Batala & Jenner - [2021] FCCA 1675

FEDERAL CIRCUIT COURT OF AUSTRALIA
Batala & Jenner [2021] FCCA 1675

File number(s): NCC 1512 of 2019

Judgment of: JUDGE TERRY

Date of judgment: 20 July 2021

Catchwords: FAMILY LAW – parenting – where the father is seeking an order which would enable him to spend time with his daughter aged 6 – where the child has not spent time with the father since she was 2 – where the mother alleges that the father perpetrated family violence including sexual violence and poses a risk of sexual harm to the child – where the mother’s allegations about risk of harm to the child were independently investigated on two occasions and not substantiated – where the court cannot find that the father poses a risk of sexual harm to the child – where the court cannot be satisfied on the balance of probabilities that the mother was a victim of family violence including sexual violence and cyber stalking – where the mother is strongly opposed to the child spending time with the father and the child is currently unwilling to do so – where the parties live in different states – where given the time that has passed, the distance the parties live apart and the mother’s entrenched views the situation may be difficult to turn around – where the Independent Children’s Lawyer proposed an order that the parties attend family therapy - family therapy ordered but with a sunset clause – application for change of name – mother’s surname to be added as the child’s last name

Legislation: Family Law Act 1975 (Cth), s 60CC

Cases cited:
Reynolds & Sherman [2015] FamCAFC 128

Ryan & Burnett [2008] FamCAFC 72

Flanagan & Handcock [2000] FLC 93-074

Number of paragraphs: 223

Date of last submission/s: 14 May 2021

Date of hearing: 2 & 3 March and 13 & 14 May 2021

Place: Newcastle

Counsel for the Applicant: Mr Williams

Solicitor for the Applicant: ALJ Legal

Counsel for the Respondent: Ms Kaiti

Solicitor for the Respondent: Tee Legal

Counsel for the Independent Children's Lawyer: Mr Guyder

Independent Children's Lawyer: Krstina Wooi Lawyer
ORDERS

NCC 1512 of 2019

BETWEEN:
MR BATALA

Applicant

AND:
MS JENNER

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:
1.For all purposes the child X born in 2015 shall be known henceforth as X BATALA (“the child”).
2.The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X BATALA born in 2015 to X BATALA-JENNER.
3.The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 2 above is to do all acts and things to register the change of name of X BATALA born in 2015 to X BATALA-JENNER pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
4.Subject to orders 5, 6 and 7 the mother shall have sole parental responsibility for the child.
5.The mother must notify the father in writing of any major long term decision she makes for the child promptly upon the decision being made.
6.The father is at liberty to liaise with the child’s school or preschool as to the child’s progress and to receive copies of all reports, newsletters and photographs at their own expense.
7.The father is at liberty to liaise with any medical or allied health professionals involved with the child and obtain information about the child’s health and medical treatment and the mother shall notify the father of the contact details for each medical or allied health professional.
8.Each parent shall promptly inform the other parent in the event of the child while in their care is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed with a serious illness.
9.Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parents’ family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.
10.Each parent shall keep the other advised of their mobile telephone number and email address and shall notify the other party of any change to those details within seven (7) days of the change occurring.
11.Within 7 days of the making of these orders the parents shall do all such things and sign all necessary consent, intake forms and authorities to engage the child in therapy with Mr B of C Counselling at D Street, Suburb E or other such child psychologist as may be agreed between the parties, for the purpose of restoring a relationship between the child and the father and implementing the ‘spends time with’ periods referred to in order 16 below.
12.The father shall pay the costs of the provision of the therapy.
13.Each of the parents shall ensure that the child remains engaged with the therapy for a period of no less than three (3) months, or such further period as recommended by the therapist appointed in order 10 above, with appointments to be scheduled at the discretion of the therapist.
14.The father is permitted to provide to the therapist copies of these orders, the judgment and the Family Report prepared by Mr F.
15.If the therapist, in their discretion, requests the attendance of the father upon the therapy by way of interview, or by way of electronic communication with the child, then the father is permitted to attend upon such therapy.
16.At the expiry of three months from the commencement of the therapy referred to in order 11 above, and for a period of 12 months thereafter the child shall spend time with the father every third Saturday from 11.00am until 2.00pm with such time to be supervised by G Children’s Contact Service or such other service as is available.
17.The time the father spends with the child pursuant to order 16 shall occur in the City H area.
18.Thereafter the child shall spend time with the father as agreed between the parties.
19.Following three visits pursuant to order 16 which are successful in that they occur and take place for the full duration of the time provided by the supervision service the father shall have telephone and video communication with the child on one occasion each week at times to be agreed between the parties and failing agreement each Tuesday between 5.30pm and 6.00pm NSW time and for that purpose the father shall place a call to a number provided by the mother to the father and the mother shall make the child available to receive the call.
20.If at the end of 9 months no supervised visits have taken place between the child and the father or some supervised visits have occurred but the time has broken down or the service has declined to further provide a service then the orders about the father spending time with the child are discharged.

