writing, text or email with the Father for the first half in odd years and the second half in even years.
(b)The long Summer holidays on a week about basis with each parent and a week shall be calculated as 7 consecutive days and the first week shall commence on the last day of school which shall be counted as a day with the Mother’s time to commence on the last day of school in 2023.
(c)In the event there are extra days in the long summer holidays then they shall be shared equally between the parents save that the child shall always be returned to the Father one clear day (2 nights) prior to her return to school at the commencement of term 1 and that clear day shall be counted as a day in the Father's half.

6.The time spent defined in Order 4 shall be suspended during the school holidays once the child commences school in 2023 and shall resume at the completion of each school holiday as if the holiday had not occurred.
7.Commencing December 2024 the long Summer holidays be shared equally between the parents by agreement and in the absence of agreement :
(a)In odd numbered years the Mother shall have the first half of the holiday period commencing after school on the last day of school which shall be counted as a day and the Father the second half.
(b)In even numbered years the Father shall have the first half of the holiday period commending after school on the last day of school which shall be counted as a day and the mother the second half.
(c)The child shall always be returned to the father one clear day (2 nights) prior to her return to school at the commencement of term 1 and that clear day shall be counted as a day in the Father's half.
(d)Each parent shall facilitate the child to have a video/FaceTime call with the other parent between 5.00pm and 5.30pm each Tuesday during the long Summer holiday period.

8.That on the child's birthday she shall spend time with the parent she is not in the care of at the time as follows:
(a)When the birthday falls on a weekday from the conclusion of kindergarten/childcare/school or 3.00pm until 6.30pm.
(b)When the birthday falls on a weekend, from the conclusion of kindergarten/childcare/school or 4pm on the day preceding the birthday to 12 noon on the birthday.

9.On either of the parents birthday, the child spend time with that parent they are not in the care of at the time as follows:
(a)When the birthday falls on a weekday from the conclusion of kindergarten/childcare/school or 3pm until 6.30pm.
(b)When the birthday falls on a weekend, from 9am on the day of the birthday until the commencement of kindergarten/childcare/school or 9am on the following day.

10.That the child spend Christmas with the Mother from 4pm Christmas Eve until 4.00pm Christmas Day in 2021 and every second year thereafter and from 4.00pm Christmas Day until 4.00pm Boxing Day in 2022 and every second year thereafter.
11.That the child spend Christmas with the Father from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2022 and every second year thereafter and from 4.00pm on Christmas Day to 4.00pm Boxing Day in 2021 and every second year thereafter.
12.That in the event the child is not with the Mother on Mother's Day, the mother shall have time with the child from 6pm the day preceding Mother's Day until commencement of kindergarten/school on the Monday or 9.30am on the Monday if it not be a kindergarten/school day.
13.That in the event the child is not with the father on Father's Day, the Father shall have time with the child from 6pm the day preceding Father's Day until commencement of kindergarten/school on the Monday or 9.30am on the Monday if it not be a kindergarten/school day.
14.That any order otherwise providing for the care of the child during the times specified in order 8, 9, 10, 11, 12 and 13 herein shall be suspended during the time therein specified to ensure compliance.

Schooling and Medical
15.The parents do all acts and things to cause the child to attend D School and, save in emergency, for the child to attend E Medical Centre (F Street, Suburb E) for medical treatment and each keep the other promptly informed of any medical attendance or treatment.

Childcare
16.The child to attend Suburb E Kindergarten on Mondays, Tuesdays and Fridays and B Childcare Early Education, Suburb G on Wednesdays and Thursdays.

Changeovers
17.Changeovers shall be at the kindergarten/childcare/school on days when the child attends and on weekends, pupil free days, public holidays, childcare holidays and school holidays (once the child commences school) where possible and in McDonald's C Shopping Centre should a parent to parent changeover occur.

Various
18.That each parent permit the child to continue to attend Dr H as recommended by Dr H and each parent be at liberty to liaise and discuss X's treatment and mental health with Dr H with the costs to be shared equally between the parties.
19.The Mother and Father shall authorise and direct the child's childcare and school to forward copies of reports, notices, newsletters, photographs and the like to each party at their expense.
20.The Mother and Father be at liberty to:
(a)Communicate with the child's childcare and school in relation to the child's progress and behaviour;
(b)Attend all childcare, school and extra-curricular events which parents are ordinarily invited to attend including but not limited to parent/teacher interviews, competitions, carnivals, concerts and the like.

21.Each party shall keep the other advised of any medical or health issues or emergencies concerning the child and shall authorise and direct any medical or allied health practitioner the child attends upon to discuss the child's condition with, and forward copies of reports and the like, to the other.
22.If the child is prescribed or given medication or any treatment which is required to continue while in the care of the other party, each party shall provide the other with the medication and information regarding such medication or treatment.
23.The Mother and Father shall communicate regarding parenting matters via text message or email except in the case of an emergency where contact will be made by phone as soon as practicable.
24.The Mother and Father shall notify one another of their current residential address within 7 days, and shall notify one another of any change in their residential address no less than 7 days before the change including advising the other party of the new address.
25.The Mother and Father shall notify one another of their current residential address within 7 days, and shall notify one another of any change in their residential address no less than 7 days before the change including advising the other party of the new address.
26.If they have not done so already, the Mother and Father shall participate in the Parenting Orders Program in their respective local areas as soon as possible and provide evidence of same to the other party.
27.The Mother and Father shall each engage with a cognitive behavioural therapist of their own choosing and undertake the therapy as recommended by Mr J in his report and provide a copy of Mr J’s report to his or her therapist and in addition the Father shall continue to attend upon his current psychologist and psychiatrist as directed.
28.The Mother and Father be and are hereby restrained from:
(a)Harassing or intimidating the other in the presence or hearing of the child or permitting any other person to do so;
(b)Denigrating the other in the presence or hearing of the child or permitting any other person to do so;
(c)Discussing these proceedings in the presence or hearing of the child or permitting any other person to do so;
(d)Denigrating the other to the child's educators and medical practitioners.

29.The Parties shall provide a copy of these Orders to the child's childcare and child psychologist and the parties be at liberty to provide a copy of these Orders to any school at which the child attends in the future.
30.The appointment of the Independent Children's Lawyer be discharged

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bahl & Bahl has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The applicant father, Mr Bahl (‘the Father’) is aged 42 and is a professional. The respondent mother, Ms Bahl (‘the Mother’) is aged 38 and is a professional. The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
The question I must determine is whether the child X (‘the child’) who is aged 4, and who will turn 5 in July 2022, should during school term live more with her Mother or more with her Father. In answering that question I must apply Part VII of the Family Law Act 1975 (Cth) (‘the Act’) including to determine which parent is more likely to support the child’s relationship with the other parent and the likely environment of which home is most likely to advance the child’s welfare. This includes the question of whether the Mother has a history of not supporting the child’s relationship with her other parent without good reason and, if she does, the consequences of that for the future. Given the child has lived mostly with her Mother the effect for the child of a significant change in living arrangements looms large. Each parent asserts that they will support the child’s relationship with the other and that they had good reason for their manner of parenting the child to this point.
The parties began their relationship in 2011, married in 2013 and separated on a final basis in January 2017. The child was born in 2017, some six months after the parties separated. The Mother moved to Sydney from Melbourne in 2017, just prior to the birth of the child, without advising the Father. The Father was notified by the Mother a few days after the birth of the child and that is when he learned the Mother had moved to Sydney and that the baby had been born.
SUMMARY OF DETERMINATION
I have determined that the child should live with the Father and spend substantial and significant time with her Mother over 5 nights each fortnight in school term and for one half of the school holidays from when the child starts school. Until the child starts school I have determined that, subject to an obligation to consult the Mother, the Father should have sole parental responsibility for the major long term issues of health and education: that is the Father should have the final word where not agreed. Otherwise the parties should have equal shared parental responsibility for major long term issues. I will make orders in the terms as sought in the orders of the ICL and with the Mother’s weekend to continue in the current rotation. What follows are the reasons why I have made those decisions. I will provide my reasons and draft orders with a limited opportunity for the parties to assist with the formulation of those orders.
PROCEDURAL HISTORY
Proceedings were initiated by the Father on 10 August 2017, when the child was one month old. The Father sought orders that the Mother and the child return to Melbourne to live. The matter first came before the court on 25 September 2017 where interim consent orders were made for the Father to spend supervised time with the child in Sydney. Further orders of that day included the appointment of the ICL, listing the matter for a section 11F child dispute conference on 17 November 2017 and adjourning the matter for an interim contested hearing on 23 November 2017.
The matter returned to court on 23 November 2017 following the preparation of the child dispute conference memorandum. Consent orders were made for the parties to attend upon Dr K (‘Dr K’) for the purposes of psychiatric assessment and family report. The matter was also set down for final hearing on 24 May 2018.
Financial matters resolved by consent and final orders were made on 20 August 2018. The parenting matters returned to court in a duty list on 3 May 2019 and on that day a further section 11F conference was ordered for 5 July 2019. The matter then returned to court on 20 August 2019 where interim consent orders were made that provided for the parents to have equal shared parental responsibility and for the child to live with the Father at certain times.
On 18 March 2020, the matter was set down for a three day trial on a date to be advised.
The matter first came before me on 5 October 2020 when I conducted a call over of over 60 family law matters that were awaiting final hearings following the retirement of the Judge. I listed the matter for a three day final hearing on Monday 22 March 2021 with an order for the ICL to nominate a family report writer for an updated family report with the parents to each meet one half of the costs. Despite that the matter returned for emergency contested interim hearings on two occasions, 15 December 2020 and 8 February 2021.
THE FINAL HEARING
The final hearing well exceeded its three day estimate and proceeded over seven days. It was heard as a face to face hearing on 22, 23, 24 and 26 March 2021. The matter did not finish and was adjourned for a further one day of hearing on 21 May 2021 which was also held in person in the court room. The matter did not conclude and a further day was fixed for hearing. The parties then sought a later date to resume to enable a report from Dr H (‘Dr H’) (the therapist currently seeing the child) to be available. The matter was heard for a further day on 6 August 2021. On this day a report was before the court from Dr H. The matter resumed and concluded on 13 August 2021. Dr H was cross examined 13 August 2021. These final two days of hearing were conducted via Microsoft Teams due to the COVID-19 pandemic.
MATERIAL RELIED UPON
The Father’s list of material relied upon every one of the 18 affidavit’s filed on his behalf in the proceedings but ultimately, after his senior counsel “endeavoured to gain control of the material” in opening, relied upon:
(a)Amended Initiating Application filed 9 March 2021;
(b)Affidavit of the Father filed 10 March 2021;
(c)Affidavit of the Father filed 2 February 2021;
(d)Affidavit of Mr L (the Father’s sister) filed 2 February 2021;
(e)Affidavit of the Father filed 13 December 2020;
(f)Affidavit of the Father filed 11 March 2020, at only 44, 45 and 47;
(g)Affidavit of the Father filed 6 December 2019, at only paragraphs 52-63.;
(h)Affidavit of Dr K filed 15 May 2018;
(i)Affidavit of the Father filed 3 November 2017, at only paragraphs 24, 50 and 54-60;
(j)Affidavit of the Father filed 25 September 2017, at only paragraphs 7 & 19; and
(k)Affidavit of the Father filed 10 August 2017, at only paragraphs 9, 19, 20 and 21.

