Batty & McKay - [2022] FedCFamC1F 369

Federal Circuit and Family Court of Australia
(DIVISION 1)
Batty & McKay [2022] FedCFamC1F 369

File number(s): SYC 4595 of 2018

Judgment of: ALTOBELLI J

Date of judgment: 27 May 2022

Catchwords: FAMILY LAW – PARENTING – Final orders – Where the mother is the primary carer and the father currently spends supervised time with the child – Where the mother makes allegations of family violence, including sexual violence, against the father – Where the effects of family violence continue to impact the mother – Where single expert recommended orders akin to interim orders but neither party made an application for interim orders at the hearing – Where Court is concerned as to the father’s lack of insight into the impact of his family violence on the mother – Where Court is concerned as to father’s lack of insight into the child’s needs – Orders made for the child to spend supervised time with the father.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA

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

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 155

Date of hearing: 24, 25, 27, 28 January 2022

Place: Sydney (via videoconference)

Counsel for the Applicant: Mr Romaniuk SC

Solicitor for the Applicant: Martin Street Lawyers

Counsel for the Respondent: Mr Sansom SC

Solicitor for the Respondent: Atw Family Law

Counsel for the Independent Children's Lawyer: Mr Cairns

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates
ORDERS

SYC 4595 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BATTY

Applicant

AND:
MS MCKAY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

27 May 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The child, X born in 2014 live with the mother.
3.The mother have sole parental responsibility for all aspects of and decisions in relation to X, subject to Order 4.
4.In the event a decision is required as to a long term issue concerning X, the following shall apply:
(a)The mother shall notify the father in writing of the decision which is to be made, along with the details of all available options and any advice or recommendations provided;
(b)The mother shall also indicate the decision which the mother is proposing to make, as well any notice of any date by which the decision is to be made;
(c)The father shall provide a response in writing within seven days (or sooner if the decision is required urgently);
(d)The mother shall consider, by reference to the best interests of X, any such response from the father prior to making any such decision; and
(e)The mother shall advise the father in writing of the mother’s ultimate decision not later than 48 hours after the decision has been made.

5.The father be and is hereby permitted to provide his contact details to X’s school for the purpose of being provided with copies of X’s school reports.
6.Each party shall ensure that at all times they have provided the other party with a current email address and contact number for the purposes of communication pursuant to Order 4.
7.X spend time and communicate with the father as follows:
(a)For a period of four hours once a month subject to Order 8 herein, such time to occur face to face;
(b)By electronic platform (such as FaceTime, Zoom, Messenger or Teams) each alternate Sunday, unless otherwise agreed between the parties, the length of such time to be determined by X.

8.The father’s time with X pursuant to Order 7(a) shall be supervised, such supervision to be undertaken by a professional supervision agency as agreed between the parties or a third party as agreed between the parties in writing and the costs of such supervision shall be shared equally between the parties.
9.For the purposes of the electronic communication between X and the father:
(a)The mother shall be generally present to monitor the communication but will be in another room and shall not interfere in the communication; and
(b)The father may have the paternal grandmother or paternal uncle/s present during any such communications, but not the paternal grandfather.

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 the pseudonym Batty & McKay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case is about X, who was born in 2014 and who is currently seven and a half years old. These reasons for judgment explain the orders that the Court has made for X to spend time with his father, Mr Batty (“the father”).
BACKGROUND
The father is the Applicant in this case. He is 43 years old, describes himself as a manager, and lives in a Northern Sydney suburb. The Respondent is X’s mother, Ms McKay (“the mother”). She is 38 years old. She is a professional by background, and is employed in a number of part-time capacities. She also lives in a Northern Sydney suburb. The parents met in July 2013 and commenced their relationship in December that year. In early 2014, after the parents had separated for the first time, the mother discovered that she was pregnant with X. The parents resumed their relationship and separated on a final basis around June 2015, but nothing turns on the date.
The period of cohabitation appears from the evidence of both parents to have been quite volatile. The mother made a number of allegations against the father about non-consensual sex, family violence, and lack of parenting capacity. After separation some of the issues continued to occur. The father spent some time in a religious community known as the L Community. This commenced in 2016 and ended towards the end of 2017. From the date of separation, X was spending time with the father but it would seem that this was on an ad hoc, though nonetheless frequent, basis. Throughout this period the mother experienced the father to be intimidating, particularly as regards what she described as his persistent sexual advances towards her.
The father’s time with X was stopped by the mother in November 2017. It appears that this was the culmination of a number of concerns that the mother had about the father in relation to his parenting capacity generally, but also specific concerns about sexualised behaviour of the father that was mimicked by X.
The proceedings commenced in July 2018 and on 26 October 2018 Judge Monahan, in what was then the Federal Circuit Court of Australia, made orders for supervised contact on Saturdays on a fortnightly basis. These orders have remained in full force and effect since that date. By way of summary, these orders provided that these visits be supervised by B Services or a similar accredited agency, with the father to pay the costs of the supervision. The parties were also ordered to obtain a psychiatric assessment.
The visits were supervised initially by B Services and later C Services, both professional supervised contact providers. From October 2019, visits were supervised by either C Services or M Services. Those arrangements continued until March 2020 when the COVID-19 lockdowns came into effect. The father nonetheless had communication with X by way of video calls.
The parents attended a Child Dispute Conference on 24 September 2018. A Family Report was prepared by Dr D on 15 March 2019 (“Family Report”). Dr D prepared an addendum to the Family Report on 24 June 2019 (“addendum”). Dr E prepared a Single Joint Expert Report dated 22 December 2021 (“Expert Report”).
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relied on the following:
(a)Amended Initiating Application filed 5 September 2019;
(b)Notice of Child Abuse, Family Violence or Risk filed 19 July 2018;
(c)Affidavit of Dr F filed 2 April 2019;
(d)Affidavit of Dr G filed 27 March 2020;
(e)His affidavit filed 2 September 2021;
(f)His affidavit filed 19 January 2022;
(g)His affidavit filed 21 January 2022;
(h)Case outline filed 19 January 2022;
(i)A tender bundle and a minute of orders sought, tendered and marked as exhibits A1 and A2 respectively; and
(j)Documents produced under subpoena by C Services, marked as exhibit A3.
In support of her case, the mother relied on the following:
(a)Response to Initiating Application filed 1 April 2021;
(b)Her affidavit filed 19 October 2021;
(c)Affidavit of Mr McKay filed 27 September 2021;
(d)Case outline filed 19 January 2022; and
(e)Various documents tendered and marked as exhibits R1–R12.
In support of his case, the Independent Children’s Lawyer relied on the following:
(a)Child Dispute Conference Memorandum dated 24 September 2018;
(b)Family Report prepared by Dr D dated 15 March 2019;
(c)Addendum prepared by Dr D dated 24 June 2019;
(d)Expert Report prepared by Dr E dated 22 December 2021;
(e)Case outline filed 21 January 2022; and
(f)Proposed minute of orders, tendered and marked as exhibit ICL1.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:        Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(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.
(Emphasis in original)