IT IS NOTED THAT the father would in due course like the child to spend holiday time with him in Victoria. If time between the father and the children in City H is successfully introduced the parties are urged to attend mediation so that they can discuss the progression of the child’s time before further legal proceedings are commenced.
IT IS NOTED that publication of this judgment under the pseudonym Batala & Jenner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves X, who is six and who lives with her mother. She has not spent any time with her father for four years and has not spoken to him on the phone for over three years. She declined to see him at the family report interviews in December 2019 and said that he had hurt her mother and she was afraid of him.
The father filed an application in May 2019, two years ago, seeking an order that X spend time with him.
The mother filed a response seeking a no time order. She said she was strongly opposed to the father spending time with X because he had perpetrated a range of family violence including sexual assaults, physical violence, threats and cyber stalking. She also raised the spectre of the child possibly being at risk of sexual harm from the father and said that as a result the idea of X spending time with him was intolerable to her.
In addition she said she was afraid that if he once got X into his care he would take her to India or at the very least, not return her to her mother.
The father denied the allegations, but the nature of the extent of them and the fact that by the time the father filed his application X had not seen him for two years meant that this matter was not suitable for interim orders and a family report was ordered.
The report was prepared reasonably promptly, within six months of the father filing his application, and it was clear from the report that the matter needed a trial, because alternative recommendations were made depending on the court’s findings about risk.
Unfortunately due to lack of judicial resources the matter could not be heard until earlier this year.
At trial the father denied the allegations that he had perpetrated family violence. He said that the parties had a robust and adventurous sex life in which the mother was an active participant and that he did not commit any acts of sexual violence. He strongly denied any suggestion that the child was at risk of sexual harm from him and he denied stalking the mother, and save for admitting that there was an incident where he and the maternal grandmother had a tussle over a phone, denied other violence including any forms of control or cyber stalking.
The father said that the allegations were a beat up by the mother who had never been willing for him to have a relationship with X.
X was seven months old when the parties separated. The father said that he was able to see her over the next 18 months but the mother usually insisted on being present. It was his case that she had harboured some hopes of continuing a relationship with him and when it became clear that was not going to happen she set out to vilify him and turn X against him.
The father could not but concede that the situation had not been helped by him moving back to Melbourne but he said he had kept in touch with X by phone until the mother thwarted that as well.
It was the father’s case that the only reason the child said did not want to see him at the family report interviews and thought he was bad and dangerous was because of the things the mother and the maternal grandmother had been drilling into her.
The father said that it was particularly important that X be able to spend time with him because he was Indian and she needed to be connected with that part of her culture. He said he was willing to start slowly. In his application he proposed some supervised time in City H, followed by some time during the day in the City H area, leading up to X spending school holiday time with him in Melbourne.
At the beginning of the trial the mother was seeking a no time order. At the end of the trial her counsel said that she had an alternative proposal, namely that the court should make an order that the child spend time with the father by agreement between the mother and the father.
The mother’s counsel said that the mother sought that order in case X expressed a wish to see the father when she was older. If that order was made the mother would not be in breach of an order if she permitted that to occur. However there was no sign that the mother was willing to facilitate time or that X was expressing any wish for time and as I indicated to her counsel, that order was simply a masked no time order.
The family report writer said that the court needed to determine risk but that if it found that there was no risk of harm the child would need to be engaged in counselling before being introduced to the father. He also recommended that time then occur only if the counsellor recommended it and that it be supervised for 12 months while the child adjusted.
At the end of the trial the Independent Children’s Lawyer submitted that the court should not give up on the possibility of X having a relationship with her father.
Counsel for the Independent Children’s Lawyer submitted that the court could not find that X would be at risk of harm in the father’s care and that it was in her best interests to be introduced to him. He tendered a Minute of Order in which it was proposed that the parties be ordered to engage with Mr B at C Counselling or another agreed psychologist for the purposes of family therapy. It was proposed that following three months of therapy the child spend time with the father supervised by G Contact Centre, a private supervision service, every third Saturday from 11.00am until 2.00pm and that commencing in the Term 1 school holidays in 2022 she spend time with the father in Melbourne during the school holidays.
It was also proposed that at the end of three months of therapy telephone communication commence.
The father’s counsel largely adopted that proposal in final submissions although he said the father would like the telephone communication to be video communication.
The other issue in dispute at the end of the trial was whether the child’s name should be changed from X Batala to X Jenner. During submissions the mother’s counsel said that the mother would agree to a hyphenated surname as long as her name, Jenner, was the last part of that.
I will return to that issue at the end of the judgment because it is somewhat complex.
The evidence
The evidence the mother’s case was given by the mother, the maternal grandmother and the maternal Uncle Mr J.
In the father’s case evidence was given by the father, his partner Ms K and by Ms L who was a housemate of the father’s on the Region M in 2016.
A family report was prepared by Mr F, a Regulation 7 family consultant.
Ms K was not required for cross-examination but the other witnesses were cross-examined.
A tender bundle was provided to the court and at the end of the trial, each counsel identified the documents from the tender bundle they wanted the court to read. There were also some other tenders, including a USB.
I have to make some difficult determinations in this matter about things that have occurred and the mother’s evidence presents a particular challenge to the court.
The mother filed an extremely lengthy affidavit. It was 81 pages long and contained 392 paragraphs and there were a large number of annexures attached to it. In her affidavit the mother said that she had changed solicitors because her previous solicitor did not want to put all this information forward and she wanted to tell her whole story.
Regrettably the affidavit contains lengthy paragraphs which are completely irrelevant. An example is paragraph 27, which is over 2 pages long.
Filing such an affidavit does not help a party’s case, it actually hinders it. There is a risk that important points are going to be missed by the court when it is swamped with unnecessary and irrelevant detail. Another difficulty for the mother is that even after filing an affidavit which she said contained, at her insistence, every skerrick of the information she wanted to put before the court, she was still successfully challenged in cross-examination on a few occasions about the fact that some of the information in the answers she gave was not in her affidavit. If there had been some culling of irrelevant material the mother might not have forgotten those more important matters.
Another concern about the mother’s affidavit was that she annexed text messages and WhatsApp exchanges in support of statements she made in her affidavit but when I read some of them, and I couldn’t read them all given the massive amount of material, it often turned out that the material in the annexures did not support her case. On other occasions the text messages and the WhatsApp exchanges were just the mother saying the same thing that she reiterated in her affidavit and the father saying nothing which was an admission or responding mildly.
One of the interesting comments the mother made in cross-examination was that the father was someone who tended to avoid arguments rather than go looking for them.
An example of the mother saying something in her affidavit which was not supported by information in the annexures was that she made a the broad statement that the father became upset if he found out she had spoken to or spent time with her friends and had told them about his isolating or controlling behaviours. In support of this she relied on a text message exchange which is exhibit M to her affidavit. In that exchange the father asked the mother not to tell her friends everything about their life. That is not an unreasonable thing for someone to be saying and it does not support the veracity of what is in paragraph 97 of her affidavit.
The complaint by the father which the mother recited in the following paragraph is understandable and does not suggest controlling behaviour.
The mother gave evidence in her affidavit about X’s interaction with the father on the phone which was inconsistent with material on a USB. She had clearly had not reviewed the USB before she made the statements in her affidavit.
Another concern with the mother’s affidavit is that she recited at considerable length conversations she alleged she had with the father in 2014. Sometimes they went on for half a page, and although she said that they were “words to the effect of” they were set out as if they were verbatim conversations.
The mother said she did not start a journal until 2015. There was no evidence that she had a record of what was said in 2014 and there is a considerable risk that what she set out at such length is not accurate and is coloured by the case she now wishes to present to the court.
An additional issue is that while the mother filed a vast affidavit and said that this was because she wanted to put everything before the court, it turned out that there were other text messages which were eventually tendered in the father’s case which did not assist her case. It may be that she did not have them for some reason but it does create a concern in my mind.
Some of the evidence given by the mother’s family did not assist her, for example the evidence of her brother about what happened in relation to some pushing.
The father was not always a reliable witness either. His evidence about whether X was in bed when he had sex with the mother was an example of that, but there were not the same problems with his affidavit.
Against that difficult background in relation to the evidence I am going to have to make some findings about allegations, but before I do that I just want to refer to the background to the matter.
Background
The mother and the father met on a dating website in 2014 when they were 25 and 26 respectively. The mother grew up in Town N in New South Wales but in 2014 she was living and working in Melbourne. The father is Indian. He had migrated to Australia in 2007 and in 2014 he was also living in Melbourne.
The parties began a sexual relationship and began spending time at each other’s places and four or five months into the relationship the mother discovered she was pregnant. It was unplanned and the mother suggested the father was initially unhappy about it but that is not uncommon and the mother’s own evidence suggests that he rapidly warmed to the idea of having a child.