The Mother ultimately relied upon:
(a)The Mother’s Amended Minute of Proposed Final Orders filed 16 June 2021 (the 5/9 Minute) that replaced the Minute of Proposed Orders filed 19 March 2021 (the 4/10 Minute) that replaced the Minute of Proposed Orders filed 5 March 2021 (the “no time” Minute);
(b)Mother’s affidavit affirmed and filed on 19 March 2021;
(c)Mother’s affidavit (primary) affirmed on 8 March 2021 and filed on 9 March 2021;
(d)Mother’s affidavit affirmed and filed on 4 February 2021;
(e)Mother’s affidavit affirmed and filed on 19 November 2020 (paragraph 13 only);
(f)Mother’s affidavit affirmed on 15 January 2020 and filed on 16 January 2020;
(g)Mother’s affidavit affirmed on 30 April 2019 and filed on 3 May 2019;
(h)Mother’s affidavit affirmed and filed on 20 September 2017 (paragraphs 1 – 144);
(i)Affidavit of Ms M filed 4 February 2021;
(j)Affidavit of Ms M filed 8 March 2021;
I understood the ICL relied upon:
(a)The Family Report of Mr N (‘Mr N’), the second family consultant, dated 17 March 2021 (‘the 2021 Family Report’).
(b)The affidavit of Dr K (‘Dr K’), psychiatrist, filed 15 May 2018 (‘the 2018 Family Report’).
(c)The affidavit of Mr J (‘Mr J’), psychologist, concerning the Father filed 16 March 2021, (‘the Father’s Mr J Report’).
(d)The affidavit of Mr J, psychologist, concerning the Mother filed 16 March 2021, (‘the Mother’s Mr J Report’).
(e)The affidavit of Dr H, clinical psychologist, filed 2 August 2021 (‘Dr H’s Report’).
(f)The letter from the Department of Health and Human Services (‘DHHS’) (as it was then) in response to the section 69ZW order to the court undated but received 18 January 2021.
(g)Child Inclusive Section 11F Memorandums dated 17 Nov 2017 (the First 11F) and 5 July 2019 (the Second 11F), both contained in ICL 5.
Exhibits tendered during the course of the proceedings were as follows:

Exhibit No. Description

22 March 2021

F1 Audio recording of Mother and child (said to have occurred on 19 February 2021)

F2 Mother’s chronology of recordings (note – exhibit WG2 – 8 March 2021 affidavit)

F3 Three video recordings (videos with title ending #655, #854 and #045)

M1 Bundle of four subpoena search forms of 2019

23 March 2021

C1 Subpoena to Doctor at Suburb B Medical Centre (document 14 on the court file)

M2 Pages 19 and 20 (of 22) of letter dated 20 May 2017 to Suburb B Medical Clinic

M2A Pages 21 and 22 (of 22) of letter dated 20 May 2017 to Suburb B Medical Clinic

M2B Scrunched up copy of the document dated 20 May 2017

C2 Subpoena to Proper Officer at Suburb B Medical Centre

M3 Page 14 (of 22) read to the Father during cross-examination

M4 Page 15 (of 22) read to the Father during cross-examination

M5 Page 34 and 35 of material produced by O Hospital subpoena

M6 Pages 52-56 (of 157) of the material produced by P Contact Centre subpoena

M7 Pages 61-71 (of 157) of the material produced by P Contact Centre subpoena

M8 Pages 124-127 (of 157) of the material produced by P Contact Centre subpoena

M9 Annexure E, G and N of Mother’s affidavit of 30 April 2019

M10 Text message between Mother and Father dated 19 March 2021

M11 Text message between Mother and Father dated 14 March 2021

M12 Text message between Mother and Father dated 5 March 2021

M13 Text message between Mother and Father dated 30 August 2020

24 March 2021

C3 Court Orders of 24 May 2018 and 20 August 2019

ICL1 Aide memoir of largely mostly agreed transcript of conversation between the Mother and child (disagreements marked in red).

ICL2 Bundle of medical documents

M14 Letter from Kenna Teasdale (agents) dated 13 October 2017 who inspected file on behalf of Mother’s solicitor at the time.

M15 Bundle of documents of correspondence dated February 2021

F4 Email from Father to Mother dated 23 March 2020 (Mother says this email went into her spam folder)

26 March 2021

F5 Eczema photograph and email from Mother to Doctor dated 21 June 2018

F6 Statutory Declaration of Q dated 25 February 2021

F7 Bundle of documents produced by R Health (28 pages)

6 August 2021

ICL3 Email from Counsel for the ICL (Ms Villella) dated 16 June 2021 attaching transcripts (with descriptions)

ICL4 Transcript (without descriptions)

13 August 2021

ICL5
Section 11F Child Inclusive Conference Memorandums

(see transcript page 524)

F8 Subpoena search forms

F9 Father’s email of 13 August 2021 with his home address (not to be disclosed)

30 August 2021

M16 Minute of final orders sought by the Mother

F10 Minute of final orders sought by the Father

ICL6 ICL’s marked up minute of final orders sought

22 December 2021

C4 Email chain between Associate and parent’s solicitors regarding whose week it is

C5 Draft orders provided by the court

F11 Father’s marked up (in red) version of draft orders provided in the afternoon of 22 December 2021
THE FATHER’S CASE

The Father presented as, and is, an earnest, concerned and caring parent. As a witness as was determined to state and restate and restate his fairly self-important and self-righteous view of himself and justification of his actions whether or not that related to the question he was asked. Despite frequent reminders of the importance of answering the question asked, he preferred to, and too often did, avoid answering a question because he felt compelled to make sure he got his point across instead. On some, not all, occasions this was where he perceived the answer would not assist his case. His manner and demeanour in the witness box was consistent with some of the observations of him by Mr J which I address later.
His case, in substance, was that he had a close and appropriate relationship with the child and was a caring and devoted parent. Further, his relationship with the child had come about by this constant efforts to be involved in the child’s life and despite implacable opposition since birth and false statements about him and the child, by the Mother who took every opportunity to prevent a relationship between the Father and daughter developing. Further, his case was that when that relationship had developed the Mother took every opportunity to interfere with or hinder that relationship. The Father’s case was that the Mother, by moving interstate, by withholding registration of his parentage, by making supervision of his time more difficult, by not complying with orders and by unnecessary applications and imposition of supervision of his time has made life for himself and the child very difficult and that if the child remains living with the Mother those interruptions will occur again. Further, he says, the Mother maintains an irrational belief that he has sexually abused the child and that there is a substantial risk that the child will come to falsely believe she has been: with all the psychological damage to her that would entail.
The Father is intelligent and highly educated. He has often applied his intelligence and attention to detail to overly long and combative communications with those involved in the child’s life (see exhibits M6 & M7, communication with P Contact Centre supervision service in April 2018 and communication with current child care centre addressed later).
The Father regarded the recorded questioning (addressed later) of the child by the Mother in February 2021 (that the Mother regarded as demonstrating sexual abuse by the Father) and the medical examinations immediately thereafter as child abuse.
Each parent alleges the other, and not themselves, has been as some point in the past been addicted to pornography.
By the end of the case and following Dr H’s oral evidence the Father’s primary case shifted from the child living with him and having only limited time with her Mother (and in the alternative to living with him and 4 nights each fortnight with the Mother) to seeking the child live with him in a 4/10 (the 10 with him) each fortnight and half school holidays regime. In cross-examination of Dr H whether it was to be 4/10 or 5/9 was not significant. Dr H’s report and oral evidence was significant and is referred to later in these reasons.
Dr L (the Father’s sister)
The Father’s sister Dr L (‘Dr L’), a psychiatrist, was a witness relied upon by the Father. Dr L had filed an affidavit in support on 2 February 2021. She had, she said, observed a close and safe relationship between the Father and the child. For a short time following sexual abuse allegations raised late in the case she was the supervisor of the child’s time with her father. She was an honest, but aligned to her brother, witness and I accept her evidence.
THE MOTHER’S CASE
The Mother presented as, and she is, an anxious but kind and caring parent devoted to her child. But she is a parent who cannot help but see the Father’s interaction with the child as a catastrophe and who cannot genuinely see or feel that there is any benefit in the child’s relationship with the other parent. She feels that relationship is harmful to the child despite stating that she does see benefit in his relationship with the child. Her feelings about the Father heavily influences her perception of things the child has or may have said to her.
There is a naïve aspect to the Mother’s personality and evidence. She presented as not appreciating the significance for the child, or for the parental relationship or for her own case, of the serious allegations including of sexual abuse of the child she has made, then passed up or moved on from (but never retracted) and then moved back to in a vague form. I find that she does not appreciate the significance for the child, or herself and the Father as parents, of those events. The Mother’s demeanour and manner in the witness box are consistent some of the observations of Mr J which are addressed later in these reasons.
The Mother alleges being subjected to family violence of verbal abuse and physical abuse and at times being pressured, and at times forced, into sexual activity with the Father. The Father denies the allegations.
The relationship between the parents and their perception of each other has an overlay from the sexual relationship of the parties and the retrospective interpretation of those sexual activities. The Mother characterises some of those as abusive and forced or pressured and the Father characterises those as, at times, experimental but always consensual.
The sharp pivots in the Mother’s case must be had regard to. The Mother had previously relied upon the recorded questioning of the child by her on 19 February 2021 (that is in the lead up to the final hearing) as demonstrating sexual abuse by the Father. After filing her trial affidavit and the release of the psychological assessments of Mr J and the 2021 Family Report (shortly before the first day of the final hearing) the Mother’s case shifted dramatically. It moved to saying she accepted that all the expert opinions said that the Father was not a risk of sexual abuse to the child, and now with the protection of Dr H’s ongoing therapy (commenced by court order in February 2021 and ongoing), there should be a 4/10 fortnightly regime with half school holidays (that is the Father having 4 nights per fortnight). Her case later moved a small degree to a 5/9 (9 with her) plus half school holidays from when attending school proposal.
In the end the Mother’s case moved to confirming how well the child was doing in the current shared (4/10) arrangement, asserting that she was committed to the child maintaining a relationship with the Father and asserting there was no satisfactory reason to change the existing arrangements. Her case was that the Mother’s previous negative attitude to the Father was justified by the relationship where he had pressured her in their sexual relationship, her knowledge that he had in fact been “addicted” to pornography, the fragility of his mental health and what she experienced as the obsessive and uncontrolled nature of his sexuality.
The Mother’s case, as pursued from opening to closing at final hearing, did not assert that there was any risk of sexual, or other abuse, to the child in the Father’s care. But the Mother’s evidence in cross examination included that she still believed there had been some sort of sexual abuse: but the time with the Father was now safe enough because of the therapy with Dr H. From the Friday afternoon before the final hearing starting on the following Monday, until the conclusion of the final hearing, the Father was not accused of sexual abuse of the child nor was it asserted that there had been sexual abuse of the child.
Ms M (the maternal grandmother)
Ms M was an honest witness but aligned with her daughter. She has lived with her daughter and the child in Sydney and Melbourne since separation. She was careful and responsive to questioning in her evidence. Prior to her cross examination it was considered, on the Father’s case, that she may have had a significant role in the retrospective interpretation of the parties’ sexual relationship by herself having a narrow and judgmental attitude to sexuality. This proved not to be the case.
However the child’s grandmother shares her daughter’s view of the Father as a parent and is supportive of the Mother’s attitude to the child’s relationship with the Father. Like the Mother she believes, because of what the Mother has told her, that the child has been sexually abused by the Father. However I find that she is a caring and loving grandmother who assists the Mother in her care of the child and who is unlikely to undermine any court orders made and who will continue to support and care for the Mother and the child.
THE ICL’S CASE
The ICL was critical of both parents. Initially the ICL supported the second family consultant’s view that a shared care arrangement with the child living mostly with the Mother was preferable because of the likely distress to the child of not living predominately with the parent to whom she had a primary attachment. Ultimately the ICL supported the change of residence to a shared care arrangement with the child living more with the Father than the Mother: that is the same 4/10 each fortnight arrangement as sought by the Father.
STANDARD OF PROOF
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(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.
It is necessary to look carefully at the events that unfolded by reference to contemporaneous records of communications. For example, the detail of the 18 March 2020 orders and the previous orders referred to therein rather than attempt to determine disputes upon only general impressions or credit findings (see: Fox v Percy (2003) CLR 118).
The competing applications and subject matter relates to the welfare of a young child. An allegation of sexual abuse and of rape within marriage are matters of the utmost gravity and I take those matters into account in considering what findings can and should be made on the evidence.
SOME SIGNIFICANT EVENTS AND CONTROVERSIES
To understand the dispute between the parents it is necessary to look at some of the significant events and controversies. Not all controversies are necessary to be determined or able to be determined on the balance of probabilities.
During the hearing I requested, not ordered, the parties prepare a chronology of significant alleged and agreed events. The request was acknowledged and the consensus seemed to be that such a thing was a good idea: but no such document ever emerged.
The parents commenced their relationship in 2011 and were married in 2013. After marriage the parents lived in Western Australia for a time and then the Father remained there when the Mother returned to Melbourne for work and later the Father also returned to live in Melbourne with the Mother.
Allegations of forced sex
The Mother’s evidence was that she was coerced into beachside sexual activities from 2013.
Some light is shed on the state of the parents relationship by the Facebook communication from the Mother to the Father after a trip to Queensland together on about 15 March 2015 (see paragraph 57 of the Father’s affidavit filed 3 November 2017):
“Thank you for bringing so much happiness in to my life… you were that one thing I was always missing…”
In August 2015 the parties stayed at a beach resort overseas that involved nudity. The Mother complains that the Father forced her to have sex at this resort. The Father asserts the sexual activity was consensual.
On 5 February 2016 the Mother replied to an email about the beach with:
“…We can go to beach afternoon Friday or Saturday (smiley face)”
This email is 3 years after the time the Mother says the Father commenced to coerce her into beachside sexual activity and 5 months after the first holiday at the overseas beach resort.
In March 2015 the Mother commenced consulting a therapist who was a qualified social worker with a graduate diploma in family dispute resolution and whose letter head asserted she was a psychotherapist and who worked from the practice called “S Psychology” (annexure ‘E’ to Mother’s filed 20 September 2017 affidavit). She attended three individual sessions in 2015, three joint sessions with the Father in 2016 and three individual sessions in 2017. The sexual allegations (reported as at 16 Sep 2017) included that the Mother, “feels mentally exhausted in her relationship with her husband because of his sexual expectations” and “took her (overseas) with sexual expectations she could not fulfil…” and “she felt mentally and sexually abused by her husband’s unrealistic sexual desires and further felt controlled by his sexual demands”. But allegations of being “forced” or raped are not included in the therapist’s report.
In July 2016 the parties again stayed at the same overseas beach resort. The Mother asserts that the Father again forced her to have sex at this resort and the Father asserts that the sexual activity was consensual. Shortly after this holiday (before the child was born) the Mother alleges that the Father said to her that he wanted to raise their children at such resorts. The Father’s capacity to coerce her in sexual activity and this statement, the Mother said, later caused her to be concerned, from soon after the child’s birth, that the Father would sexually abuse the child.
Mr J interviewed the Mother for the purpose of a psychological assessment for these proceedings on 17 February 2021. In regard to these events Mr J (who was not required for cross examination) reports a different, but not entirely inconsistent, account from the Mother as to what she told Dr K and asserted in her affidavits:
17.Ms Bahl acknowledged at assessment that her and the applicant father reached an agreement whereby they explore matters of sexuality prior to commencing a family. Ms Bahl reported that she was not as curious as the applicant father in this respect, but agreed to explore sexual experiences with him. Ms Bahl reported that she viewed this as a temporary aspect of their relationship, and that she looked forward to starting a family with the applicant father.
18.Ms Bahl acknowledged that the applicant father sought out attending nudist environments, having sex in the presence of others, and attending adult clubs and swingers’ events. Ms Bahl reported that despite agreeing to share such experiences with the father, she became increasingly uncomfortable. Ms Bahl reported often acquiescing to the applicant father, as he would become irritated and upset if she did not cooperate. Ms Bahl reported that the applicant father would force her in to sexual activity if she maintained reluctance.