The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
(Emphasis in original)
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
THE COMPETING PROPOSALS
By the time of closing submissions, the competing proposals were as follows.
The father proposed equal shared parental responsibility, with the parents to consult with one another about decisions made in the exercise of such parental responsibility. X would live with the mother and spend time with the father, which would progressively increase over four stages, bearing in mind that as at the time of the hearing X was still spending supervised time with the father. In stage one, for a period of six weeks, X would spend each alternate Saturday from 9 am to 1 pm, unsupervised, with the father. In stage two, for a period of 12 weeks thereafter, it would be each alternate Saturday from 9 am to 3 pm, again unsupervised. In stage three, for a period of 12 weeks thereafter, each alternate Saturday from 9 am to 5 pm, unsupervised. Thereafter, in stage four, each alternate weekend from after school on Wednesday to the commencement of school Thursday morning, presumably in one week, and then each alternate weekend from after school on Friday to Sunday at 5 pm, again unsupervised. The father also proposed a regime of school holiday time after stage four has commenced, which was equivalent to equal time.
It is significant to note that the father proposed that where changeover could not occur at X’s school, the parents themselves effect the changeover at an agreed place, or failing agreement, at the principal place of residence of the parent with ongoing care of X. The father also proposed orders for special days such as Father’s Day, X’s birthday, Christmas and Boxing Day, Easter and New Year’s Day. There are a number of ancillary orders in relation to communication and the sharing of information, including address, landline, mobile telephone number and email address. The father proposed that if X was in the care of someone other than the parents, the relevant parent would let the other know where X would be at such time. The father also proposed an international travel order, in broad terms. The father volunteered to undertake the 1-2-3 Magic and Emotion Coaching course, and the Triple P Parenting program.
The Court will find that despite the comprehensive terms of the father’s proposed order, the orders are intrusive, insensitive to the needs of both the mother and X, and merely confirm the mother’s concerns about the father’s parenting capacity. With great respect to the father, the Court will find that these orders are more about meeting his needs than meeting the needs of X.
The mother proposed that she have sole parental responsibility, subject to the requirement to notify the father of decisions. X would continue to live with her. Communication between the parents would be by email address and telephone, but such communication would be limited to the purposes of the consultation process about parental responsibility. X would spend time with the father for three hours once every two months, such time to be supervised by a professional supervised contact service as agreed between the parties or a third party as agreed between the parties for a period of two years, and with the cost of such supervision being shared. X and the father would also have electronic communication each alternate Sunday. She proposed that at the expiration of two years of supervised time, the arrangements would be reviewed (noting that the requirement for supervised time shall be discharged). The Court observes, and this was not contentious, that the mother’s proposed time arrangement between X and the father is less than what he already has at the moment.
The Independent Children’s Lawyer’s proposal was largely based on the recommendations contained in the Expert Report. The Independent Children’s Lawyer proposed that the mother have sole parental responsibility, but notify the father prior to any decision made and take the father’s views into account in making her decision. X would continue to live with her, but spend time with the father on a gradually increasing basis. Thus, between the date of the orders until the commencement of school Term 1 2024, for the first six months, it would be supervised contact for three hours twice each week, on Saturday and Wednesday. After six months, and provided the father had completed specified parenting courses, it would be three hours on Saturday unsupervised, and Wednesday for three hours supervised, for a period of three months. Thereafter, it would be each Saturday from to 10 am to 4 pm, and on Wednesday for three hours supervised for three months. Thereafter, X would spend time with the father each Friday from after school to 4 pm Saturday, and three hours on Wednesday, for a period of six months. It would then progress to each alternate weekend from after school Friday to Monday before school, and each alternate Wednesday from after school to 8 pm. It would progress thereafter, and ultimately, from the commencement of Term 1, 2024, X would be spending each alternate weekend from after school on Friday to before school on Monday, as well as each alternate Wednesday from after school to before school on Thursday, with the father. The father would be required to complete specified courses. There would be an obligation to share information.
The minutes of orders proposed by each party are reproduced in full in Schedule A to these reasons.
THE ISSUES IN DISPUTE
At the commencement of the hearing, senior counsel for the mother announced that notwithstanding the evidence contained in the mother’s affidavit, she was not contending that this was a case of unacceptable risk of harm. The allegations of sexually inappropriate behaviour deposed to by the mother did not establish that the father presented a risk of sexual harm to X. Rather, the mother’s case was that these behaviours, together with a range of other concerns, would indicate to the Court that the father lacked parenting capacity. Her case was that because of the father’s behaviour towards her and X, to order unsupervised time with the father in the short term would be destructive to her own ability to parent X.
The Court observed the mother to be clearly anxious in relation to matters pertaining to X. This is as much an issue as the concerns about the father’s parenting capacity.
Whilst Dr E was required for cross-examination, Dr D was not, and the Family Report and the addendum were admitted without objection. Indeed, the only witnesses required for cross-examination apart from Dr E were the mother, the father, Mr McKay (“the maternal grandfather”), and Dr G (“the paternal grandmother”).
A number of general observations may be made about the evidence before the Court. The father was a poor historian generally, but particularly poor on dates. He was subjected to a persistent and detailed cross-examination about family violence, and the Court found many of his denials of the allegations made to have been expressed without conviction, and with some hesitation.
The mother presented as intelligent and articulate in cross-examination. She made appropriate concessions. Her anxiety about parenting matters, however, pervaded much of her evidence. This distorted her perception of otherwise innocuous events. As will be seen, much of the father’s behaviour in relation to X as a child was quite inappropriate, and had a sexual component, but the mother catastrophised these events and elevated them into something that they were not. Curiously, she had been warned by her psychologist not to catastrophise her concern, but was somehow unable to convert the theory into practice. However, as will also become apparent, the Court will find that her experience of the father as being violent and sexually intimidating was quite correct. It is quite possible that the mother’s anxiety was linked to her experiences with the father. Indeed, she accurately explained in cross-examination that she interpreted events through the lens of her previous experiences with the father but, the Court observes, could not prevent this descending into catastrophisation.
The Court will find that, notwithstanding the concerns expressed above in relation to both parents, there can be no doubt that the mother’s insight into the needs of X was much deeper than that of the father’s.
These reasons for judgment will commence with a discussion of the expert evidence. Where appropriate, the evidence of the parents and their witnesses will be interwoven in this discussion.
THE Family Report and Addendum
The Family Report and the addendum were tendered into evidence without objection, and Dr D was not required for cross-examination.
The Family Report was based on interviews and observations that took place on 4 March 2019. A convenient, and accurate history of the dispute between the parents is set out at paragraphs 9–12, reproduced below:
9.[Ms McKay] stated that after they separated, she and [Mr Batty] arranged for [X] to spend time with [Mr Batty]. [Ms McKay] was present during some of these times but [X] also spent regular time alone with his father. This time was arranged between the parents.