In 2014, when the mother was five months pregnant, she returned to Town N. The father did not object to that. There was some dispute about whether it was intended that he join her but nothing now turns on whether that was intended, the fact is that in 2015 he relocated to Town N and he and mother commenced living together at the maternal grandmother’s home.
In 2015 they obtained their own rental and X was born in 2015.
At trial the mother alleged there was violence in the party’s relationship in Melbourne, mainly sexual violence but also some threats and abuse by the father. The extent to which that is true is something I will have to consider later.
There were issues between the parties in Town N. The mother alleged that there was an incident where she was pushed and she alleged stalking and control. Another problem that arose was that the father and maternal grandmother did not get on and there was some issues between them.
On 12 June 2015 there was an incident when the mother wanted to end the relationship and leave the home with X and the father said she could go but not take the child. The police were called but they did not take any action and the parties continued to live together.
The unhappiness and the arguments continued however and in late 2015 the mother ended the relationship and moved in with the maternal grandmother. X was then seven months old.
On any view the parties had a short, unhappy relationship. That is true regardless of what I find about allegations of violence, and that is never a good situation in terms of children having an ongoing relationship with both of their parents.
After separation the father moved to Suburb O, a suburb of City H. There was another incident on 13 December 2015. The father came to the mother’s home to visit X. The maternal grandmother showed up. She was sitting on the lounge filming the father. The father tried to take the phone. There was push and shove and the father and maternal grandmother both alleged the other was the aggressor. I will refer to that incident again later. The father reported it to the police but he told them he did not want to do anything about it. The maternal grandmother did not report it to the police.
The father spent time with X during 2016. There was a dispute about how much time that was. She was still very little. He said that it was several times a week, mostly with the mother present but sometimes on his own. The mother denied that it was that frequent and said it was very rare for the father to have X on his own. I cannot resolve that dispute.
In September 2016 there was an allegation about possible sexual abuse and the mother stopped time but the parties went to mediation in December 2016 and time resumed.
In December 2016 the father moved to Suburb P on the Region M and he moved in with Ms L who gave evidence for him at trial and who had a couple of young children. The mother said that they were in a relationship. The father and Ms L denied it and I cannot make a finding that was the case. X spent time with the father at the house in Suburb P and the mother stayed over on occasions.
In June 2017 the mother and father resumed their sexual relationship and for about a week the father lived with the mother. However that ended, and at the end of June 2017 the father moved to Melbourne.
The father said that he thought that there was an understanding that the mother would also move to Melbourne. The mother said there was never any thought of that. I consider it very unlikely that the mother would have agreed to that. The father may have believed it to be the case but if he did it is difficult to accept that it was a reasonable belief given the fact that the mother was then living where she had grown up close to the maternal grandmother. The likelihood of the mother ever agreeing to move to Melbourne was remote. In any event, she did not move and thereafter the father lived in Melbourne and the mother lived in Town N.
The mother facilitated some phone and video communication with the father after he relocated but the father said, and there is some reason to believe this is true, that she said and did things which either distracted the child or discouraged her from taking part in the calls and there was no dispute that in March 2018 the phone communication ceased.
The mother formed the view after the father went to Melbourne that he had found some means of accessing her devices or was using spyware to spy on her. She went to the police about this a couple of times but apart from suggesting that she reset her devices the police said they could not help her and as I will note later on in the decision there is simply no basis for a finding that the father was in fact making any attempt to stalk or spy on the mother.
In January 2018 the father formed a relationship with Ms K and in December 2018 he and Ms K commenced living together.
Nothing much happened with the parenting matter. The father said that he pursued Legal Aid and could not get it and it was not until May 2019, two years after he had moved to Melbourne, that he filed an application in this Court seeking parenting orders, and that delay has implications for what the Court can now do with the matter.
The parties circumstances
The father continues to live in Melbourne with his partner. He is a tradesman. His partner gave evidence that their relationship was strong and about her commitment to living in Melbourne. It is also the father’s commitment, so there is no likelihood the father will ever move back to this area.
The mother is living in her own rental in Town N with X. She has not re-partnered and she continues to live close to the maternal grandmother and the maternal uncle. She was doing some study. Apart from that she is engaged in home duties.
X is now six and she has commenced school.
Specific Issues
Any orders I make about X must be determined treating her best interests as the paramount consideration but before I consider the matters in section 60CC (2) and (3) of the Family LawAct which are relevant to determining her best interests I intend to make findings about some of the allegations in the case because they are relevant to a variety of the section 60CC (2) and (3) considerations.
The allegation that the father poses a risk of sexual harm to X
The mother referred in her affidavit to numerous things which she said supported a finding that the child may be at risk of sexual harm from the father.
She referred to X having had bleeding from the vagina and rectum when she was three days old. There is subpoena material about her being taken to hospital in regard to that. The father said, and the hospital notes seem to confirm, that there was a suggestion this may be a hormonal bleed.
There is nothing in the subpoena material to suggest that sexual assault was suspected at the time.
The mother and the maternal grandmother, and I think particularly the maternal grandmother, suggested that they were told things at the time which gave rise to that suspicion but the hospital did not make a notification and I do not accept their evidence that this concern was raised with them at the time.
The mother also alleged that the father pointed a phone at the child’s genitalia during a call to India and that in a call from India he pointed the phone at the genitalia of a naked child in India, giving rise to a concern in her mind about his interest in young children.
She also said that in April 2016 the child had a urinary tract infection which raised her suspicion that the child may have been sexually assaulted and she made reference to some things the child had said about being touched.
The mother said that her concerns were heightened by something Ms L said to her about the father’s behaviour to her daughter Q.
After the father went to Melbourne the mother persisted with her view that he may have sexually interfered with or sexually abused the child. This led to the child being medically examined and a JIRT investigation being conducted but there were no finding that sexual abuse had occurred.
It is impossible for me to find on the balance of probabilities that the child is at risk of sexual harm from the father. The hospital records from April 2015 do not suggest the hospital had a concern in that regard. The alleged pointing of the phone could have any number of innocent explanations and the mother could be jumping to conclusions. The touching the child alleged could have been in connection with care aspects such as changing the child’s nappy.
There is a very high risk that the mother is jumping to conclusions and joining the dots to make, as I indicated during submissions, an elephant when the dots could also have been joined to make a bird.
The family report writer referred to this issue in his report and said as follows:
At times these allegations made by mother have simply been based on the mother’s observations of blood in the child’s stool, or the fact that the child’s genitals looked different. There is no criticism of the mother made by the report writer for acting upon such concerns or observations, however, it is a highly significant allegation to accuse the father of abusing and molesting the child, particularly considering that the child has never made any specific disclosures.[1]
[1] Family Report paragraph 94
I cannot be satisfied that the father has ever acted sexually inappropriately with the child or that he is someone who has a propensity to have an unhealthy interest in young children. The evidence simply does not allow me to make those findings on the balance of probabilities. Is does not even get to the point where it raises a red flag which means that I need to be cautious when I assess risk, and I want to stress that it is not just a case of me saying that I cannot find on the balance of probabilities that sexual abuse has occurred, it is significant that these allegations have been investigated twice and have not been substantiated.