In cross examination the Mother denied making some of these statements. I accept that she did report to Mr J as he states in his report. In his first email to the Mother after the child’s birth the Father sent an appalling email (referred to later in these reasons) to the Mother that included the statements:
Yes you can blame me of my sexual fantasies and tendencies and putting pressure on you. If not with my wife who am I going to share my sexual fantasies? I’m just a basic man who went after the sensory desires and yes I understand I have done some bad karma in doing so but I tell you I am not a rotten to the core like you.
The reference to “putting pressure on you” is consistent with the Mother’s case. But I cannot find this is an admission of using force or rape. The Mother relied upon the sentence and parts following, “Yes you can blame me of my sexual fantasies and tendencies and putting pressure on you”, as an admission of, or at least as corroborating, the Mother’s allegations of an abusive and coercive sexual relationship.
I cannot find on the balance of probabilities, that the Mother’s account to this court in affidavit and to Dr K and Mr N is the full and frank story. I find that the Father, at least on some occasions, took the lead in suggesting sexual activity and that at least for some time the activity was consensual but that at least at times the Father did pressure the Mother into some, what traditional attitudes might regard as, unusual activity. I am unable to find on the balance of probability whether or not that pressure was actually coercive, forced and abusive or became at some point insistent and inconsiderate. I am unable to accept either parties’ entire account of the sexual events on the balance of probabilities.
Father’s mental health deteriorated at end of relationship
The Father’s mental health deteriorated in late 2016 and in February 2017 the Father was admitted for a short time to the mental health unit at O Hospital. He asserted to Dr K when interviewed for the 2018 Family Report that this was due to the Mother’s critical attitude and tension in their relationship. I do not accept, on the balance of probabilities, that the Mother caused his mental health to deteriorate.
The hard to read handwritten notes of the hospital dated 17 February 2017 included the entry, “sexual fantasy for dad... attracted to him… undressing… culturally appropriate relationship with dad” (exhibit M5). These notes, when produced years later on subpoena in these proceedings, corroborated in the Mother’s mind, her belief in the Father’s sexual deviancy and then risk of abuse of the child. No expert evidence was led as to the meaning of these statements. They were made in the context of a detailed history of the Father’s childhood and the questions asked (that these notes record answers to) and the therapy or treatment underway at that time are not in evidence. These handwritten notes were at one point in the trial missing from the subpoenaed documents and the Mother alleged the Father had stolen them to hide this adverse evidence. The allegation was withdrawn before the end of the final hearing. The “missing” documents, being only copies, were again obtained. I do not make any finding about whether or not the recorded observations in the handwritten notes inform any aspect of risk to the child in the Father’s care.
The subpoenaed notes of the Father’s psychiatric treatment in (exhibit M3, page 14 of 22) 2017 include as part of patient history:
Had a history of relying on use of pornography to self soothe which he reported became problematic as he found that he had become preoccupied with seeking out material, found it difficult to cut back, used it as a means of self-serving when distressed, would find it began to interfere with his work. This appeared to have persisted over a 12 month period and was associated with distress and shame which further impacted mood…
As at 20 May 2017 the Father had consulted Dr T (‘Dr T’), a psychologist, over 6 sessions. That therapist’s report to the referring GP, dated 20 May 2017 (exhibit M2), recorded that the therapy was reported to be generally progressing well. The report was before the Court because of a subpoena. It was in the litigation process that the Mother learned of the contents, which included:
…At the time of initial contact (the Father) met criteria for severe depression with somatic symptoms. The symptoms appear to have emerged and been maintained in the background of marital discord and the breakdown of communication between him and his wife after they began to live together. With the emergence of depressive symptoms he reported significant difficulties in attending to tasks, completing work and engaging in ruminations with regards to the relationship with his wife and regarding his sexuality and fear of falling back into pornographic addiction…
…He has also been on regular medication and engaging regularly with his psychiatrist… (the Father) reports a significant improvement in his depressive symptoms, increased ability to challenge dysfunctional thinking, greater confidence in himself, increased self-worth, decrease in ruminations and improved psychosocial and occupational functioning. He continues to be separated from his wife at this time and is using the therapy space to explore his thoughts with regards to reworking the relationship for the sake of the child to be born…
(emphasis added)
The reference to pornographic addiction and the Father’s denial of such addiction was, when read years later, to corroborate in the Mother’s mind, what she saw as the Father’s sexual deviancy, and for her, combined with other circumstances, demonstrated that the child was at risk of sexual abuse. In cross examination the Father’s evidence was that his concern about falling back into pornographic addiction as stated to the therapist was, in substance, that he had never been addicted to pornography and he only made the statement to his therapist because he had been depressed and a symptom of his depression was the catastrophizing and exaggeration of his behaviour. I do not accept that evidence and I find that at some point in the past the Father’s use of pornography was such that he regarded himself as having been addicted to pornography. The Father’s attempt at revision of what he had told therapists was consistent with his demeanour in oral evidence and personality. That is the Father frequently seeks to deny or qualify any event or aspect of his personality that he perceives as critical of himself.
The Father’s affidavit evidence included assertions that the Mother had stated to him that prior to their relationship she had had an interest in and problem with use of pornography. Neither party pursued this issue in cross examination and I am unable to make any finding about it.
The child’s birth in 2017 and the nature of communication then
The child was born in 2017 in Sydney shortly after the Mother moved there with her Mother. The child was breastfed. The Mother advised the Father of her birth a few days later. On 16 July 2017 the Mother emailed the Father as follows:
Dear Mr Bahl,
I had the baby. She is healthy and doing well. We are settled in Sydney.
At least 6 weeks are needed for her to establish a healthy breastfeeding routine and get her immunisation up-to-date.
You can have visitation after 6 weeks.
Regards Ms Bahl
That evening the Father responded to the news of the birth and the move to Sydney with a very long, complaining, vitriolic and self-righteous email to the Mother that contained insults and a revisiting of events during the marriage. He cc’d the email to a number of relatives of the Mother. Relevant parts included:
Hi Ms Bahl,
What do you mean you are settled in Sydney? … Please send me your address as I would like to see our baby as soon as I can. And also if you could please send a photo of our baby that would be much appreciated.
Can you please send me the time and the location the baby was born as a matter of urgency? I would like to organise her birth chart (horoscope) and to find out the letters that are good for her name. Please understand I also have equal rights in making decisions regarding our baby and if I am deprived of this I am not hesitant to take the necessary steps. … I earnestly request you to return to Melbourne at the earliest.
By the way has your mother been unable to look after you? Is that why you have moved to Sydney? When I fell sick and got kicked out of your parents’ house your mother told my sister to take care of me and that she will look after you. Has she been unable to keep to her word?
… People like your (mother)… don't even have the basic human qualities like empathy to another human being… your father has told me … in detail how vicious they can be…
…You take my word I will make sure that our child will not be brain washed by your mother's cult and I will ensure she will grow to be a rational thinker with empathy to others.
Finally you, what a joke… You operate on hatred, envy and jealousy... How much effort you might have put in to secretively organise your move to Sydney? How much hatred you must have for me?...
I am so glad I am over the darkest period of my life that I spent with you. Yes you can blame me of my sexual fantasies and tendencies, and putting pressure on you. If not with my wife who am I going to share my sexual fantasies? I am just a basic lay man who went after the sensory desires and yes I understand I have done some bad karma in doing so but I tell you I am not a rotten to the core like you. I am not capable of operating on such hatred and anger.
I should have understood you the day you tore up and ripped the pages in our wedding album that my parents and sister were on, this was only few months into the marriage. I should have understood at that time how much hate and rage you can muster and distant myself from you. I shouldn’t have needed to go through the hell of last 4 years and let you ruin my mental health to a level that I needed to be admitted to a mental health hospital. Yes I am angry now, but I will not hold on to this. This will pass as well. As mentioned I request you to
…
2.Return to Melbourne at the earliest so I can visit our baby more often and also help out in raising her with love and kindness from both parents
…
… Please don’t think you can dictate when I will be able to see the baby. I am totally disgusted by the fact you have without any consultation with me have decided to move to Sydney depriving me the opportunity to see our baby at birth and then visit her regularly and be part of raising her. I am even more disgusted by the fact that people I genuinely thought to be morally superior have helped you in this vicious act and hence I have CC them into this email… I await your timely response so I can see the baby without further delay and do remember