10.It would appear that from the end of 2015 onwards the relationship between the parents became increasingly strained but that [Mr Batty]continued to spend time with [X]as agreed with [Ms McKay] until the end of 2017, when [Ms McKay] ceased allowing [Mr Batty] to spend time with [X].
11.In February 2018, [Ms McKay] went to the police and reported a number of incidents in which she alleged that [Mr Batty] had sexually assaulted her and also sexually abused [X]. These are outlined in the Statement to Police dated in May 2018. A provisional AVO was taken out with [Ms McKay] and [X] both as protected persons. This AVO was dismissed in July 2018.
12.[Mr Batty] initiated proceedings in July 2018. Prior to the regime of supervised contact starting in November 2018, [Mr Batty] had not spent time with [X] since December 2017.
At the report interviews the mother proposed that X’s time with the father would need to be supervised until such time as he was “robust enough to look after himself”. The mother believed this could be when he was nine or 10 years old. From the father’s perspective, he proposed that X live in an equal shared time arrangement with the parents.
Dr D noted that one of the mother’s main concerns was about family violence and abuse. The allegations of non-consensual sexual activity are summarised at paragraph 18 of the Family Report:
18.[Ms McKay] has made [allegations] that on three separate occasions (July 2013, February 2014, and September 2015) [Mr Batty] forced her to participate in non-consensual sexual activity. She stated that this included anal rape (February 2014), as well as having sex with her when she was asleep (July 2013). [Mr Batty] strenuously denies these allegations and states that [Ms McKay] is “deceiving herself” and that she “must know in herself that what she is saying is not the truth”.
Dr D noted that both parents reported some verbal abuse in their relationship. The mother also reported incidences of physical violence. The father denied all these allegations.
In relation to the safety and wellbeing of X, the mother asserted that the father did not maintain appropriate boundaries with X and, indeed, sexually abused him, or at least behaved in an inappropriate manner. The father denied these allegations.
The mother also raised concerns about the father’s involvement with the L Community.
Perhaps the most serious allegation was in relation to the father’s sexual abuse, or sexually inappropriate behaviour towards X. At paragraph 34 Dr D summarises:
34.The Regulation 7 Family Consultant could not establish any clear support for [Ms McKay’s] allegations that [X] was sexually abused, or being groomed for sexual abuse, by his father from the material subpoena by FaCS or the Police, or in discussion with [X’s] preschool. However, these matters are complex and will need to be determined by the Court.
In relation to adult relationships, Dr D noted at paragraphs 59–60:
59.[Ms McKay] and [Mr Batty] appear to have been able to manage some conversations during the time [Mr Batty] has been having supervised contact with [X]. They had a brief interaction with each other at the time of the assessment and both appeared civil to each other. [Ms McKay] did not take up the offer to go into a separate room so as not to see [Mr Batty], unlike [Ms McKay] [.]
60.Despite [Ms McKay’s] allegations about [Mr Batty’s] sexual assaults on her, the first of which goes back to their initial sexual encounter in WA, she agreed that she had continued the relationship with him and had agreed to him staying with her when he visited Sydney. She talked about her fear of him behaving in a “sexually oppressive” manner towards her even now and spoke about how he had done so throughout the course of their relationship. She spoke about her feeling that he found it difficult to respect her personal boundaries and she feared that he would also do this with [X]. The nature of the allegations [Ms McKay] has made against [Mr Batty] has had an adverse impact on the [parents’] coparenting relationship.
X, who at the time was aged four years, initially presented as a somewhat overactive boy. Dr D decided against interviewing him separately because of his age, and the general inappropriateness of asking him about the issues of the case. Nonetheless, the observations of interactions between X and the mother revealed a warm and affectionate relationship. So too with the maternal grandfather. X also appeared to be happy to see the father, and they talked and played together in a fairly relaxed way. Dr D concluded by observing that there was nothing unusual in any aspect of X’s behaviour whilst he was observed with his parents and the maternal grandfather.
The evaluation commences at paragraph 74. X has a good relationship with both parents. He had, by then, been spending regular time with the father since November 2018. Dr D noted that the parents did not consciously plan to have a baby together, nor did they have a stable relationship before X was born. The mother appeared not to have the support of her parents with the pregnancy initially, and wanted to prove, both to herself and to them, that she and the father could successfully set up a family together. Nonetheless, there were tensions in the relationship from the start, and they had different approaches to aspects of life.
The key paragraphs in the evaluation are paragraphs 76–83:
76.This dispute essentially hinges on the issue of whether or not [X] is at risk if he were to spend unsupervised time with his father. If the Court were to find that [Ms McKay’s] allegations about [Mr Batty’s] behaviour towards her have veracity then this would impact on their ability to exercise joint parental responsibility and it may be that in these circumstances she should be granted sole parental custody. However, there is a risk that she would chose to exclude [Mr Batty] from [X’s] life. Even if her allegations about his sexual behaviour towards her are deemed by the court to have weight then it is a big step to assume that, by virtue of this, [X] would in turn be at risk of sexual abuse from his father.
77.Despite the very serious allegations [Ms McKay] has made about [Mr Batty], many which date back to 2013-2015, she did not appear to have chosen to exclude him from [X’s] life until the end of 2017.
78.As is usually the case in matters of this sort, it is impossible to say with any certainty whether or not [Mr Batty] did or did not do anything inappropriate with [X]. On balance the information suggests that he did not. Based on the detailed information provided by [Ms McKay], the police appear to believe that he did not. It does appear that Mr [Batty] may have had a more relaxed view of [X’s] nudity than [Ms McKay] was comfortable with.
79.It would appear that once [Ms McKay] formed the idea that [Mr Batty] was grooming or abusing [X], she read this intent into a lot of aspects of his interactions with [X], as well as seeing things that [X] did as indicators of abuse. Many of the behaviours which [Ms McKay] and [Ms McKay] have used to support their concerns could equally be viewed as completely innocent. The problem is that once there is a perception of abuse or risk so many things which occur between an adult and a young child can start to acquire potentially sinister implications. It is not the role of Regulation 7 Family Consultant to evaluate these allegations. It is clear that neither FaCS nor the police found anything which led them to pursue [Ms McKay’s] allegations further. The preschool who know [X] well have not noted anything of [concern] in [X’s] behaviour or any changes in how he is since [recommencing] spending time with his father at the end of 2018.
80.Although it is clearly harmful for a child to be placed at risk of sexual abuse, it is also harmful for a child to [grow] up believing that they are at risk from one of their parents if this is not the case. [X] is of an age where he may soon begin to wonder why he can only see his father with someone else present.
81.If any unsupervised time between [Mr Batty] and [X] were to start, given [Ms McKay’s] (and [Mr McKay’s]) concerns, it may be necessary for [Ms McKay] to have some specific therapy focussing on supporting them through this. [Mr McKay] clearly has a wealth of expertise in child protection and has stood by [Ms McKay] and supported her. It may be that he would also need to be involved in any therapeutic work undertaken.
82.If the court were to decide that [X] were to spend unsupervised time with his father then he would benefit from some play based therapy to monitor his general wellbeing. The role of the therapist could also be to support both parents’ understanding of age appropriate behaviour and managing issues such as personal space and privacy.
83.It is recommended that there be restrictions placed on [Mr Batty] involving [X] with any activities related to the [L Community], including taking him to any of their properties or to their community activities.