The mother’s doctor was supportive in giving her a referral to the hospital to have one investigation take place. There was an investigation involving a JIRT team. The child has been physically examined and nothing has been observed which suggests sexual abuse and the child has made no disclosures.
The mother’s counsel conceded during submissions that it was simply was not open to the Court to make a finding that there had been sexual abuse and I cannot make a finding that there is any unacceptable risk of sexual abuse.
The allegations of family violence
The mother’s allegations of family violence are wide-ranging and they cover different kinds of behaviour.
In terms of the father’s behaviour in Melbourne in 2014, to summarise the relevant parts of the mother’s material as best I can, the mother alleged that the father talked about the ways in which he could kill someone without detection. She said that he shouted in her face and shoved her hard into the wall of a walk-in wardrobe. She said he would slap and pinch her on the face, thighs, stomach, breasts, buttocks and back when she was pregnant and would hurt her.
She said he slapped her hard on the thigh with an open hand when she was pregnant and when she started to cry he filmed her. She said he would punch her back, buttocks and vagina during sex. She said she asked him to stop as he was hurting her and he would not. She also said that he bit her ears, hands, breasts and buttocks and pulling her hair during sex and causing her injuries and repeatedly took photos and videos of her in the shower without her consent.
The mother said that after the parties’ commenced living together in Town N the father pushed her around and she referred to an occasion when she said he slapped her on the buttocks and her pregnant belly hit the kitchen bench.
She also alleged the father verbally abused her. She alleged that he was very controlling about money and that he forced her to tell him all her passwords to social media and would constantly hack into and access her personal data without consent.
The mother said that in mid-2015 the father bought a second mobile phone and told her it was so he could listen to her conversations at home while he was at work. He said he would call the second phone from his phone and put it on loudspeaker and listen to her in the house through headphones. The father admitted saying this but he said he never carried out the plan.
The mother said that after the father went back to Melbourne in June 2017 he still seemed to know everything about where she was and that her Apple ID was used in Victoria. She went to the police about that and she was advised to reset everything and search for devices. She said she found the father’s laptop in her home and that it was still on and that it had a USB attached to it. I am not sure that I totally understand that evidence but she certainly believed that the father had done that in order to spy on her in her home.
The father denied most of the allegations. He admitted buying the phone for the purpose of trying to find out what the mother was saying about him when he was not home but he said he did not use it. In relation to the allegations about the sexual violence in Melbourne, the father said that the parties had a robust sex life but the mother consented to what happened during the relationship including the filming.
The father denied pushing the mother in Town N. He did admit that there was some arguments and indeed his counsel in submissions characterised that as verbal violence.
The father said that he was not mean with money and that money was tight because he was the only person working and he simply wanted to make sure that expenses were covered. He denied that he tried to stop the mother socialising. He said he just took issue with her talking about their personal matters with her friends and her mother, and the messages the parties exchanged tend to support that version of events. He denied pushing the mother into the kitchen bench when she was pregnant and said if he had done that she would have gone to the doctor immediately seeking advice.
The father’s over-arching position was that the mother was jealous and insecure and was resentful of him for not staying in the relationship and had made things up or put on a spin on consensual activities to make it look as if he had assaulted her and that she was also motivated by revenge and was using these allegations as a weapon to keep him out of the child’s life.
Assessing the truth of the allegations poses a considerable challenge. The mother has clearly now convinced herself that her allegations are true and that is a problem in itself in this case. Nevertheless I have to consider whether there is any objective evidence to support her beliefs.
I mentioned earlier the difficulties with the mother’s affidavit. She is now asserting that she remembers in great detail conversations that occurred in 2014. I have considerable concern that this is not the case, and that the conversations she sets out at length may be reconstructions, which are set out to align with her current belief that she was a victim of family violence.
The allegations about the father committing sexual violence are difficult to accept because of some of the mother’s evidence about what happened during their relationship. She admitted that there was an unusual edge to their relationship and said as follows:
Our relationship was amazing in the beginning. Mr Batala really seemed like a great guy and he treated me well. He took me out to explore Melbourne and went out of his way with me to buy food for homeless people and took interest in charity events I was interested in. He acted like the perfect gentleman and seemed to have a heart of gold. We had a lot of fun together and shared lots of uncouth inside jokes.[2]
[2] Mother’s affidavit paragraph 29
She also said as follows:
I recall an incident in around August 2014 where Mr Batala swore at me in Hindi one day. He said to me words to the effect of: “Chut chaat meri, chutiye!” which translates in English to “Lick my pussy/vagina, you cunt!” This phrase became an inside joke between us after I repeated it back to Mr Batala not knowing what it meant one day. The phrase became something we often joked about and said to each other in playful conversation interchangeably in both English and Hindi. Pages 26 and 36 of the evidence Mr Batala put forward on 6 July 2020 are two occasions when I said this to Mr Batala. I am unsure why he has included it as evidence. Neither conversation was bitter or untoward between us, nor was the phrase one that was ever used to insult, aside from the first time Mr Batala said it to me.[3]
[3] Mother’s affidavit paragraph 56
During cross-examination the mother agreed that the parties had rough sex and that there was consent to a point, for example about hair-pulling, but she said the father went too far.
She agreed that there were times where they would speak quite crudely to each other and would use the word “cunt” in a joking way and “bitch” in an affectionate way.
The mother was asked in cross-examination something along the lines of:
So you wanted a relationship with the father in Town N, notwithstanding the horrific violence?
Her response was:
It wasn’t horrific violence up ‘til then. It got worse when we lived together in Town N.
One of the other difficulties is that on the mother’s own evidence she did not consider that she had been sexually assaulted by the father until after the relationship ended. She said that it was not until a friend suggested that she view a particular program on Netflix that she formed the view that she had been a victim of family violence.
The mother’s evidence about being a victim of family violence is also undermined by her behaviour after separation. She frequently spent time with the father, including overnight time. He came to her home, and the mother’s complaints about his behaviour were not in connection with him being violent or terrifying her but over things such as him making curry on Christmas Day which she found to be unwelcome and inappropriate.
In answer to a question in cross-examination about whether she was frightened of the father after separation, one of her answers was,
I was terrified of him, but not that heavily.
The father tendered a text message the mother sent him on 30 March 2017 which casts a very different light on the nature of their relationship in 2017 to that contained in the mother’s affidavit.[4] I have decided against including this explicit exchange in these reasons for judgment but I intend to have the Exhibit containing the exchange placed in a sealed packet and will make an order that it be kept with the file and not returned to the party who tendered it.
[4] Exhibit I
The evidence of Mr J, the maternal uncle, also did not support the mother’s evidence entirely. He talked about some incidents between the parents as being playful gestures, rather than family violence.
The fact that the mother filed a very lengthy affidavit and left out of it some text message exchanges which did not support her case does make me reflect on whether the mother is in fact telling the truth about a lot of the things she says occurred in the past.
The mother on her own evidence was very jealous during the relationship and believed that the father was having affairs and contacting other parties online. That was a source of anguish to her and it makes me question whether there was in fact family violence during the relationship, or whether it is a slant the mother now wishes to put on the case and whether her view that the father let her down has motivated her to make allegations about him which are simply not true.
The mother went to the police on a number of occasions after the father went back to Melbourne but her complaints when she did were either about her fear that he might take the child to India or about her concern that the father might be stalking her through a device that had been left in her house or access to her mobile devices. She did not make any allegations about sexual violence or any other kind of violence until well after the father went back to Melbourne.