I take into account the submission of senior counsel for the Father that in substance the Father was saying, ‘what do you mean you have settled in Sydney?’ That was the first he knew that she was in Sydney (see page 748 of the Transcript). Nonetheless the nature of this communication speaks for itself. And so, with this appalling email, the doomed discussions between the parents about their baby’s welfare started. The Father was cross examined about this email and demonstrated no regret or insight into the dynamics and consequences of sending such an email to the child’s Mother a week after the child’s birth. The Father’s attitude to his trenchant criticism of the Mother’s conduct soon after the child’s birth fails to take into account the nature of such a communication and the time it was sent.
Proceedings start
Soon after that email the Father filed proceedings seeking to compel the Mother to move back to Melbourne and for orders to spend time with the child. The Mother responded by seeking that she be granted sole parental responsibility for the child and that she be allowed to live in Sydney with the child and that the Father’s time with the child should be supervised.
On the first return in this court (the child was not 3 months old) orders were made by the court that provided for weekly supervised time for the Father with X in Sydney and for a section 11F child inclusive conference memorandum and return to court on 23 November 2017.
The First Section 11F Child Inclusive Conference Memorandum
A section 11F Child Inclusive Conference memorandum was prepared on 20 November 2017 and the parties returned to court on 23 November 2017. This memorandum recites the issues and many of the allegations as they were at the time. Those observations included:
Child Safety and Wellbeing
•Both parties raise concern about the other’s propensity for risk. The mother is concerned that the father’s perceived difficulties with emotion regulation and impulse control impacts upon his parenting capacity and risk of being unable to effectively manage the challenging nature of parenting. She is also concerned that the father poses a risk of exposing the child to inappropriate sexual behaviour, due to his own needs taking precedence over the needs of others. This concern is set out further in her material to Court.
•In contrast, the father perceived the mother to be obsessive with regard to the care of the child, particularly in relation to X’s medical needs (eczema/possible allergies). He believed she had used this to undermine and inhibit his relationship with X by allegedly dictating previously that he not have any skin to skin contact and only hold her if he was holding a piece of cloth between them. He felt this compromised his capacity to adequately comfort the child when unsettled. He worried that she will continue to dictate or undermine his parenting, impeding the developing bond between them. If the Court were to accept the father’s version, there would certainly be concern with regard to the mother’s capacity to support the paternal relationship or expose the child to the parental conflict in future. It is the writer’s opinion that the mother will benefit from counselling assistance in regard to any anxiety separating from the child and allowing the father conjointly parent X (in the absence of risk).
…
Co-parenting relationship
•There is currently no communication between the parents. The mother was very clear that she is fearful of the father, given his alleged behaviour toward her during their relationship, and she has limited confidence that she will be able to communicate with him without being manipulated. The father was also clear that he too fears being manipulated by the mother. He feels that the mother has unilaterally detached him from the child’s life to benefit her own. He claimed that the mother has made independent decisions about the child’s development and welfare without adequate consultation or consideration of his views. He believes this will continue in the event she is to remain in Sydney, and he is worried he will be unable to be actively involved in parental decision making.
…
Issues for the children
•The father is seeking that he be involved in naming the child. He considered the mother to have disregarded his desire to have the child named under Sri Lankan tradition, using letters of the alphabet that coincided with the birth date. He also claimed they had mutually agreed upon the child being given a Latin name prior to their separation, and he is therefore seeking that the name be changed from X, to a name mutually agreed. He reported a willingness to provide the mother with two potential options for her to choose, however the mother is not in agreement to changing the child’s name.
…
Future directions
•The parents maintain equal joint parental responsibility at least on an interim basis, and the mother make a more concerted effort to consult with the father prior to any major decision making (including medical).
•The child lives with the mother.
•In line with the child’s developmental needs, ideally she should be spending regular intervals of time with her father in order to develop an appropriate bond with him. However, this is unlikely to be achievable if the child remains living in Sydney. The current arrangements appear extremely taxing for the father, and are unlikely to be achievable for much longer, either financially or psychologically.
The Mother was represented by senior counsel. The matter was adjourned for final hearing on 24 May 2018 and a Family Report was ordered and trial directions made. The supervised time moved to 2 hours each Saturday and Sunday.
Before the listed day for final hearing the matter returned to court on 15 March 2018 and a request to DHHS (Child Protection) was made for a report pursuant to section 69ZW of the Act.
Supervision service withdraws service
On 23 April 2018 P Contact Centre, and unsurprisingly given the parents’ demanding interaction with the service, told the Father (and told the Mother to the same effect) that, “due to the high level of case management, that is exceeding the scope and capacity of the service, we have made a decision to suspend the service effective immediately” and the Mother was told, “…this is a final decision made this morning, but it has been coming for a while, and it is relation to both parents behaviours”, (see exhibit M7 23.3.21 at page 69-70 of 127).
Because of the evidence, including that recited above and the demeanour of each parent in the witness box and the tone of their affidavit material, I find that both parents have a limited ability to see his or her contribution to the parental conflict, a limited capacity for self-reflection and a firm belief in the correctness of whatever he or she has done or not done. I find that medical staff, supervisors and medical practitioners assisting the parents with the child found both parents difficult to work or deal with and that neither parent has any real understanding of why that is and simply sees it as the fault of the other parent. I find so because of the evidence and matters recited above.
The First Family Report – 24 April 2018
In March 2018 Dr K saw the parties, at some length, for the 2018 Family Report interviews and prepared a report dated 24 April 2018. The report is released the day after P Contact Centre has refused further service. I infer the recommendations made would have informed the parties’ positions that led to the May 2018 consent orders. Further, the subsequent events, including the interaction between the parents, was in the shadow of, and with the knowledge of Dr K’s observations, opinions and recommendations. Those observations and recommendations bear repeating and some are as follows:
…Ms Bahl is still concerned about X staying overnight with her father because of her worries about Mr Bahl’s menta health and she worries about Mr Bahl having a breakdown. She is also concerned about Mr Bahl’s sexual interests if X stays overnight with him. Ms Bahl believes that X should not begin to stay overnight with Mr Bahl until she is of school age.
…
When I observed X with her mother they interacted affectionately and X initially responded in an appropriately wary fashion towards me. After Mr Bahl joined us, there was very little interaction between Mr Bahl and Ms Bahl until he asked Ms Bahl about X. I noted that when Ms Bahl left the room she did not say anything to X or reassure X that she would return soon. Similarly, on her return, Ms Bahl did not specifically greet X. These observations are consistent with those of the Contact Centre supervisors who noted Ms Bahl's increased anxiety during changeovers and her difficulty responding directly to questions.
By contrast Mr Bahl appeared attuned to X's needs and responsive to them. This is also consistent with the supervisors' reports. When I suggested to Mr Bahl that he leave the room briefly, he farewelled X appropriately and X responded warmly to his return.
In summary, X is a nine month old infant who appears to be developing appropriately and interacts warmly with each of her parents. While both parents interacted appropriately with X, Mr Bahl appeared more attuned to X's needs.
Although there are numerous discrepancies in the accounts provided by Mr and Ms Bahl of their relationship, I do not believe that these are sufficient to exclude Mr Bahl from X's life. Provided he gives priority to X’s safety and needs Mr Bahl should be free to pursue his sexual interests, particularly as they no longer involve Ms Bahl. Mr Bahl’s presentation during supervised time and during this assessment indicate that he is able to prioritise X’s needs in an appropriate fashion.
…
If Mr and Ms Bahl are unable to reach agreement then I respectfully recommend the Court gives consideration to the following, taking into account the requirements of ss60CA, CC, CD and CG of the Family Law Act (1975):
1.THAT Mr and Ms Bahl share equal parental responsibility for X.
2.THAT Ms Bahl takes the necessary steps to register Mr Bahl as X's father.
3.THAT Ms Bahl and X return to Melbourne within au agreed timeframe that is no longer than three months.
3.1In the meantime the current time arrangements should continue without the need for supe1vision, except perhaps for changeovers. ·
4.THAT on Ms Bahl's return to Melbourne X should continue to live primarily with Ms Bahl and spend time with Mr Bahl as follows:
4.1For two hours twice during the week and four hours once on the weekend for four months.
4.2For two hours twice a week and for eight hours on one weekend day for a further four months.
4.3The weekend time should then increase to one overnight each weekend for six months.
4.4Gradually increasing overnight time to a minimum of two nights on alternate weekends up to equal time with each parent.
5.It may be necessary to review these arrangements after 12 months unless Mr and Ms Bahl are able to agree on the best ongoing arrangements for X once 4.1-4.3 have been implemented.
In conclusion, it may be worth reminding Mr and Ms Bahl of the considerable body of evidence of the harmful effects on children of ongoing conflict between their parents post-separation and the benefits to children if parents can agree to parent cooperatively and with a minimum of conflict. Young children in particular are likely to be vulnerable to witnessing ongoing conflict between their parents.
2018 Consent Orders for gradual implementation of overnight time