With the benefit of hindsight, the Court knows that by the time of the hearing the mother was not pressing a case based on unacceptable risk of abuse, but was rather focusing on the inappropriate nature of the father’s behaviour, and how this reflected on his parenting capacity. The Court observes that this must not have been an easy transition for the mother to make, but it does seem to be entirely based on the evidence as objectively viewed. It is interesting for the Court to note that as early as March 2019, nearly three years before the hearing, it had been recommended to the mother that she have specific therapy focusing on supporting X’s relationship with his father, but there is little evidence that she has done so. She did consult her psychologist, Dr H, and also Dr J, but not specifically in relation to supporting X’s relationship with his father.
The addendum takes into account evidence from the psychiatrist appointed to assess the parents, Dr F, to the effect that the father does not suffer any psychological or psychiatric illness. Accordingly, Dr D felt she was able to make the recommendations that are set out at paragraphs 3–6 of the addendum as follows:
3.It is recommended that if [Ms McKay’s] allegations about [Mr Batty’s] behaviour towards her are found to have veracity then she should have sole parental responsibility for [X]. [Mr Batty] should be permitted to contact [X’s] day care providers or school and to receive information about all aspects of [X’s] education, as well as his health. If [Ms McKay’s] allegations are found not to have veracity then the parents should have equal shared parental responsibility for [X].
4.It is recommended that [X] live with his mother.
5.It is recommended that the time [X] spends with his father is unsupervised and that this initially increase to four hours every second Saturday for three months and then to six hours on every second Saturday. If [Ms McKay] does not wish to have face to face contact with [Mr Batty]then handover could be facilitated by ‘[C Services]’ or via a local contact centre.
6.It is recommended that once [X] starts school the time [Mr Batty] spends with [X] should be increased further to include some weekly after school time. Once [X] reaches the age of seven this should include overnight time.
The Court accepts the evidence of Dr D. The Court is mindful that she interviewed the parents and X over three years ago.
THE EXPERT REPORT
Dr E is a consultant clinical psychologist appointed by consent as the single joint expert in this case. His Expert Report is based on assessments carried out on 15 and 29 September, 20 October, and 24 November 2021. He met with the parents, X, and the maternal grandfather. He had access to an extensive range of documents that had been provided to him by the Independent Children’s Lawyer. Due to the COVID-19 restrictions, all interviews were conducted via Zoom.
Dr E observed that one limitation on the Expert Report is that the father’s partner, Ms K, with whom he had been cohabiting for 12 months, was not involved in the report interviews. She was invited to participate, but Dr E asserted that the father elected not to involve her in the current review. Dr E was cross-examined by the father’s senior counsel, and there was no challenge to this statement. The Court notes that an affidavit sworn by Ms K was filed on 19 January 2022 and an application seeking leave to rely on it was made on the morning of the first day of the hearing. The application was declined because of the inherent unfairness of allowing such evidence in circumstances where it was filed well past the date required by directions, and less than a week before the final hearing.
Dr E made a number of observations in relation to the mother at paragraphs 17–18:
17.Affably inquisitive from the beginning, she engaged the clinician with respect, empathy, and humour, yet did not hesitate to challenge views with which she disagreed, or to press her concerns when she considered it necessary - doing so consistently and articulately in a reasoned and measured manner. At various junctures [Ms McKay] appeared intent on working out a solution to the difficult issues which caused her considerable anxiety and doubt, mindful of [X’s] own needs as distinct from her own perspective - in this manner she appeared to approach the interview as an opportunity to collaborate in the development of a plan for safely expanding [X’s] relationship with [Mr Batty] beyond the limits of supervised care. Despite this quite remarkable, if not unusual shared perspective from the outset, she expressed intermittent scepticism about the prospects of any arrangement, citing a detailed set of concerns based on her previous, distressing experiences with [Mr Batty]. At times she became visibly upset, especially when discussing alleged traumatic incidents from that relationship, and also during the introduction to the interview, citing her anticipatory anxiety and distress beforehand. At the beginning of her first interview, [Ms McKay] apologised for not having filed an updating affidavit for her and for her father, citing COVID-19 disruptions as an explanation, and requesting another opportunity to talk about these affidavits as well as some additional subpoena material once these items became available. The clinician readily agreed to this, hence the second round of interviews for both parents.
18.When discussing [X], she displayed an obvious deep affection and curiosity about his perspective, as well as a strong focus on protecting him from harm or distress. In short, [Ms McKay] presented as warily ambivalent though becoming tentatively hopeful, being persistently troubled by intense, negative ‘gut reactions’ triggered by various memories of [Mr Batty], while making an effort to remain open-minded, reasonable, and objectively child-focused.
The Court makes the same observations of the mother after observing her in cross-examination.
At paragraph 19 Dr E noted that the mother reported continuing distress in relation to memories of her relationship with the father, the detailed allegations of which are set out in her affidavit. From the Court’s perspective, this is significant. As at September 2021, the mother was presenting as still suffering from distress from aspects of her relationship with the father more than six years earlier.
At paragraph 22 he discusses the mother’s psychological functioning:
22.On the day of assessment [Ms McKay’s] pattern of responses during interview appeared consistent with a straightforward and candid approach. She remarked on a tendency towards anxious rumination and worry, and she reported before her interview experiencing emotional and physical symptoms of traumatic stress triggered by memories from her past relationship with [Mr Batty]. On the other hand, she also demonstrated a capacity to articulate and to spontaneously express a range of mixed emotions, while displaying an unusually well-developed capacity for self-reflection.
The Court observes that, once again, this is consistent with the Court’s impression of the mother during her evidence.