There are some matters which do not assist the father in relation to the allegations. His evidence about whether X was in the bed when he had sex with the mother turned out not to be accurate. He admitted buying the phone to track the mother and although he said he did not actually use it, it was certainly enough to awake suspicion in the mother about what he might be capable of doing in terms of tracking her with devices.
He did admit to filming the mother on some occasions without permission, but he said that there was a general understanding between them that filming was permitted and that when he did it without her permission on a particular occasion it was because he assumed there was an underlying consent to the filming taking place.
There is also the fact that in final submissions, the father’s counsel admitted that there had been verbal violence between the parties, although he said that was a two-way street.
There are some things that the father said which do not particularly assist him but based on the evidence as a whole I cannot be satisfied on the balance of probabilities that the father ever sexually assaulted the mother, either in Melbourne or anywhere else, although the allegations of sexual violence were largely confined to what happened in Melbourne.
In June 2019, after the father commenced these proceedings the mother made a complaint to police about having been sexually assaulted but the father has never been charged and I commented during the trial that after hearing the mother cross-examined I considered it very unlikely that any Court would ever convict the father of sexually assaulting the mother.
Of course the criminal burden of proof is higher. I only have to be satisfied on the balance of probabilities. However I cannot be satisfied on the balance of probabilities that the allegations about sexual violence or physical violence and threats have been made out. There is a considerable likelihood that the mother is now reconstructing what happened during the relationship, reframing it into assaults and forgetting her part in the parties’ sex life and casting the father as an aggressor.
The allegations the mother made about control of money or the father denying her contact with family and friends simply are not made out on the evidence, and the allegation about the pushing in Town N I cannot find occurred, especially given the evidence of the mother’s brother about what he observed the parties doing during the relationship.
In relation to the cyber-stalking, it is disquieting that the father made the admission about the intention to use the phone. That was an intention to stalk, although it was not a very sophisticated form of it, and the father was certainly very sensitive to people talking about him or the mother talking about him to others. I am not going to excuse it but I do not accept that the fact that the father did that means that I can then find that he took any other steps to stalk the mother once he moved back to Melbourne.
I cannot be satisfied that the mother’s allegations about the violence are true. The implications of that for the matter though are complex and I will discuss that later in the judgment.
There was some family violence committed by the father in relation to the maternal grandmother. There was no dispute that he called her a “fucking disabled cunt”, and my recollection of the evidence is that this happened on more than one occasion.
There was also the incident in December 2015 when the father came to the mother’s home to visit X and the maternal grandmother turned up and sat on the lounge filming him.
The father asked her to stop. She would not and he initiated a physical struggle over the phone. In that struggle the phone broke and the father said that he was scratched and his shirt was ripped off his back. However the father initiated that incident, not Mrs Jenner. Certainly attempting to film him was provocative but it did not require the response that the father engaged in. The father was responsible for what happened and he committed family violence on that occasion.
After that incident the father went to Suburb O Police Station to make a complaint but he told the police he just wanted to report it and did not want the matter pursued. The maternal grandmother did not go to the police, but she kept the broken phone in a box where it has been viewed by X. Why she did that is difficult to understand.
X’s best interests
Against the background of those findings and other matters in the evidence I have to consider X’s best interests. That requires me to consider the primary and additional considerations in section 60CC (2) and (3) of the Family Law Act and I am going to start, as I often do, with the additional considerations.
The first of the additional considerations is 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 to be given to those views.
X was interviewed by the family report writer and it was clear that she did not have a very good view of the father. The family report writer said as follows:
The child was asked what she enjoys doing, and the child replied that she likes playing with paints and craft, likes going to pre-school, and likes playing outside. The report writer discussed ‘families’ with the child, referring to Mums and Dads, and then asked the child about her family. The child stated that she lived with her Mum, and liked this, and the child also spoke about her Nanny, and Uncle, and spoke about enjoying time with them as well. The child was asked to talk about her parents, and the child stated “I didn’t realise I had parents”. The report writer asked the child ‘what about your dad’, and the child stated that her Dad was called ‘Mr Batala’. The report writer asked the child what she would prefer that we called him, and the child replied that she preferred to call him ‘Mr Batala’ but did then confirm that ‘Mr Batala is her daddy’.
The report writer asked the child what Mr Batala was like, and the child replied that ‘he has been very mean’. The child was asked why he was mean, and the child replied that ‘he has been bad to me, and he lives in Melbourne’. The child was asked where is that, and the child replied ‘a long way away’. The child was asked if she liked seeing Mr Batala, and she replied “no”, and when asked why she said no, the child replied “because he smashed Nanny’s phone, and hit Mum, and hit me”. The child was asked if she saw Mr Batala smash Nanny’s phone, and the child replied “I kind of forget”. The child was asked if she was there when Mr Batala smashed Nanny’s phone, and the child replied “I don’t think so”. The child was asked how she could remember it (Mr Batala smashing Nanny’s phone), and the child replied that she has ‘bad dreams about it’, and when the child was asked what happened in her dreams, the child said she has ‘bad dreams about snakes, but forgets what else’. The child was asked if she had ‘good dreams’, and the child replied that she did, but ‘can’t remember them’.
The child was then asked about when she said Mr Batala hit Mummy, and also hit her. The child confirmed that this did happen, and when asked where Mr Batala hit her, she stated ‘I don’t remember’. The child was asked about seeing Mr Batala hit her Mummy, and the child replied that he did, and he used to hurt her (X) but she couldn’t remember any details. The child was asked how she knew that Mr Batala hit her or her Mummy if she couldn’t remember it, and the child again referred to dreams. The child was asked if she remembered having any good times with Mr Batala, and she replied that she did not. The child was asked what she could remember about Mr Batala, and the child replied that she remembered that he popped a balloon. The child was asked if he popped the balloon in a funny, playful way, or in a nasty way, and the child replied that ‘he popped the balloon in a nasty way’. [5]
[5] Family Report paragraphs 70, 71 & 72
The family report said as follows about what happened when the child was informed that the father was at the family report interviews:
The child was then informed that Mr Batala was here today and would like to see her. The child instantly frowned and looked concerned and anxious. The child did not display any positive emotion, facial expressions or excitement about seeing the father. The child was asked if she wanted to see him, and the child replied ‘no’ without any emotion. The child was asked why, and she said that she was ‘too scared’, and added that he was a bad man. The child was asked why he was ‘bad’, and the child replied ‘I don’t know’. The child was asked ‘who said Mr Batala was a bad man’ and the child replied “I don’t know”. The child continued to play with Lego, but began to look around for her mother, and the interview then finished.[6]
[6] Family Report paragraph 73
That was in December 2019 but there is nothing to suggest that her view about not wanting to see the father has changed. Her mother’s view of the father has not changed, so there is no likelihood that X’s view has changed, and the Independent Children’s Lawyer did not suggest to me that it had.
The issue, though, is the weight to be placed on her views. There is very clear evidence that she has heard her mother and maternal grandmother saying negative things about her father. The family report writer referred to instances when that happened in X’s presence at the report interviews and I do not accept their denials that this occurred.
The mother alleged that the child had an independent recollection of certain things that had happened during the relationship. I do not accept that evidence. It is extremely unlikely given the child’s age when she last saw the father. I am satisfied that any negative view she has of the father derives from things she has heard from her mother and her maternal grandmother.
I cannot place weight on X’s views about what should happen but the fact that she has those views, together with other things about this matter, is something I will have to take into account in deciding what I ultimately do.
I must consider the nature of the relationship between the child and each of her parents and any other relevant parent including a grandparent of the child.
X has a very good relationship with her mother. I have been critical of the mother for things she has said to the child about the father but in many respects she is a good and caring parent and X has a close relationship with her and with the maternal grandmother.
X has no relationship with her father. She has not seen him for four years or spoken to him for over three years.
I must consider the financial support of the child and that is a relevant consideration in this case.
The father operates his own business and he said in his affidavit that he worked through a company. He is paying minimal child support but he recently bought a house and it is in his sole name, not in the name of him and his partner, so somehow he was able to obtain a substantial loan to purchase a home.
The mother is very resentful of the fact that the father is paying minimal child support. She could, of course, take steps to seek a departure order. She has not done that. But one always is a little bit suspicious when people have a minimal income and are working through a company.
The father is not disentitled to see his child because he is not paying much child support but it is relevant for two reasons.
One is that it is causing problems between the parties. The mother resents the fact that minimal child support is being paid, and in this particular case anything that causes resentment or gives people an excuse to make complaints is to be avoided if possible.
The other is that given that the father is paying so little child support, I could not possibly expect the mother to contribute to the cost of therapy or the cost of supervised time.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child and make decisions about the child.
The father did nothing about spending time with the child between June 2017 and May 2019 when he filed his application. He gave a reason for that, not being able to get legal aid, but the fact is he did not do anything.
During those two years the child was exclusively in the care of the maternal family. She only heard from them about what had happened in the past and about what Daddy was like, and that has implications for the matter.
The father needs to reflect, indeed all the parties do, on what might have happened if he had acted more promptly. In June 2017 the mother had still not formed the view that she was a victim of sexual violence in Melbourne. She did not begin raising those complaints until later in 2017 when she went to see a domestic violence service. Up to June 2017 the father had been spending some time with the child. If a child inclusive conference with an observation between him and the child had taken place soon after June 2017 it might have revealed that there was a bond there and the matter might have taken a very different trajectory to what it may now take.
I cannot change the past but the fact that that gap of time has occurred is relevant to what I am going to be able to do with the matter.
I must consider the likely effect of any change in the child’s circumstances.
The father’s proposal was that the child should be reintroduced to him, starting with some therapy and then some supervised time. It was his case that this would be beneficial for the child because she would then be able to have a relationship with both her parents.
The mother’s case was that such a change would not be beneficial for the child because the child would be at risk of harm.
I cannot make a finding about the likely effect of a change in the child’s circumstances until I make some further findings about the s. 60CC (3) matters and findings about the s. 60 CC (2) matters and I will weave consideration about the likely effect of change into a conclusion to the judgment.
I must consider 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.
There is a considerable practical difficulty and expense with that in this case. The father lives in Melbourne. The time would need to start slowly and be supervised and the father conceded that it would initially need to occur in City H. The father said that on his current income it would be hard for him to get to City H frequently but he would make the effort. He proposed coming every three weeks.
I am concerned about whether the father will be able to sustain paying for repeated airfares, especially if he also has to pay for the supervised time at G Contact Centre and for the therapy but I will discuss that later in the judgment.
The father said that he could and he wanted the opportunity to do it but the fact that he is not living locally and that his time with the child cannot be frequent does have implications for whether he is going to be able to form a bond with her in the future in the face of the mother’s strong opposition to that occurring.
I must consider the child’s maturity, sex and background.
An important aspect of this case is that the father is Indian. He is Hindu. He does not go to temple, but he does celebrate some days that are important to his religion, such as Diwali and Holi, and it is important to him that the child has a connection with Indian culture.
The father is the only member of his family in Australia. His parents have visited Australia and they had some contact with the child when the father was living in Suburb P, and he would like that to happen again. He would also like to be able to take the child to India.
If X could have some connection with the father’s culture it would be a huge advantage for her. One of the heartbreaking things for me in this matter was the following paragraph in the mother’s affidavit:
I want X to feel comfortable in her identity. X has come to me a number of times, upset by her looks or her differences. She has said words to the effect of: “My skin is brown and yours, Nanny’s and Uncle Mr J’s is pink. I want your colour skin and your colour eyes.” I tell her frequently how beautiful she is and try to teach her that all people have different coloured skin and different coloured eyes and that she is very lucky to have such beautiful features. I do not like that X does not feel like she fits into our family because of her physical differences along with her name.[7]
[7] Mother’s affidavit paragraph
If the child could had a connection with the father she would understand why she had different coloured skin and hopefully learn to value it and that is something which is in favour of steps being taken to try to introduce the father into the child’s life.
I must have regard to the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
Absent the issue to do with the child spending time with the father, the mother is a good mother and the father conceded as much. X is now at school. She is a happy, healthy child and everything suggests that she is being very well cared for.
The father’s capacity to care for the child is an unknown. The mother said that he did not do much during the relationship, but he has a partner. I suspect that if the child spent time with him he would be able to do basic caring tasks for her. He is a functioning member of the community and there were no allegations that he had mental health issues or drug or alcohol issues or had run-ins with the police. There is no reason why he could not, as most adults do, learn to do basic caring tasks for the child.
The mother raised some concerns in her material about some cultural issues to do with the way the father might care for the child which were not in line with norms in Australia. I cannot make a finding that the father would be likely to do things to the child which were out of line with Australian practice.
I am being a bit obscure here because I do not want to go into this in too much detail but I cannot be satisfied that the father would not be able to appropriately care for the child on a day to day basis if he had her in his care.
The family report writer commented positively on his attitude to the child at the family report interviews and his behaviour fitted with the mother’s reference to him in cross-examination as being someone who was a bit conflict-avoidant. The family report writer said as follows:
It is additionally highlighted that the father was cooperative and highly willing to take what-ever approach would most placate the child, and put the child at most ease. The father was patient, very quiet and reserved when hoping to see the child, and did not pursue the child at all when the child peeked at him and then ran back to her mother. The father subsequently, upon interview, expressed that he would do whatever was required to put the child at ease, and minimise any distress, so as to encourage the potential for future contact with him.[8]
[8] Family Report paragraph 77
The father’s behaviour on that occasion is consistent with his behaviour during these proceedings. He has not been pushy or presented as someone who felt himself entitled. That suggests that he does have the capacity, given an opportunity, to relate well to the child and to be sensitive to her needs.
I must consider any family violence involving the child or a member of the child’s family.
I have already made findings about those issues. I cannot be satisfied on the balance of probabilities that the mother’s allegations of family violence toward herself are made out. I am satisfied that the father committed some acts of family violence against the maternal grandmother.