On 24 May 2018 the final hearing did not proceed. I accept it is difficult to chart the future of a child’s life in final orders before the child’s first birthday. The orders made compulsory provision for many matters in what turned out to be a vain attempt to head off future conflict including that the parties attend family therapy. Orders then made by consent are consistent with the 2018 Family Report recommendations but stop at one night overnight rather than moving to two nights and included:
1.The parties do all things and sign all documents necessary to change the child’s name from X to X born in 2017 by no later than 30 June 2018 and shall equally in any costs associated with such change.
2.        The mother and father have equal shared parental responsibility for the child.
3.        The mother return, with the child, to live in Melbourne by Friday 15 June 2018.
…
6.        The child spend time with the father as follows:
(a)       …
(b)       Upon the child’s return to Melbourne:
(i)Each Thursday (or such other day as agreed between the parties in writing) from 4:00pm until 6:00pm (subject to paragraph 7).
(ii)Commencing Saturday 16 June 2018 each Saturday and Sunday from 9.00am until 2.30pm.
(iii)Commencing Saturday 15 September 2018, the first, second and third weekend in a four-week cycle from 8.30am until 5:00pm on Saturday and Sunday.
(iv)Commencing Thursday 7 February 2019, each Thursday (or such other day as agreed between the parties in writing) of the first, second and third week in a four-week cycle from 4:00pm until 6:00pm (subject to paragraph 7).
(v)Commencing Saturday 9 February 2019 on the first, second and third weekend of a four-week cycle from 9.00am Saturday until 11.00am Sunday.
Hence the orders provided for frequent but short periods of time with the Father and a gradual build-up of time with the Father leading to one night overnight from when X would be 18 months old. It is common ground that, while the supervision facility was available, the Father travelled to Sydney to spend supervised time with the child every weekend. The proceedings were adjourned for about a year away to 3 May 2019 for mention.
The Mother returned, with her mother, to live in the home of her parents in Melbourne. The Mother alleged that the Father reverted to the behaviour she had experienced during their relationship and that he would abuse and demean her at changeover. The Father maintained his denial of the alleged behaviour.
The parent’s interaction with services relating to their child was such that the supervision service in Sydney, after assisting the family, had found them too difficult to work with and refused further service (as set out above) and both parents should have worked out by now how difficult they were to deal with. But they didn’t. The parent’s conflict and personalities continued to spill over into all aspects of the child’s life.
Mother complains to paediatrician and G.P.
The child was referred to a specialist paediatric allergist and immunologist in mid 2018, after the parties had the benefit of the orders of May 2018 and Dr K’s report. The Mother’s anxiety about, or preparedness to raise, the possibility of the Father’s sexuality affecting the child had not abated.
On 12 June 2018, a few weeks after the May 2018 consent orders, the child was taken to her GP by the Mother and her grandmother (ICL2 page 51). The notes record that the Mother requested, “to do STD (sexually transmitted disease) check for the baby- says her husband has multiple partners & having group sex”. The doctor requested HIV serology, syphilis serology, Hepatitis B & C serology by way of blood tests as well as the usual tests often undertaken. From the lack of evidence or my attention being drawn to something, I infer those results at some point came back negative.
Three days later, on 15 June 2018, the Mother attended the same surgery with the child, with another GP and was concerned about not unusual childhood medical issues and “also separated from her husband- says he has multiple partners more worried about her daughter and a lot of questions regarding the possibility of her getting STI (sexually transmitted infection)” (ICL 2 page 51).
This otherwise well child attended the GP clinic on 18 June 2018, 21 June 2018, 26 June 2018 and was brought in my both parents on 11 July 2018 and there were a lot of arguments between them at the surgery.
On 21 June 2018, the same day she took the child to the GP for the fourth time that month, merely a month after the orders discussed above, the Mother emailed the rooms and requested her the email be passed onto the specialist. The email asserted:
Hi,
As discussed over the phone please send this private email to (the doctor) letting him know of my situation with (the child’s) dad:
The child’s father is highly critical of me and he has financially blackmailed me and threatened to take (the child) away from me and threatened to take me to Supreme Court to do so. Due to his dominating behaviours I am concerned my voice is not heard when making decisions about X’s medical needs. I am concerned (the child’s) dad will use her medical conditions to control me and black mark me. We separated due to these very controlling and abusive behaviour especially sexually abusing me throughout the marriage. (The child’s) dad leads polygamous sexual lifestyle including male to male animalistic sex and group sex. I am concerned that he might catch STDs due to his assistive sexual behaviours. His sexual behaviours was noted by the court orders. I am concerned X can also catch an STD if her dad has through wounds or scratches et cetera. I would like X’s dad to have a full STD screening and I’m happy to be tested also for balance. Thank you, (Mother).
On 19 July 2018 the Father emailed the GP clinic with a request that the clinic avoid any examination and attendance on the child in his absence. This prompted the doctor to contemplate his indemnity insurance.
On 21 August 2018 the Mother brought the child into the clinic and the Father joined them. In the presence of the doctor the parents started arguing (ICL 2 page 46). On 21 September 2018 the parents brought the child to the GP. Again the parents started arguing once they entered the clinic and were blaming each other for small things which each saying the other did not look after the child properly on their “time slot”.
Child’s G.P. Clinic refuses to treat child
By the end of that same year the child’s GP medical practice in Melbourne refused to assist the child any further and asked the parents to find another GP for the child. On 3 December 2018, (the child is only 15 months), the child’s GP wrote to the parents as follows (M9 23.3.2021):
Dear (Parents),
I have endeavoured to provide a high level of care to (the child) despite the difficult ongoing relationship between (the parents). Despite trying to work with you both I regret to inform you that I believe that our doctor-patient relationship has irretrievably broken down. I no longer feel that I can offer you the level of care that (the child) requires. I am therefore notifying you of my decision to allow you to appoint another practitioner. If you would like to notify me of the new practitioner’s details in our clinic or outside I would be happy to provide him/her with (the child’s) medical notes.
On 21 January 2019 another doctor at the same clinic wrote to the parents and advised as follows (exhibit M9):
Though I am not your regular doctor I believe that our doctor-patient relationship has been deteriorated due to some of your behaviours towards practice staff/other doctors. This led me to believe that I can no longer offer you the level of care that (the child) requires except for a real emergency. Hence I’m writing to inform you that I’m ending our doctor-patient relationship with effect from 21 January 2019…
A third doctor at the same clinic wrote to the Mother to similar effect at that time in early 2019 (M9 23.3.2021).
Court ordered time does not happen in early 2019
The court ordered, and agreed, path to overnight time proved too difficult. The Mother described the events at paragraph 44 of her affidavit filed 9 March 2021 as follows:
(b)The Orders made on 24 May 2018 allowed me and the Father to agree to alternative care arrangements for X. I had agreed to the commencement of overnight time while still living in Sydney hoping that the Father could care for X. At the time I also thought that X may have weaned off breastfeeding by then, however in reality she was reluctant to wean.
(c)On 15 and 25 February 2019 I expressed my concern in writing to the ICL and the Father’s solicitor regarding progressing to overnight time as X was still being breastfed at night and would not settle with a bottle, and stated that I would not bring X to changeover unless it was agreed that overnight time be delayed. The Father protested but agreed to limit visits to daytime for individual weekends throughout February, March and April 2019.
(emphasis added).
Hence the previously agreed date, in line with Dr K’s recommendations, for the introduction of the extended, and one night overnight time of 9 February 2019 (order 6(b)(v)) came and went without that time occurring because the Mother changed her position. She said for good reason. It was not in dispute that the Mother’s position was that she would not bring the child to changeover unless the previously agreed overnight time was agreed to be delayed.
The Father, as evidenced by the filed contravention application, saw this as a breach of orders and I find, must have experienced frustration at the process. I did not detect in the Mother’s affidavit any empathy or insight into the frustration that the other parent would likely experience in the process. This is an example of the Mother using her position as the parent with the majority care of the child to dictate to the other parent her view that the orders should not be complied with when she disagreed with them.
New orders without overnight time
On 25 March 2019 the Father filed a Contravention Application. It was returnable on 20 May 2019. Before the first return of that application the matter came before the same Judge, for mention (pursuant to the 24 May 2018 orders) on 3 May 2019. Orders of the Court provided for the first return of the Father’s contravention application to be vacated and the matter was adjourned for directions to 20 August 2019 and a further or second 11F report or memorandum ordered with the further interviews on 5 July 2019. Also on 3 May 2019, by orders of the Court (not consent orders) the extant orders were replaced by orders that provided for all day time (but not overnight) on each Saturday and Sunday for three out of four weekends and 2 hours each Thursday.
The Father’s inevitable frustration at the further delay, expense and need for a third report from an expert, only need to be contemplated to be appreciated. The Father did not give in in the face of these obstacles.
The Second Section 11F Child Inclusive Conference Memorandum
The second section 11F child inclusive conference memorandum, dated 5 July 2019, demonstrates the escalation of conflict between the parents. The memorandum concluded, notwithstanding the child may continue to breastfeed, that time progress to the child spending one night per week overnight with her Father.
The second section 11F memorandum predicted, unfortunately correctly, more trouble to come for the parents. Those observations included:
MENTAL HEALTH:
•Both parents report vulnerable mental health. They both report they are well and functioning. Both parents believe the other parent and their behaviour has affected their mental health in terms of anxiety and depression. This is likely to continue to be a factor for these parents and contributes to vulnerabilities in their personal copying styles, ability to relate and capacity for insight.
ADULT RELATIONSHIPS
•Both parents present with vulnerabilities and difficulties. There is little trust between the parties. They both blame the other for the difficulties and they both perceive themselves as offering superior parenting.
•The mother appears to experience heightened level of anxiety over a number of parenting issues and contact with the father. She cannot conceive the father will be able to settle the child to sleep at night even though he does this during the day and the child sleeps at childcare. She perceives the father as tormenting and extrapolates her experience of relationship with him to how he must relate to X. She concludes his desire to achieve his own goals of X being with him will be relentless, and he does not take into consideration X’s everyday needs.
•The father presents as fixated in his endeavours wanting to prove and argue his point that he has good capacity to care for X, the mother is vindictive, lies and finds ways to obstruct his goal of a shared care arrangement. He perceives X as distressed at return to her mother’s care and interprets this, as X must want to be with him and not return to her mother.
•Both parents seem so fixed in their positions; they attribute blame to the other and regard themselves as the conciliatory one. They both present with limited insight and their own positions seem to obstruct child focus. There seems little possibility they could negotiate and enter into any constructive co-parenting. They both describe a dynamic where they both want their own parental style or need for routine implemented, they attempt to negotiate this and invariably this ends in conflict and difficulties. The parties are likely to benefit from highly structured and stable arrangements that necessitate limited communication for a good length of time in an effort to develop routine, consistency and minimise conflict.
CHILDREN
…
•X although small in her appearance presented as congruent to her developmental age and there was nothing to suggest she is not developing well at this point in time.
•X spent some time with her father playing in the playroom and she ran to him as soon as she saw him. The father was well prepared with toys and food for X.
•The writer requested the mother conduct a handover from the father for observation and initially the mother did not want to engage, although reluctantly agreed. She reported she did not feel comfortable in the presence of the father.
…
ISSUES FOR THE CHILD
•The child is still young and at risk of compromise in meeting her developmental milestones and relationship formation if exposed to ongoing parental acrimony. Children who are very young and become unsettled and distressed through disrupted attachments, inconsistent routines and exposure to ongoing conflict and experience difficulties in developing without complication. Ongoing litigation is likely to further entrench the parties’ views and conflict and may adversely affect X and her development in the longer term.
The abundant capacity of the parents, demonstrated in the report, to only look at things from his or her point of view, could in some other context, be a good thing. It was not disputed the Mother had vetoed the family therapy.
The second section 11F memorandum provided the following recommendations:
FUTURE DIRECTIONS
It is respectfully recommended in the absence of information to the contrary that:
•The Court considers the recommendations made in the report provided by Dr K and in accordance with the Orders of May 2019. Whilst X is still breastfed, she is able to go to sleep for other caregivers such as the father and child care staff, the mother can continue to breastfeed her. Unless there is medical evidence, to the contrary the child X spend one night per week with the father. This comprise of three out of four weekends from Saturday in time for the father and child to attend facilitated playgroup until Sunday 12 noon, and in the fourth week on weeknight where the father collects the child from day care and returns her to day care the following morning. A supervised handover is considered. If this is not possible, handover takes place in a public place with clear guidelines around time and the area it is to occur.
•This care arrangement occurs for a period of twelve months and is reviewed prior to any further Orders.
•Both parents attend a post separation-parenting course if they have not previously done this…
New orders again progress to overnight time
The matter returned to court soon after the release of the second section 11F memorandum on 20 August 2019. The child, now a veteran of many court hearings, had just turned two years. Refreshingly, detailed orders were made by consent on this day. The time arrangements were that the Father spent time with the child each Wednesday and overnight in week one (of a two week cycle) and from 3.00pm to 6.00pm on the other Wednesday and each alternate weekend from Saturday morning until Sunday evening.
Other orders are significant, including about changeover and the child attending childcare. The orders were as follows:
5.For the purpose of changeovers, and unless otherwise agreed in writing, the father collect from, and bring the child back to the childcare centre; and if changeovers occur outside childcare times (i.e. weekends & public holidays), the parties shall facilitate changeovers at McDonald’s in Suburb E.
6.The parties shall be punctual in attending changeovers.
7.The parties shall ensure the child attends childcare on three days each week from Tuesdays to Thursdays 9am to 4pm save if the child is unwell as a minimum and shall bear equally the cost of childcare.
…
10.The parents shall keep the other advised of any medical and/or health issues concerning the child, and shall authorise and direct any medical practitioner or the like upon whom the child attends to discuss the her medical condition with, and forward copies of any reports and the like to, the other. Except in the case of a medical emergency, parents shall only take the child to attend upon doctors at the Suburb B Central Clinic (U Street, Suburb B VIC), and shall implement and adhere to any treatment regime specified by the child’s treating medical practitioner/s.
11.The mother and father communicate about parenting matters including the child’s diet and routine in writing via email in the first instance and in the case of an emergency via text.
…
Trouble continued. An example was the inability of the parties to manage the child going from one parent to the other at the hamburger restaurant changeovers. The Mother refused to take the child from the Father’s hands to avoid contact with him, due she says, to the trauma of their past relationship. The Father complained of having to leave the sleeping child on a bench in the restaurant and the Mother then complained that the Father was negligent to leave the child “unattended”. Neither party addressed the circumstance that each either intended to irritate or “wind up” the other at these times, or proceeded with a rigid and self-righteous approach regardless of the irritation that they may cause the other. I cannot determine which of those two possibilities actually occurred.
The 18 March 2020 Orders controversy
The matter returned to court, as intended, on Wednesday 18 March 2020. The Mother had yet to demonstrate that she had registered the variation in the child’s name or that the Father was the father of the child, and the child was approaching her 3^rd birthday. These events are important because of the extent of the evidence and the time in cross examination taken with this controversy and because this is an example of the attitude of each parent to the other, the manner of, and lack of, their communication, the capacity of each to “wind up” or irritate the other, how each treated court orders and how each involved the child care service in their dispute and just how difficult each was, although not in equal proportions, to deal with. This dispute informs whether the parties could comply with section 65 DAC, the nature of the parties communication and the parental relationship.