Dr E found the maternal grandfather to have very strong views about the risks allegedly presented by the father to X. Thus, the maternal grandfather could not envisage a relationship with the father in any form that would be in X’s interests. Dr E observed that the maternal grandfather’s views remained unaltered and undaunted even when challenged with the fact that his views ran counter to those of his daughter, the mother in this case. Of significant concern to Dr E was the view expressed by the maternal grandfather that it was not part of any of his responsibility to promote X’s relationship with the father, given that he himself saw no benefit in this relationship. Notwithstanding this, it was quite apparent that the maternal grandfather played a significant role in X’s life.
The observations of Dr E in relation to the maternal grandfather are consistent with the Court’s own impression of the maternal grandfather in cross-examination. From the Court’s perspective, the possibility that the maternal grandfather is fuelling the mother’s continuing anxiety cannot be excluded.
Family violence is an important issue in this case. The section entitled “Family Violence Risk Review” is found at paragraphs 38–41 of the Expert Report, and is reproduced below:
Family Violence Risk Review
38.[Ms McKay] has made allegations against [Mr Batty] of coercive behaviours including inappropriate physical boundary crossings and sexual assault during the period of their romantic relationship. It hardly needs to be said that if the worst of these allegations are true, [Mr Batty’s] behaviour towards her would constitute a serious offence. At the same time, given a lack of compelling evidence presented, no conviction was made when [Ms McKay’s] allegations were prosecuted in court. [Ms McKay] alleges, furthermore, that [Mr Batty] continued to harass her opportunistically for some time after they had finally separated, repeatedly making unwanted sexual advances and attempting to pressure her into a resumption of sexual activity. [Mr Batty] disagreed with [Ms McKay’s] characterization of the worst of these allegations as ‘rape’, but when pressed, even he acknowledged that he may have failed to acknowledge the true significance of [Ms McKay’s] efforts to rebuff him, perhaps misinterpreting her behaviour under the distorting influence of his own desires. It was beyond the capacity and scope of this assessment to determine where the truth lay on these matters. Even so, after hearing from both parties, this clinician was left with a strong impression that the romantic relationship between the adults was, at the very least, one in which the requirement of consent and its implications was not mutually understood and accepted, or worse, simply not accorded proper weight in [Mr Batty’s] thoughts and behaviour.
39.[Ms McKay] raised a reasonable question as to how much [Mr Batty’s] traumatic brain injury (TBI) impacts on his function, inclusive of his reported lack of empathy, poor responsiveness exacerbated by episodes of impulsivity, and hypersexuality - all features which can be sequelae of long-term TBI impairments. In the absence of hospital documentation this clinician cannot assist the Court further, though that said, if this constellation of symptoms were presented together with the question of whether these are consistent with post-TBI sequelae, then I would opine they are. I leave an offer to the Court to provide an addendum report if additional information is provided regarding [Mr Batty’s] medical history.
40.More recently, it appears that both parties have come to terms with their final separation, with [Mr Batty’s] romantic attention being now focused on his new partner, [Ms K]. [Ms McKay] has not reported any recent harassment from [Mr Batty], and at interview he appeared much more interested in their son than in [Ms McKay] herself. Even so, for her part, [Ms McKay] reported feeling highly anxious and physically sick anticipating meeting [Mr Batty] again, which she explained as an involuntary emotional reaction based on their shared history. Perhaps not surprisingly, [Ms McKay] was curious about [Ms K] and inquired of [Mr Batty] about her, to which he was reportedly churlish and abrupt. When challenged by the clinician about this issue, [Mr Batty] conceded to aspects of this, and struggled to see how in the process of him being more transparent with [Ms McKay] about [Ms K], inclusive of inviting [Ms McKay] to meet her, it could have actually been beneficial to [X]. Her discomfort was reportedly exacerbated by [Mr Batty’s] decision, between his first and follow-up interviews, to move to a new home which, though perhaps not significantly closer to [Ms McKay’s] home than his previous residence, by virtue of location, now may increase the likelihood of their crossing paths.
41.No evidence of family violence against the subject child has been presented for this assessment. [Ms McKay] reported concerns about [Mr Batty’s] interactions and parenting skills, and these are addressed in the ‘Evaluation’ section below.
The Court observes that at paragraph 38 Dr E has accurately summarised the mother’s concerns and allegations about the father. The concession made by the father to Dr E in this paragraph is significant and constitutes a rare glimpse of insight by the father into the potential impact of his behaviour on the mother, and indirectly on X. The last sentence of this paragraph is Dr E’s attempt to express in neutral terms what was a very significant issue for the mother, given her experiences with the father.
Paragraph 39 raises issues about the traumatic brain injury experienced by the father. The Court is satisfied from the totality of the evidence that this injury is not relevant to the matters before the Court.
At paragraph 40 Dr E again reports how the mother felt about meeting the father again—anxiety and physical sickness—which she associated to their shared history. Dr E correctly observes the exacerbation of her discomfort as a result of the father’s decision to move close to her home.
The relevant paragraphs in the “Evaluation” section of the Expert Report will be discussed below. It commences with a detailed discussion about parental responsibility and concludes, for example, at paragraph 46, that it is unlikely that shared parental responsibility would work out to the benefit of X because of the parental inability to cooperate in joint decision making about future planning and ongoing matters relating to his care. In addition, equal shared parental responsibility was contraindicated by the seriousness of the mother’s allegations against the father. As stated at paragraph 46:
...the apparent sincerity of her claim even now to experience an intense, visceral discomfort towards him, although he may no longer be a threat to her, counts against an arrangement in which decisions concerning [X’s] welfare would require the parents to resolve disagreements on issues where their very different temperaments and values are likely on occasion to be opposed.