There have never been any family violence orders.
It is not for want of trying by the mother. In January 2018 she attended at the police station and asked for an ADVO. The father had been in Melbourne since June 2017 and the reason the mother gave for seeking an ADVO is an example of why I need to be really cautious about placing weight on the conclusions she draws about things. She said that she had heard the father say to X on the phone “I will see you soon. Soon your life will change for the better.” She immediately assumed that this was a reference by the father to taking the child to India and went to the police seeking an ADVO.
Even if the mother accurately reported exactly what the father said it could have any range of meanings. The father might have been simply stressing to the child that it would be good for her if she was able to see him and have a relationship with him. However the mother jumped to the conclusion that the father was intending to take the child to India and went to the police to seek advice about getting an ADVO. The police said that no threat or offence had been disclosed and that they did not make an application for an ADVO on the mother’s behalf.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
I could be critical of them both in this regard.
I could be critical of the father for doing nothing for two years, which has created a situation for his child that I may not be able to change.
I could be critical of the mother for not being discerning and discriminating in the conclusions she draws about things, which may cause harm for the child. However I have already discussed those issues in other sections of the judgment.
I must have regard to whether it is preferable to make the order least likely to lead to further proceedings.
An order for no time is the order least likely to lead to further proceedings. The father’s counsel submitted that it was not, but I do not agree. The father is living in Melbourne. If I make a no-time order I consider that is likely to be the end of the matter.
However this is a case in which there has to be considerable concern about whether it is preferable to make that order.
I must consider any other relevant matter, and I will mention the following matters here.
First the father said that the mother grew up without a father and as a result did not appreciate the value of a father in X’s life, and that this was something which may be behind her behaviour. My recollection is the mother said the opposite, in other words that because she grew up without a father she kept facilitating time longer than she should because she did not want X to grow up without a father. I cannot make a finding about where the truth lies about any of that.
Second, I need to consider the parties’ capacity to communicate.
The parties had some text and WhatsApp communication in 2016 and 2017 but there was a level of misinterpretation by the mother about things that were said. They have not spoken now for three years. They had been communicating through lawyers since the Court proceedings commenced. There is a huge level of distrust between them and very little prospect that their communication is going to improve in the future and especially so because the mother tends to place her own interpretation on things, an interpretation which is not the only one that is open and is often an interpretation which is unjustified.
The communication difficulties cause me to be concerned about what might happen if I make orders for X to spend time with the father.
The allegations of family violence are a third relevant matter.
Absent the threat to use the phone to spy on the mother I cannot find that the father has committed acts of family violence, but one of the difficulties that now exists in terms of X being reintroduced to the father is that so much time has passed and the mother has convinced herself that every word she set out on paper in her affidavit is true.
The mother left one solicitor who wanted to be more discriminating in the material presented to the court and went to another one who was willing to let her put down on paper every single thing the mother wanted. Nothing I say is going to change the mother’s mind that she has been a victim of sexual assaults. It has now been validated to her and reinforced to her by the family violence services she began to see in late 2017.
The best that could be hoped for is that the mother might be willing to engage in counselling to assist her to reflecting on whether, even if the allegations are true and the father did behave in that way to her, it means that her daughter should not have a relationship with her father.
The mother and father hardly knew each other when they had a child and they had a very unhappy, conflicted relationship. X could be assisted if the mother was willing to have counselling to help her reflect on whether that means that the child should not know her father and should view him as a bad person or whether it would be better if she was given an opportunity to form her own view of the father.
If the mother was willing to undergo that counselling and to reflect on the fact that it might be possible for her daughter to have a different relationship with her father than she had with him, there would be reason to hope that the mother would at least tolerate the child having a relationship with the father, and that a relationship might evolve.
However there is no sign that the mother is willing to undergo that process, or has ever reflected on that possibility that her own short, unhappy relationship with the father does not mean that this child should not have a relationship with her father, or that the father may not be a very different person in a relationship with his child to what he was in a relationship with the mother.
I then have to return to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her 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.
I cannot find, based on my discussion about the allegations, that X would be at risk of harm in the father’s care, and the relevant primary consideration is the benefit to the child of having a meaningful relationship with both of her parents.
It goes without saying that as long as they are not at risk of harm or at risk of substandard parenting, children benefit from having a relationship with the two different parents who are part of their genetic makeup. In this particular case the parents each have a different cultural background to offer to X and she would benefit from having a connection with both of them and not just with one of them.
I mentioned during submissions that it is a long-term loss to a child to be cut off from a parent who comes from a different culture to their primary carer. They lose an opportunity connect with that parent’s language, culture, religion, and family, and the risk for X, if we cannot put something into place for her to spend time with her father, is that she will suffer all of those losses.
The father is not perfect. His actions in threatening to record the mother surreptitiously, although he did not make much of a job of it because he admitted his intention, was confronting for the mother. His behaviour to the maternal grandmother was family violence. It is regrettable that he is not paying a proper level of child support for his child. It is regrettable that he relocated interstate. There is no evidence that he had to do that for financial or relationship reasons. He just wanted to, because he preferred to live in Melbourne. However no parent is perfect. It does not mean they should not have a relationship with their child and it will be a considerable loss for X is she is not able to have that relationship.
Conclusion
The family report writer carefully and accurately explained the difficulties in the matter, as follows:
The primary observation and evaluation within this dispute, even regardless of the outcomes of further scrutiny and clarification by the Court, is that of the very obvious and clear presentation (distress and anxiety) of the child in terms of having a potential relationship with the father. If the Court is to order that the child should spend time with the father, the report writer would highlight that the child has currently, and would likely remain to have, significant resistance and distress about the notion of spending time with the father. Regardless of the truth behind each parties’ allegations of risks and concerns, it is simply true that the child would not want to spend time with the father. A significant amount of counselling and family therapy, such as that offered by a family therapist or Unifam services (for example), would be required in an attempt to ‘undo’ any of these beliefs and feelings of the child. Beginning contact with brief, supervised time, after some degree of therapy and advice offered by the relevant therapist, would be the best starting point for the child if time was ordered to occur between the father and the child.
The child’s expressed views and behaviours were noted to be that the child did not want to have any contact with the father, and nor did the child show any natural curiosity about her father. The child had very fixed views on the nature of the father and the nastiness and meanness of the father, despite the fact that the child could not articulate why, or remember why. This is either because of the child’s limited memory, or because of the influence of the mother and maternal grandmother upon her. The child’s young age is also noted in this regard, and it is unlikely that the child has the cognitive capacity at this age to question or individually assess those concerns as attributed to the father, by the mother and maternal grandmother, directly to the child.
He made the following recommendations:
If the Court considers that the father does not pose any risks to the child, then it is recommended that, prior to spending time with the father;
The child initially receives counselling and child centred psychotherapy that aims to promote the child’s comfort in spending time with the father, and
Upon advice form the counsellor, family therapist, or family therapy service (like Unifam), or child-psychologist, regarding the appropriateness and comfort of the child spending time with the father, then
That times spent between the father and the child occur for 6-12 months at a supervised child contact service, local to the child, so that the child can gain some familiarity with the father, and then upon advice from the child contact service staff,
Spend time with the father generally as per his proposals, with a transitional approach to those extended periods of time such as school holiday times.
It is further recommended that the father be restrained form travelling overseas with the child.[9]
[9] Family Report paragraphs 98, 99 & 108
This is a particularly difficult matter. I indicated at the end of submissions that I did not know what I was going to do with it and I have reflected long and hard and tossed around different ideas in trying to come to a conclusion about what I should do.
I cannot find that the child would be at an unacceptable risk of harm in the father’s care and it will be a considerable loss for her if she does not have a relationship with him. Some children draw the short straw with fathers. They have a father who is violent, mentally ill or drug addicted. Sometimes they have a father who is just not interested in them. This father is none of those things. He is genuinely interested in having a relationship with X. He is also Indian, and she would benefit from having a knowledge of and a connection with that part of her heritage.
Once she met the father the child’s views of him would very likely change. She would find that he is not the threatening monster she thinks he is because of what she had heard, but he is simply her Dad, who cares about her.
If she does not see the father she is never going to have any experience of him to counter the negative information about him that is being portrayed to her by the mother and the mother’s family. She will continue to have untrue beliefs about him, and the family report writer pointed out that she may continue to have those untrue beliefs throughout her life. If something is not done now it is unlikely the child is going to want to reconnect with the father when she is an adult.
The Independent Children’s Lawyer asked the court to make an order that at least created an opportunity for the child to get to know the father. He proposed that the parents engage in family therapy with either Mr B at C Counselling or another psychologist. The matter could be taken slowly and the child could be introduced to the idea of the father slowly. If it was determined that she should meet him, she could meet him in the security of the therapist’s office. That would at least create an opportunity for the child to form a bond with the father, and if she met him her fear of him might melt away.
At the end of the hearing the mother’s counsel said that the mother accepted that the court was not going to be able to make a finding the father had sexually abused the child but she said that the mother did not resile from her views that she had been a victim of sexual assault and she submitted that the court should have regard to the fact that the mother was significantly distressed about the idea of the child spending time with the father.
The mother has not reached the point of being open to letting go of some of her beliefs about the father, or open to having counselling to assist her to try to view her relationship with the father as being separate from the child’s relationship with him. She went right through the trial proposing a no time order.
In the light of that and in light of the time that has passed, I have considerable concerns about whether family therapy is going to do any good. Family therapy can work, but it is often ordered in cases where there is evidence that the child is reluctant to spend time with the parent because for example the child is an anxious child, and the parents both say that they want the child to see both parents and they both support an order for family therapy. If an order for family therapy is made against that background it can work and I have had cases where it has.
The problem in this case is that the mother does not support the child being reintroduced to the father. She believes that the child is at risk of harm from him and nothing I say is likely to change her mind. Her thinking might shift if she was willing to have some counselling and to consider separating the child’s needs from her own, but there is no sign she is willing to do that. The risks are high that if I order therapy it will not succeed and the child will not be successfully reintroduced to the father.
The mother’s counsel said in submissions that if the court made an order that the parties attend family therapy she would comply with, it but she is not going to support it, and the child will have to navigate between living in a home where the father is reviled and considered a threat and a dangerous person, and there is no doubt the mother holds that view if you see what she wrote on the child’s enrolment form, and going to therapy where the possibility will be explored with her that the father is not someone to be feared.
X is six years old. She has not seen the father for four years. She has no memory of ever having had a happy relationship with him. There is a high risk that she will simply not be able, at the age of six, to deal with that situation, and to question the beliefs about the father which the mother and the maternal grandmother have instilled in her, and even if she is persuaded to meet with the father, and even if there is some move to supervised time, there is an extremely high likelihood that time will break down.
There are also practical difficulties. The father lives in Melbourne. They are currently in lockdown. The whole of New South Wales, even City H which is not in lockdown, is a red zone as far as Victoria is concerned. The father cannot come up to City H at the moment and it is unclear when he will be able to do so. He would also have to pay for all the trips to City H, all the therapy and all the supervised time. Whether he will be able to sustain that in the light of the information I have heard about his poor financial circumstances I do not know.
The family consultant referred to the difficulties that distance created in this matter and said as follows:
It is evaluated that the significant distance between parties adds large limitations to frequent and continued shared parenting arrangements that would assist the child and father to re-establish a relationship of meaning, if such contact time was ordered by the Court. It is of benefit to the child that the father has proposed that some contact time between himself and the child occur in the child’s local area, however it is of a contrasting nature that the father volunteered to move so far away from the child initially. The Court may consider exploring with the father the likelihood or options of the father relocating back to the local area if he were ordered to spend enduring and routine time with the child.[10]
[10] Family Report paragraph 95
The father is not willing or able to relocate back to this area.
I have thought long and hard about whether to make the orders that the Independent Children’s Lawyer proposed. I have considerable concern about whether the father will be able to pay for the therapy, so I might order the therapy and it might not occur, or the father might pay for it and it might occur but nothing might come of it.
The mother’s counsel said that the mother would comply with the orders but I cannot make her shift her thinking, and this is not a case where the court could possibly consider changing the child’s residence if the attempt to reintroduce the child to the father was unsuccessful. Too much time has passed. She is too strongly attached to her mother. She is six years old. Changing her residence would be very destructive for her and would be fundamentally unfair to her when her father, as well as her mother, has created the current situation.
The father bears some responsibility for what has happened. In June 2017 he went back to Melbourne. If he had not, and if something had been done at that time, it could be that some supervised time would have been ordered. But he went back and then it was two years before he started proceedings and whether or not that is explicable by the problems with him getting Legal Aid is beside the point. The fact is that he let that time pass, and during that time his telephone communications ceased, and the mother went to a family violence service and came to the view that she was a victim of sexual assault when the parties were living in Melbourne, and sometimes the court cannot undo the past.
I have thought long and hard about what I should do. I have wavered between ordering the therapy, knowing that it has not got much prospects of success and not ordering it.
In the end, given that the mother’s counsel said that the mother would comply with the order and notwithstanding that I am pessimistic about the therapy doing any good, I am going to order that it occur, because the loss for the child of not having a connection with her father, with whom she shares a culture that she does not share with the mother, is huge, and the risk to the child long-term of growing up thinking her father is a monster when he is not is huge.
I am not optimistic that the mother is going to cooperate in this. She will have to take the child to therapy because she has been ordered to do it and if she does not contravention proceedings will follow, but at some point, if it does not work, there has to be an end to the matter for the child’s sake. I am going to include a sunset clause in the orders so that if regular supervised time is not happening at the end of nine months the order for supervised time will be discharged and the regrettable situation that has developed for the child will have to remain for the rest of her childhood and adolescence.