Mr Barbayannis, counsel for the Father’s cross examination of Dr H included the following passage:
Mr Barbayannis:        …And have you noted – and, again, I’m not trying to put words in your mouth, but as I said your report, it seems that things have settled throughout both the parents and X’s engagement with you over time; is that right?
Dr H:Yes. My impression – I had individual parent sessions with the parents early on, but since then I’ve only seen the parents at the – when they dropped X off, but my impression in those sessions is both parents seemed calmer, less emotional in recent – recent weeks.
Mr Barbayannis:        Because, Dr H, what I will be putting to his Honour at the conclusion of this trial is that notwithstanding the fairly tumultuous period that X has had since her birth, effectively, because her parents separated before she was even born, we are now at a point where the parties are managing X’s day-to-day life fairly effectively, and that’s consistent with your observations, isn’t it?
Dr H:It is consistent with my observations, yes.
Mr Barbayannis:        And can I ask – and it’s not a loaded question – but is there anything that you have observed that would suggest that X has been influenced by the father’s views of the mother?
Dr H:There’s nothing I can see in X that would suggest that, no.
…
Mr Barbayannis:        Dr H, I am very sorry. The response that you provided to the last question didn’t come through on our end. I am just going to have to repeat the question. I could see that you were talking, but it froze on our end and the audio had frozen. I am sorry. This is just one of the realities that we’re faced with at the moment. So I am just going to ask the same question that I asked. And I am sorry for making you repeat yourself, but I asked you whether you had observed anything in X that would suggest that she has been influenced by any view the mother has about the father?---
Dr H:My answer is I haven’t observed anything in X in the sessions with me where I see her, but I have seen the video that Ms Bahl made. Mr Bahl shared that video with me - and that video does suggest to me that X is being influenced by the mother’s perception of the father.
(see page 716-717 of the transcript dated 13 August 2021)
Paragraph 87 of the second family report, recited above, was put to Dr H (it was read to her) and she answered, “No, I don’t agree”.
Dr H’s expertise was not questioned. Her knowledge of the child is substantial. Her report and evidence was careful, concise and insightful. I accept Dr H’s evidence as contained in her report and in her oral evidence. Because of the considered manner of her evidence and her much longer and more frequent time for observation of the child and the parents, I accept her evidence where it is different to the second family report writer.
Mother’s evidence in cross examination
The Mother was pressed in cross examination about her change of position and what she really believed about the sexual abuse. The following passage of evidence occurred on 24 March 2021 that is 5 days from changing her position to seeking the shared care 4/10 arrangement with half school holidays.
The Mother was further cross-examined about her statements in her own affidavits including one filed 3 May 2019 and the many complaints in that affidavit that I interpret as the Mother intending at that time to paint a picture of serious risk to the child.
Ms Smallwood SC:      And I will just read you, keeping in mind your sworn statement that she was never at serious risk with her father. Let’s look at paragraph 19. You say, on oath:
“The father’s attitude towards X is grossly not child-focussed and constitutes a form of child abuse. Furthermore, as father is now living on his 5 own and no longer lives with his sister, I firmly believe that father’s home environment to be unsafe.”
Well, that flies in the face of she was never at risk – serious risk. Doesn’t it?
The Mother:               Well…
Ms Smallwood SC:      Would you just say yes or no. Would you say that was in accord with serious risk?
The Mother:               No.
Ms Smallwood SC:      Or not. Thank you?
The Mother:               No, it’s not serious because there was no sign of anything.
Ms Smallwood SC:      Then we go – I will read from paragraph 24…
(see page 353 of the Transcript dated 24 March 2021)
The valid point of the cross-examination was the allegations previously made over a long period that contradicted or were inconsistent with the Mother’s paragraph [137] assertion of there then being no serious risk of harm. The Mother did make allegations of serious risk of harm but had either forgotten or now disavowed when affirming paragraph [137] cited earlier. When the inconsistency was brought to her attention, she denied the inconsistency.
Ms Smallwood SC:      So that wasn’t serious, what I’ve just read out. That wasn’t serious harm?
The Mother:               Well, it was the consequences – the potential consequences is, but the likelihood is low because she hasn’t just said anything or demonstrated a sign.
His Honour:               Hang on, Ms Bahl, Ms Smallwood’s point – the part of the question, I think, that I want to make sure that you understand, is that what she’s put is that what you said on 8 March in your affidavit – the paragraph that she’s repeated to you a number of times now?
The Mother:               Yes.
His Honour:               Where you said, “Until recently I didn’t believe there was any serious harm” ([137]), you remember that paragraph?
The Mother:               Yes. Correct.
His Honour:               In the affidavit?
The Mother:               Yes.
His Honour:               What Ms Smallwood has said?
The Mother:               Yes.
His Honour                …given the matters that what you said on 30 April, okay?
The Mother:               Yes.
His Honour:               That either what you said on 8 March was false or what you said on 30 April was false, and she’s giving the opportunity to comment on that, you see. How can the two stand together, one of them must be false, is the proposition that Ms Smallwood’s putting to you?
The Mother:               Yes, I would say that is incorrect, your Honour.
His Honour:               Yes?
The Mother:               Because I consider serious harm is when the risk is very high.
(see page 356-357 of the Transcript dated 24 March 2021)
The following occurred on 26 March 2021:
Ms Smallwood SC:      So, I suggest to you that when you say that, that she’s going to Dr H and this is good because it will make her feel safe communicating to people, you are hoping that she will tell Dr H that she has been abused, aren’t you?
The Mother:               It’s up to her how she wants to communicate.
Ms Smallwood SC:      I didn’t ask that?
The Mother                Yes.
Ms Smallwood SC:      Did you listen to the question?
The Mother:               Mmm.
Ms Smallwood SC:      You are hoping she will tell Dr H that she has been abused, aren’t you?
The Mother:               No. If she wants to communicate... I…
Ms Smallwood SC:      Yes. But you think she’s being abused?
The Mother:               Yes.
(see page 366 of the Transcript dated 26 March 2021)
It is common ground the Mother does believe the child has been abused. I find that what the Mother says about the Father and the child at any point in time to be unreliable and a reaction to how she feels, or wants to feel, at that time. Notwithstanding the therapy I will order, there is a substantial risk the Mother will continue to deal with parenting the child by making and feeling unreliable emotion driven statements or positions about the Father and the child.
BEST INTERESTS
In deciding what particular parenting order to make I regard the best interests of the child is the paramount consideration, section 60CA of the Act.
I must consider the matters described in the act as primary considerations and additional considerations. In doing so I take into account all of the evidence including those parts I have recited in these reasons as “significant events”.
SECTION 60CC CONSIDERATIONS
The primary considerations of Part VII of the Act are 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. Section 60CC (subsection 2A) commands that when applying those two considerations I am to give greater weight to the second or protective consideration. Abuse is defined in section 4 of the Act as including;
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being set check did to, or exposed to, family violence…
Counsel for the ICL submitted in final address as follows:
Ms Villella:Thank you, your Honour. Your Honour, the independent children’s lawyer’s position is that should the court adopt the mother’s proposal and X remain in the mother’s primary care, whether it be for four or five nights a fortnight, and – sorry – and spend four to five nights a fortnight in the father’s care, it’s her view that it would just be a matter of time that the father’s time with X will be further interrupted and therefore not in X’s best interests.
The independent children’s lawyer therefore supports the application that X primarily resides with him – the father’s application – that she reside primarily with him and spend significant and substantial time with the mother, whether that be four or five nights a fortnight, with equal-shared school holidays commencing when X commences primary school and shared special occasions in line with Mr N’s ultimate recommendations in this regard.
(see page 726 of the Transcript dated 13 August 2021)
Senior counsel for the Father in final address put it thus:
Ms Smallwood SC: … it’s our argument that if X stays with her mother, her meaningful relationship with her father will be, at best, suspended from time to time, at worst, eliminated. (b) section 60CC(2)(b) then tells you the other primary consideration, that is the need to protect the child from physical or – my emphasis – psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I would submit that primary consideration is also very much before your Honour because in my submission the mother’s endeavouring to persuade X to accept that she has – and tell others that she has been sexually abused by her father, as we have direct evidence of in those videos, is, in fact, abusive behaviour and in order – if that is to continue, if the child is left in a situation where the child is being urged to accept that she label herself as a victim of child abuse, then that in itself constitutes psychological harm.
And it’s not limited to just the videos, it’s limited to the entire environment from which such a conclusion for the child and such a self-awareness would develop and self-definition would develop, and Dr H’s evidence this morning, in my submission, was very pertinent to that particular primary consideration. So unusually, in this particular instance, those two primary considerations are, in fact, the very thrust of this particular case, and whilst they are two separate considerations, in this case, they are, in my submission, inextricably bound to the same set of facts.
(see page 740 of the Transcript dated 13 August 2021)
In a case dealing with allegations of sexual abuse that were maintained throughout the hearing to final address when dealing with the ground of appeal complaining about the correct relevant legal principles relating to allegations of abuse and unacceptable risk the Full Court in the matter of Milton & Milton [2021] FamCAFC 64 observed:
[82]We accept that in determining the issue of what parenting orders should be made, the court is concerned to make an order “which will in the opinion of the court best promote and protect the interests of the child” (M v M (1988) 166 CLR 69 at 76 (“M v M”)).
[83] In M v M at 76, the Court continued:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In substance it was put by the ICL and the Father, that because of the past history, the court can conclude that if the child lives mainly with the Mother, the Mother will interrupt the Father's time with X ("it would just be a matter of time"). I do not find that such an event is certain but I do find that there is a substantial risk that that would occur and that this would pose a risk of significant psychological harm to the child.
It is not in question that the child will benefit from a meaningful relationship with both parents. If that were in issue the evidence of the first and second section 11F memorandums, the evidence of the first and second family reports and the evidence of Dr H confirms that the child will benefit from, and needs, a meaningful relationship with both parents. I do not accept that the Mother has genuinely promoted such relationship. The court orders and the Father’s determination and skill as a parent (in difficult circumstances) have assisted that relationship. I find that the Father is, now and in the future, better able to promote a meaningful relationship with the other parent than the Mother is, and significantly so. The therapy I will order will assist him parent the child in the new regime.
I find that the child living in a shared arrangement but with more time with the Father will best promote a meaningful relationship with both parents and best protect the child from the psychological harm of her relationship with one of her parents being interrupted. Because of the evidence of the Mother’s continuing concern about the Father’s sexuality, the unreliability of her feelings at any point about the Father’s relationship with the child, the Mother’s deficit of insight into the impact of her raising serious allegations of abuse of the child by the Father and her not really feeling there is a benefit to the child’s relationship with the particular Father she has, there is a substantial risk that the child’s relationship with one of her parents will be compromised.
The evidence recited shows that the Father’s attitude to the Mother is not without deficit. However in all the tumult of the litigation he has not ever put the child’s continuing relationship with the Mother in question. The child living with the Father for more time than with the Mother will best promote a meaningful relationship with both parents.
The risk of harm to the child of her coming to believe she has been sexually abused by her Father, when she has not, is substantial. The child living with the Father for more time than the Mother, combined with the therapy for the Mother I will order (as recommended by Mr J) will best protect the child from the harm of that false belief.
Additional considerations
I must take into account, to the extent relevant, the considerations described at section 60CC(3)(a) to (m). Those provisions are as follows:
(3)      Additional considerations are:
(a)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;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
The child is too young for her wishes about which parent she lives with to be given any weight and this aspect was not pursued. I accept Dr H’s evidence as to the nature of her relationship with each parent. This child has a close and caring relationship with both parents and this is so despite the difficult path for the Father to maintain and build that relationship. Each parent has taken every opportunity to spend time with and care for the child.
The likely effect of any changes in the child’s circumstances is a major consideration. In the circumstances of this child’s close relationship with both parents the child will experience a period of adjustment. The orders sought by any of the parties would not have the effect of severing the child’s bond with either parent. The orders now sought by the Father will not entail attachment disruption and trauma as concerned the second report writer. To the extent that a change of the child’s living arrangements does cause a period of adjustment that disadvantage to the child must be considered against the longer term advantages of such change. In this case the longer term advantages outweigh the short term period of adjustment for the child. The maintenance of the Mother is the child’s life over five nights, not four, each fortnight spread over two or three periods will lessen that disruption.