Equal shared parental responsibility was further contraindicated by the minority role of the father in caring for X. Dr E thought that a less demanding co-parenting relationship might actually enable X to develop his own independent, meaningful relationship with his father. Dr E was unconcerned about the risk that the mother would not facilitate X’s relationship with his father, given the history of X’s time with his father.
Nonetheless, it was clearly the view of Dr E that, if possible, X would greatly benefit from an ongoing relationship with the father. He acknowledged, however, that there were questions about his parenting capacity. At paragraph 49, he states:
49.[Ms McKay’s] historical allegations of coercion and sexual assault underline the importance of questions, already arising from reports of his parenting capacity, concerning [Mr Batty’s] ability or inclination to empathise with, and to respect the independence of, perspectives of individuals that contradict his own desires. Insofar as those questions bear upon how [Mr Batty] might more satisfactorily attune his parenting to the needs of the subject child, the issues are addressed below.
In this way, Dr E, correctly, in this Court’s view, links the issues of the historical allegations to the father’s present capacity to meet the needs of his son. Nonetheless, at paragraph 50, he concludes that those historical allegations do not provide grounds for concern about X being at risk of significant harm from his father.
50.Aside from those more specific concerns, however, the allegations concerning [Mr Batty’s] behaviour in his intimate relationship with [Ms McKay] do not provide grounds in this clinician’s mind for worrying that [X] himself is at risk of significant harm from [Mr Batty]. There has been no suggestion that [Mr Batty] harbours any sexual desire towards [X] or any other child, or that he is motivated by any malicious desire to hurt others. Without seeking to offer a conclusive explanation of historical incidents which are to a significant degree contested, it can be acknowledged that for too long, certain harmful conceptions of masculinity have inexcusably encouraged some men to adopt self-serving interpretations of their partner's objections as rather protestations to be overcome with unswayed persistence. If some such conceit influenced [Mr Batty’s] conduct in his relationship with [Ms McKay], it is very much to be hoped that his current relationship with Ms K exhibits a better model of mutual respect. Had she elected to involve herself in this review, that particular question would have been raised. In any case, the post-separation parenting arrangements under consideration here provide little if any opportunity for repeating dynamics with [Ms McKay] that may have occurred within the context of the parents’ previous sexual relationship. [Ms McKay] is in a much stronger position now, perceives herself as far more mature and empowered, is living independently and enjoying sole parental responsibility and majority care, while [Mr Batty] has every incentive to respect her boundaries as he seeks to gain her trust and cooperation. Nothing in his observed or recently reported conduct suggests that he would be likely to jeopardise his contact with [X] by bringing further negative attention upon himself.
This paragraph is of concern to the Court. It seeks to neutralise, generalise and, with great respect to Dr E, possibly trivialise the mother’s experience of the father’s behaviour. Given the father’s own proposed orders at the final hearing, it can hardly be said that the post‑separation parenting arrangements under consideration provide little, if any, opportunity for repeating dynamics with the mother that may have occurred in the previous relationship. The mother’s evidence, which the Court will accept, is that the father’s behaviour continued well after separation and occurred, for example, at changeover. The father’s proposed orders provide multiple opportunities for the parents to come into contact with each other at changeover. Moreover, the assertion that the mother is in a stronger position now is hard to reconcile with Dr E’s own observations of the mother’s continuing emotional trauma associated with encountering the father even in the context of a forensic assessment.
At paragraphs 55–59, Dr E considers issues associated with the views of X and how he interacted with his father. Whilst the Court notes these observations, the Court does not place any weight on the views expressed by X because of his age and immaturity. The Court accepts, however, that it would not be surprising, given the limited nature of X’s contact with his father, that some reluctance might be expressed by him. It is clear that Dr E believed that X displayed avoidant behaviour in relation to his father and was concerned that this might perpetuate, and even heighten, whatever anxiety such situations provoke in X. He was concerned about the dangers of allowing avoidance to become a dominant and, ultimately, maladaptive coping strategy. The context of this discussion is, amongst other things, anxiety-provoking situations which include, for example, changeovers. Inherent in the father’s proposal are changeovers which will be potentially anxiety-provoking for both the mother and X.
At paragraph 64, Dr E observes:
64.It was not clear to what extent [Ms McKay] genuinely hoped that [Mr Batty] might play a larger role in [X’s] life, but as an officer of the court, she acknowledged her own obligations to support this goal if it could be achieved. At the same time, she raised questions in relation to [Mr Batty’s] demonstrated capacity to relate to [X] with empathy and appropriate emotional attunement, paying attention to [X’s] experience, dispositions, preferences, and needs. Additional factors clouding this intent were her concerns about [Mr Batty’s] over-sexualised focus, be it in his past actions towards her, alleged photos shared between himself and the paternal grandfather, or even books on the animal kingdom he has brought to contact episodes. In her view, the previous family report had given too little credence to these issues, and for this reason she was continuing to seek an arrangement that would offer [X] a greater level of protection in his relationship with [Mr Batty]. But as noted above, the remarkable factor here is [Ms McKay’s] persistence to derive some sort of arrangement that is workable but ‘safe’ in terms of addressing these issues[Ms McKay] acknowledged that certain of her previous concerns (for example, around toileting and bathing) are mitigated by [X] being older now, and hence less physically vulnerable. She was therefore now more focused on safeguarding her child’s emotional wellbeing, explaining how her child’s unusual sensitivity left him especially vulnerable to the misunderstandings that tended to arise between he and his father, given their very different temperaments and his limited base of ‘trust’ with him due to their constrained time together.