I hope the mother reflects very carefully on whether that is, in fact, a desirable outcome for the child. Perhaps she can go back just for a minute, unpalatable as it may be to her, and think about what attracted her to the father in the first place, the good things about him, because she referred in her affidavit to the things she liked about him in the beginning, such as him being kind to homeless people. Perhaps for the child’s sake the mother can start to bring some of that back into her mind and consider whether there would be a real benefit to X in not viewing her father, who is half her genetic makeup, as a monster. I am pessimistic about whether it is going to work. I would love for the mother to prove me wrong but I cannot do more.
I finally have to consider issue of the child’s surname.
The mother sought an order that the child be known as X Jenner rather than her current name of X Batala. She said that the child did not identify with the name Batala and she was quite resistant to being called by that name and on occasions when the school called her by that name, she did not answer.
The father opposed a change of name as did the Independent Children’s Lawyer, and the Independent Children’s Lawyer sought an order restraining the mother from using any other surname for the child.
There is a lot of case law on the issue of change of name and there is discussion in the cases about whether the court has to treat best interests of the child as the paramount consideration in coming to a decision. My recollection of the cases is that the court has to treat the best interests of the child as the paramount consideration if it is considering changing the name but if it is considering restraining someone from changing the name, it doesn’t, although the best interests remain a relevant consideration. An interesting distinction, but that is what the cases seem to say.[11]
[11] Reynolds & Sherman [2015] FamCAFC 128; Ryan & Burnett [2008] FamCAFC 72
What the change of name cases also say though is that each case involving the application to change a child’s name turns on its own facts. [12]
[12] Flanagan & Handcock [2000] FLC 93-074
In this particular case X is living with the mother and the mother bears the surname Jenner, as does the maternal grandmother and the child’s uncle. Even if the family therapy works, the child is not going to be spending extensive time with the father and I am satisfied on the basis of the mother’s evidence, which I note was not challenged in cross-examination, that the child does wish to have the same surname as the people she lives with.
I indicated during submissions that I was very reluctant to remove the father’s names from the child, particularly if it did turn out that the relationship between the child and the father was unable to be revived. It seemed to me very undesirable in that event to remove that bit of connection for the child with her Indian culture.
During submissions the mother’s counsel said that the mother would agree to the child having a double-barrelled surname, as she called it, as long as Jenner was the last part of it and sometimes the court makes an order for a child to have a hyphenated surname.
I am satisfied that X’s preference is to have the same surname as the other people in her household and it is the child that I have to focus in making a decision about what I do. I do not consider that it would be in her best interests to remove her existing names of Batala, particularly given the real possibility that the family therapy will not go anywhere. It is very important that her connection with her Indian culture remains obvious to her. However I am going to make an order that the name Jenner be added to the child’s name. She is going to have a very lengthy name and she can drop bits of it out if she likes on a day to day basis but that will be her legal name.