I have carefully considered the evidence about family violence. I have not found the Mother to be a reliable witness about her relationship with the Father. I do not find that family violence has occurred on the balance of probabilities notwithstanding that there are reasonable grounds to believe that has occurred when considering the different test concerning the section 61DA presumption.
The parties live sufficiently close together and their homes and the schools each plans for are close enough that each sees a 4/10 shared arrangement, but in his or her favour, as the preferred outcome. Each will experience inconvenience in travel for kinder, school and work if the child lives mostly with the other parent. A 5/9 arrangement means a significant number of child care or kinder or school drop offs for one of the parents that will be less convenient for one of the parents, that is the parent who lives further away from the child’s child care, kinder or school. However the practical difficulty and expense of either a 4/10 or a 5/9 arrangement for the child and the parents is modest.
Each party has the capacity to provide for the needs of the child. The child is four and half years of age. The parties come from similar cultures. The Father is concerned at the degree and type of religiosity in the Mother’s household. He regards the Mother as adhering to a cult. While that is his opinion the evidence does not demonstrate that the Mother or Father’s religious beliefs are a danger to the child. I am concerned at the potential for conflict about religion between the parents but the evidence does not persuade me that when the child is with one parent that parent should be forced by court order to have the child follow the other parent’s religious beliefs.
An important aspect of the attitude to the responsibility of parenthood is the capacity for and manner of how each parent supports the child’s relationship with the other parent. At this time the Mother has a limited capacity to genuinely support the Father’s relationship with the child. Despite his shortcomings as a parent shown by the evidence he has not sought to limit or damage the Mother’s relationship with the child and he has shown devoted perseverance to the maintenance of his relationship with the child in the difficult circumstances demonstrated by the evidence.
All parties seek final orders. The end of litigation will assist the parents and hence the child get on with life with less conflict and less concentration on the parental faults of the other.
The other fact and circumstance that is relevant is the Mother’s continuing sensitivity to the possibility of the sexual abuse by the Father, her belief that has occurred recently and her brave and difficult for her, recent acceptance of the fact that no expert involved sees a risk of sexual abuse to the child. This shows courage and insight on the Mother’s part. However back in 2018 the first family report did not observe a risk of sexual abuse but the Mother’s concerns continued. The Mother’s sensitivity to sexual abuse and her belief that this has occurred recently when it is not now alleged, continues to be a risk to the psychological welfare of this child. The Mother’s change of position means that some sort of settling down interruption to her time with the child with the trauma that would cause and/or the Mother’s time being conditional upon completion of therapy was not sought and does not need to be considered.
PARENTAL RESPONSIBILITY
I refer to the provisions of section 61DA of the Act cited earlier in these reasons, that is I must apply a presumption that it's in the best interests of the child for the parents to have equal shared parental responsibility. I must apply the presumption unless it does not apply or is rebutted by evidence that satisfies the court that would not be in the child's interests for the parents to have equal shared parental responsibility.
The presumption does not apply "if there are reasonable grounds to believe that parent… has engaged in family violence". The provision is silent as to who is to have such belief for the presumption not to apply. I did not raise this aspect with the parties and it was not debated before me hence the observations that follow must be considered as made in the absence of a contradictor. I take into account the amending provisions Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (Act number 46 of 2006) (‘the Amending Act’) and the Act as a whole. One purpose of the Amending Act and Division 2 of Part VII of the Act is to ensure that a Judge does not apply the presumption when there is family violence: hence it must be intended that if the Judge has the described belief then the presumption does not apply. This is clear from the provisions.
If I am wrong about that and there is ambiguity in the provision I can have regard to the extrinsic material of the explanatory memorandum of the amending provision. Paragraph 123 of the explanatory memorandum states as follows:
123.New subsection 61DA(2) states that the presumption will not apply if the court reasonably believes that a parent of a child…
(emphasis added)
Hence it is clear that the intention or purpose of the provision relates to the belief of the court or the judge.
I have not found on the balance of probabilities that there has, or has not been, the family violence alleged in this case. The test of section 61DA(2) for when the presumption does not apply is a different one to be applied to other factual findings in the case which must be pursuant to section 140 of the Evidence Act. In this case I have unequivocal and repeated allegations of sexual abuse, by force and by coercion, of the Mother by the Father. This is clearly an allegation of family violence within the meaning of section 4AB of the Act.
Notwithstanding that I have not found the Mother's allegations proven in accordance with section 140 of the Evidence Act, I find that there are reasonable grounds to believe that a parent in this case has engaged in family violence. Hence I find that the presumption does not apply in this case.
In regard to parental responsibility the second family report writer opined as set out at paragraph 95 of his report and cited earlier in these reasons.
The Father and the ICL submitted that the Father should have sole parental responsibility because of the evidence that indicated that the parents would be unable to consult and reach agreement about matters such as health and education. The Father asserted the same in regard to matters of religion.
In this case apart from the presumption there is evidence as to the benefits to a child, generally speaking, of his or her parents having equal shared parental responsibility. Dr H opined as follows:
I would say usually in these circumstances it would be best for the child if the parents do have equal-shared responsibility for those decisions. That would be normally what would be best for the child, and I think not just for the child growing up, but also when they are grown. I think it’s – it would be good for the child to know that both parents were equally involved in those decisions; it helps the child to feel that both parents care about her and were equally and jointly working together to make the best decisions for her. So that would be – that would be the ideal outcome if both parents are able to be jointly responsible for those important decisions.
(see page 722 of the Transcript dated 13 August 2021)
In final address the Mother submitted as follows:
The wife’s position is that X is settled. It’s 10 consistent across the board that she’s meeting her developmental milestones, that she’s happy in the care of both parents, and this case has not been run on the basis that Mr Bahl is a risk, notwithstanding the belief that my client holds that I accept quite earnestly that the court cannot ignore without giving it some consideration in context…
…
…this is now a time for the parties to pause for the first time in X’s life and accept that they’re finally in a good place, notwithstanding the chaos that has surrounded them.
(see page 781 and 791 of the Transcript dated 13 August 2021)
In substance the Mother's counsel adopted the position of the second report writer that to provide either party with sole parental responsibility would be to empower that parent to exclude the other with the risk that this would be detrimental to the welfare of the child. The submission was skilfully linked with the submission that the child was actually doing well amidst the chaos and that in recent times, that is during the adjourned period of the final hearing, the family was in a good place.
The Father's position in response was that there was no evidence whatsoever that the family was in a good place or that the parties would be able to consult to make necessary decisions. The ICL's position was that at this time and during the adjourned hearing the parties were communicating entirely by lawyers as to the child's welfare. I accept those submissions notwithstanding the child’s development reported by Dr H.
The issue of parental responsibility relates to major long term issues for the child.
Section 4 of the Act defines major long term issues as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
That is a very wide suite of matters and in this case it is not appropriate that either parent has sole responsibility for making decisions about that very wide suite of issues. I intend to define the primary school that the child will attend and also the medical clinic. However it is likely that decisions will need to be made about medical and educational matters and the evidence convinces me that the parties will not be able to comply with section 65DAC of the Act (recited earlier).
In this case decisions as to the health and education of the child will need to be made by the parent with whom the child is to live for the most significant period of time as otherwise it is likely that no actual decision be made. That determination is born of practicality and the poor capacity of the parents to genuinely reach a decision without external assistance. Nonetheless it is in the child's interests that the parents to do actually confer and each consider the other's point of view. However one parent will have to have the final say and on matters of health and education that will be the Father because the child will be living with him during school term for a longer period of time than the Mother, notwithstanding that the child will be living in a shared care arrangement, but not in equal shared care arrangement.
Hence there will be remaining aspects of shared parental responsibility and so section 65DAA of the Act must be considered. No party seeks equal time and it would not be in the child’s best interests. All parties seek that the parents spend substantial and significant time with the child and it is reasonably practical and in the child’s best interests that they do. The issue is with which parent the child should live for the greater part of the time. It is in the child’s best interest that she live with the Father for the greater time and the Mother spend substantial and significant time with the child.
CONCLUSION
Senior counsel for the Father submitted: “…really at the end of the day this case is about what’s best for X in the future, who is the parent who can best accommodate her ongoing welfare and development…” I accept that concise summary of the effect of the multiple provisions that I must apply. In this case the child living with the Father and living with the Mother for substantial and significant time will best accommodate the child’s ongoing welfare and development.
The Mother has not made submissions as to the form of the orders if she is not successful and the Father has addressed only a 4/10 arrangement. I will provide the parties with draft orders and a limited opportunity of a couple of hours to consider the practical nuts and bolts of a 5/9 arrangement and make submissions to me.
THE DRAFT ORDERS AND SORTING THE ‘NUTS & BOLTS’ OF TIME
I delivered these reasons and orders (at 10.00am) in draft form to the parties on the morning of 22 December 2021 to give them an opportunity to address issues as to which days would constitute the 5/9 arrangement and make submissions as to childcare. The parties were very capably represented by their solicitors who appeared in the difficult circumstances of clients learning of decisions contrary to what was sought over a long hearing and significantly so for the Mother. The detailed minutes of proposed orders received from each party (the last received on 28 August 2021) did not address any alternatives, only what the arrangements should be when his or her case was accepted.
The matter was stood down until 10.50 am to start with and the parties requested further time so the matter was recalled at 2.26 pm when the parties requested further time. The matter was recalled at 3.33 pm in the afternoon and I heard further short submissions about how the child’s time with each parent would be structured within the framework of my draft reasons.
The dispute related to two issues related issues. The Father sought that the child’s time be over the Monday night in one week and over an extra long weekend from Friday afternoon until before kindergarten on the following Tuesday. This meant that the longest gap the child would go without seeing her Mother would be 5 days or 6 nights from the Tuesday morning after the long weekend until the following Monday afternoon of the one night block of time. The Mother sought a block of 5 nights each fortnight, from each alternative Friday evening until the following Wednesday Morning.
The Father sought that the child attend the kindergarten close to where he lives on Monday’s Tuesday’s and Friday’s and a somewhat distant childcare centre on Wednesdays and Thursdays that was convenient to him to and from his way to work. The Mother sought that the child attend the existing child care centre close to her home. In accordance with section 144 of the Evidence Act I had regard to the 2021 Melways street directory (and advised the parties I was doing so) and attempted to take account of the inconvenience of any arrangement to the child and either parent. Implicit in the Mother’s proposal was that the 5 night block worked if the child attended the child care centre close to her home during her time with her. The advantage of that child care centre was the continuation of the settled relationships in that centre with peers and educators. That child care centre had done a splendid job dealing with the parent’s conflict over a long time. The ICL identified the advantage of a block period with less changeovers and the disadvantage of a longer period away from a parent.
Balancing all those matters I determined that the Father’s ultimate (more practical for the Monday than his final minute of orders) proposal would best advance the child’s interest. That was and is because of the minimising of the time for the child away from the Mother in circumstances where the child has lived most of her life with the Mother and to ease and assist the child with adjustment from one regime to the other. The Father’s one night in Week 1 and four nights in Week 2 proposal mean that the child until the school holiday regime starts will be away from the Mother for no more than five nights or six days on the Father’s proposal and on the Mothers proposal there would be a gap of eight days or nine nights.
I also took into account the advantage to the child of attending one kindergarten close to where she will start school and one child care centre. The Mother will not be required to deliver or collect the child from the somewhat distant child care centre. I also took account of the child being settled at the child care centre she attended close to the Mother’s home and to the reality for working single parents who must also cope with the demands of a professional work life. I took into account the significant inconvenience to the Mother of the Father’s proposal and she addressed me herself at times. The inconvenience to the Mother of the Father’s proposal weighed heavily on me and I told so the Mother. The parties live sufficiently close to make the Father’s proposal workable and sufficiently far apart to make the Father’s proposal inconvenient to the Mother.
Balancing all of those matters, it was and is my decision that the Father’s proposal of the one night in Week 1 and four nights in Week 2 will follow and those nights time should commence at the times set out in the Father’s proposed amendments.
I decided Order 16 relating to the childcare and kindergarten would be made as proposed by the Father.
When announcing my decision the Mother interjected that she could not be at the kindergarten on a Monday afternoon and visions of the 18 March 2020 orders debacle flashed before me. I stood the matter down and again and asked the parties to work out a practical solution. The matter came back at 5.00pm and the Father had a practical solution to the problem but with more time the Mother was able to work out that with some trouble she could accommodate the propped orders. Further time was taken making sure there was no disagreement about changeover between then and Christmas Day and the kindergarten drop off and pick up times based on the Father’s proposal. The matter concluded at 5.17pm on 22 December 2021.
I now publish these final reasons and make the orders.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Dated: 22 December 2021w