Dr E observed, at paragraph 65, that the mother’s concerns were legitimate and needed to be addressed. He, again, makes observations in relation to the mother’s stressed response to the assessment:
65.…By her account, this assessment forced her to confront painful memories from the past which even now caused her to feel unsettled to the point of being physically ill. The magnitude of [Ms McKay’s] visceral discomfort, psychological distress, and personal disapprobation towards [Mr Batty] must stem largely from the troubled history of their badly mismatched sexual relationship, since [Mr Batty] has had little opportunity to cause such a reaction since, as much as the thought of him may continue to trigger this response in [Ms McKay]. Granted, it cannot be easy to separate such strongly disagreeable feelings from a more objective assessment of present concerns directly relevant to a child whom [Ms McKay] is fiercely dedicated to protect.
These observations resonate with the Court’s own observation of the mother in cross-examination, but the concerns do not seem, with respect, to be reflected in the recommendations made. Indeed, at paragraph 67, Dr E seems to say that the mother’s emotional reactions to the father count against the viability of shared parental responsibility. Indeed, he describes it as traumatic stress associated with her past relationship with the father. He suggests this requires emotional healing rather than cognitive adherence.
At paragraph 68, the Expert Report then states:
68.In sum, despite the challenges such a change imposes, [X] deserves for [Mr Batty] to be given an adequate opportunity to address the significant, though not insurmountable concerns about his emotional attunement and relational skills in the context of his parenting. Unfortunately, the existing arrangement provides scant opportunities for father and son to move forwards and develop a more meaningful relationship. In part this is because the constraints of the situation afford few opportunities for deeper bonding experiences (such as going fishing -- an activity towards which [X] has reportedly expressed interest). And in part this is because the role that [Mr Batty] can play in this context excludes more significant responsibilities for providing support, guidance, and discipline, but in contrast cements him into the role of ‘play-mate’ which is ostensibly counter-intuitive to the development of a functional parent-child relationship.
The Court notes that this represents a shift in focus away from the mother and her traumatic stress to the father being given an opportunity to address concerns about his emotional attunement and relational skills. At paragraph 69, Dr E suggests longer periods of unsupervised contact. At paragraph 70, he refers to the benefits of learning on the job but needing feedback about his parenting. It is clear that Dr E acknowledged that the father had a number of deficits in his parenting capacity. At paragraph 72, for example, he refers to the assistance needed by way of education and reflection on his parenting with a suitably qualified professional. He thought, at paragraph 74, that the father was willing to seek help and engage in self-reflection. At paragraph 75, he acknowledges that the father might have much to learn.
Dr E’s recommendations commence at paragraph 76. He confirms that, in his opinion, equal shared parental responsibility may be unlikely to benefit X and thus he recommended that the mother continue to exercise sole parental responsibility. There was no question that X would continue to live with his mother.
At paragraphs 77–84, Dr E recommends, in effect, that within a two year timeframe, the time that X has with his father incrementally progress to substantial and significant time. He explains how this would be achieved. At paragraph 78, he states:
78.It is recommended that initially [X’s] time with [Mr Batty] be supervised by a suitably qualified professional with the role of providing [Mr Batty] with active supervision and coaching as he learns to relate to [X] (costs to be shared equally by both parents). In the first instance, it is suggested that the two parents liaise with [Ms N] from [C Services], since she is respected by both adults and is reportedly liked by [X], with whom she is familiar, with a view to seeing whether she is willing to do these supervised feedback sessions. If [Ms N] is not available, this role could be filled by another suitably qualified clinical child psychologist – ideally someone trained in Parent-Child Interaction Therapy (PCIT) or a similar methodology.
The Court notes that Dr E is not just recommending professional supervised time, but that the professional be involved in coaching the father as to his parenting. At paragraph 79, he explains that the supervised coaching contact sessions occur twice a week, once during the week and once on the weekend, for a duration of up to three hours per session for up to 26 weeks. In effect, he was recommending 52 such supervised coaching contact sessions. These sessions may occur in the beginning at either a local park or a contact centre but then progress fairly rapidly to at least one session weekly in the father’s home.
At paragraph 80, he explains that after 52 supervised coaching contact sessions, and provided the father had completed a number of named parenting education courses, he then might transition to one three-hour supervised weekday contact visit and one unsupervised three-hour weekend session. At paragraph 80, he adds:
80.…If these courses have not been completed however, and/or there remain concerns on the part of the contact supervisor in terms of [Mr Batty’s] capacity to take on, and subsequently reliably implement constructive suggestions so as to improve his capacity to relate to [X] in an emotionally-attuned manner, then the subsequent steps may need to be suspended pending further psychological assessment of [Mr Batty], or a review by the Court.