I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.
Associate:
Dated: 5 August 2021

File number(s):	NCC 1512 of 2019
Judgment of:	JUDGE TERRY
Date of judgment:	20 July 2021
Catchwords:	FAMILY LAW – parenting – where the father is seeking an order which would enable him to spend time with his daughter aged 6 – where the child has not spent time with the father since she was 2 – where the mother alleges that the father perpetrated family violence including sexual violence and poses a risk of sexual harm to the child – where the mother’s allegations about risk of harm to the child were independently investigated on two occasions and not substantiated – where the court cannot find that the father poses a risk of sexual harm to the child – where the court cannot be satisfied on the balance of probabilities that the mother was a victim of family violence including sexual violence and cyber stalking – where the mother is strongly opposed to the child spending time with the father and the child is currently unwilling to do so – where the parties live in different states – where given the time that has passed, the distance the parties live apart and the mother’s entrenched views the situation may be difficult to turn around – where the Independent Children’s Lawyer proposed an order that the parties attend family therapy - family therapy ordered but with a sunset clause – application for change of name – mother’s surname to be added as the child’s last name
Legislation:	Family Law Act 1975 (Cth), s 60CC
Cases cited:	Reynolds & Sherman [2015] FamCAFC 128 Ryan & Burnett [2008] FamCAFC 72 Flanagan & Handcock [2000] FLC 93-074
Number of paragraphs:	223
Date of last submission/s:	14 May 2021
Date of hearing:	2 & 3 March and 13 & 14 May 2021
Place:	Newcastle
Counsel for the Applicant:	Mr Williams
Solicitor for the Applicant:	ALJ Legal
Counsel for the Respondent:	Ms Kaiti
Solicitor for the Respondent:	Tee Legal
Counsel for the Independent Children's Lawyer:	Mr Guyder
Independent Children's Lawyer:	Krstina Wooi Lawyer

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	20 JULY 2021