File number:	MLC 8055 of 2017
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	22 December 2021
Catchwords:	FAMILY LAW – Final parenting – live with arrangements – parental responsibility – sexual abuse allegations made and withdrawn – one parent with continuing belief that sexual abuse has occurred – multiple experts do not find risk – long history of parental conflict and litigation – risk that parental relationship with the other parent will not be supported – effect of change of living arrangements on the child – nuts and bolts of time arrangement.
Legislation:	Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Cases cited:	Fox v Percy (2003) CLR 118 Milton & Milton [2021] FamCAFC 64
Division:	Division 2 Family Law
Number of paragraphs:	235
Date of last submission:	22 December 2021
Date of hearing:	22, 23, 24 & 26 March 2021 21 May 2021 6 & 13 August 2021 22 December 2021
Place:	Melbourne
Counsel for the Applicant:	Ms M Smallwood SC
Solicitor for the Applicant:	Peter Lynch
Counsel for the Respondent:	Mr A Barbayannis
Solicitor for the Respondent:	Farrar Gesini Dunn
Counsel for the Independent Children's Lawyer:	Ms P Villella
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 8055 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BAHL Applicant
AND:	MS BAHL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	22 DECEMBER 2022

Exhibit No.	Description
22 March 2021
F1	Audio recording of Mother and child (said to have occurred on 19 February 2021)
F2	Mother’s chronology of recordings (note – exhibit WG2 – 8 March 2021 affidavit)
F3	Three video recordings (videos with title ending #655, #854 and #045)
M1	Bundle of four subpoena search forms of 2019
23 March 2021
C1	Subpoena to Doctor at Suburb B Medical Centre (document 14 on the court file)
M2	Pages 19 and 20 (of 22) of letter dated 20 May 2017 to Suburb B Medical Clinic
M2A	Pages 21 and 22 (of 22) of letter dated 20 May 2017 to Suburb B Medical Clinic
M2B	Scrunched up copy of the document dated 20 May 2017
C2	Subpoena to Proper Officer at Suburb B Medical Centre
M3	Page 14 (of 22) read to the Father during cross-examination
M4	Page 15 (of 22) read to the Father during cross-examination
M5	Page 34 and 35 of material produced by O Hospital subpoena
M6	Pages 52-56 (of 157) of the material produced by P Contact Centre subpoena
M7	Pages 61-71 (of 157) of the material produced by P Contact Centre subpoena
M8	Pages 124-127 (of 157) of the material produced by P Contact Centre subpoena
M9	Annexure E, G and N of Mother’s affidavit of 30 April 2019
M10	Text message between Mother and Father dated 19 March 2021
M11	Text message between Mother and Father dated 14 March 2021
M12	Text message between Mother and Father dated 5 March 2021
M13	Text message between Mother and Father dated 30 August 2020
24 March 2021
C3	Court Orders of 24 May 2018 and 20 August 2019
ICL1	Aide memoir of largely mostly agreed transcript of conversation between the Mother and child (disagreements marked in red).
ICL2	Bundle of medical documents
M14	Letter from Kenna Teasdale (agents) dated 13 October 2017 who inspected file on behalf of Mother’s solicitor at the time.
M15	Bundle of documents of correspondence dated February 2021
F4	Email from Father to Mother dated 23 March 2020 (Mother says this email went into her spam folder)
26 March 2021
F5	Eczema photograph and email from Mother to Doctor dated 21 June 2018
F6	Statutory Declaration of Q dated 25 February 2021
F7	Bundle of documents produced by R Health (28 pages)
6 August 2021
ICL3	Email from Counsel for the ICL (Ms Villella) dated 16 June 2021 attaching transcripts (with descriptions)
ICL4	Transcript (without descriptions)
13 August 2021
ICL5	Section 11F Child Inclusive Conference Memorandums (see transcript page 524)
F8	Subpoena search forms
F9	Father’s email of 13 August 2021 with his home address (not to be disclosed)
30 August 2021
M16	Minute of final orders sought by the Mother
F10	Minute of final orders sought by the Father
ICL6	ICL’s marked up minute of final orders sought
22 December 2021
C4	Email chain between Associate and parent’s solicitors regarding whose week it is
C5	Draft orders provided by the court
F11	Father’s marked up (in red) version of draft orders provided in the afternoon of 22 December 2021