The conditions suggested in paragraph 80 are problematic, not just from a practical, but also from a legal, perspective. Inherent in the suggestion is the concept of the supervisor being able to decide whether to suspend what is the presumably unsupervised time. This is not a permissible delegation of what is a judicial power. The suggestion of review implies that these orders are interim orders, but, as it turns out, by the time of the conclusion of submissions, it was only the Independent Children’s Lawyer who was suggesting, albeit tentatively, that the Court make interim and not final orders.
At paragraph 81, Dr E states:
81.If the supervisor reports are consistently positive, and there is evidence of course completion and of [Mr Batty] being responsive to input, then the following increments to contact and care could be feasible. For example, after another 26 sessions (13 weeks), then unsupervised Saturday session might be extended to 6 hours, from 10am to 4pm. At any point from here forwards, the supervised weekday sessions may also be replaced with unsupervised sessions, but only if both parents agree to this.
The obvious difficulty with this is that progression from supervised to unsupervised time is entirely dependent on the agreement of the parties. It is somewhat unusual that Dr E would infer that the parents have the capacity to agree when, at least part of his rationale for sole parental responsibility as opposed to equal shared parental responsibility was their inability to communicate.
At paragraphs 82–84, Dr E states:
82.After another 26 sessions (approximately one year from the beginning of this plan), weekend contact sessions may be extended to overnight care, from after school Friday to 4pm Saturday, with weekday sessions no longer to be supervised, assuming that [Mr Batty] has also completed the courses previously mentioned.
83.After another six months, the arrangement might then transition to [Mr Batty] having care of [X] on alternate weekends from after school on Friday to Monday morning school drop-off. A Wednesday afternoon from after school for homework and dinner with a return by 8pm on the alternate week could be added. If this afternoon could include an extra-curricular activity such as swimming or soccer then that should be a desired goal of the process so as to enable [Mr Batty] to actually engage in parenting activities as opposed to ‘play-mate’ activities.
84.After another six months that Wednesday afternoon/evening time could increment to overnight care at [Mr Batty’s] home that night through to morning (assuming that [Mr Batty] continues to live within a 30-minute drive of [X’s] school).
Even before considering the rest of Dr E’s recommendations, his cross-examination and the submissions made, the Court expresses its concerns as to the practicability of the recommendations in relation to the progression of the father’s time. Some of these concerns have been noted above. Perhaps the Court’s biggest concern is how the mother, whose trauma Dr E noted earlier in his report, could cope with this sort of parenting arrangement with its express and implicit requirements for trust, communication and frequent opportunities for the parents to come into contact with each other at changeovers.
At paragraphs 85–88, Dr E makes a number of recommendations in relation to parental education for the father, the active engagement of both parents in family dispute resolution and a number of other matters.
Dr E was cross-examined on the last day of the hearing. In cross-examination by counsel for the Independent Children’s Lawyer, Dr E agreed that his recommendations involved milestones which he described as cautiously incremental. When asked about how the decision is made in relation to the achievement of milestones, he explained that in an ideal and aspirational sense, it would be determined by X voting with his feet. With respect to Dr E, the achievement of milestones needs to be transparent, accountable and objective, not subjective.
Dr E acknowledged that most supervision of children involves monitoring and does not involve parental education or constructive feedback, but that is what he was recommending in relation to the father. He described it as “dynamic education”. When counsel suggested that the mother presented as anxious about the prospect of unsupervised time, Dr E implied that she might need to obtain some counselling herself for her anxiety. He described the mother’s anxiety as elevated but not irrational and, indeed, as well-founded on the history of her relationship with the father. He described the mother as a deep-thinking, highly reflective individual whose fears remained reasonable.
Senior counsel for the father challenged Dr E as to the rationale for supervision. With respect to senior counsel, this was a surprising question, having regard to the evidence before the Court. Dr E explained that X was a sensitive child, and a nuanced approach was required to build his relationship with the father. He explained that nuanced fathering was new territory for the father who lacked mindfulness. X had the capacity to be easily overwhelmed such that, for example, what the father considers to be playing with him can be interpreted as something else by X. Dr E suggested that the father’s intuitive approach to parenting was not necessarily adequate.
Senior counsel questioned the practicability of what he estimated to be a further 234 hours of supervision before the commencement of unsupervised contact. He asked Dr E to accept that there was a degree of contingency and luck in the father achieving the milestones he recommended. Dr E agreed and suggested that a better option might be an interim order rather than a final order. Despite senior counsel’s valiant efforts, he was unable to persuade Dr E that equal shared parental responsibility could work. Likewise, Dr E could not be convinced that supervision was not necessary. Dr E explained that if there was no supervision, even for a transitionary period, there was the risk that the mother would resist this progression in time and might become ambivalent about actively encouraging X’s time with his father, even though, to date, her commitment had been what Dr E described “impressive”.
From the perspective of X, Dr E was concerned that there would be many potentially overwhelming moments, and he emphasised that X should not be pushed into “deep water” and that he needed a great deal of scaffolding. When senior counsel invited Dr E to comment on the mother’s proposal for supervised time, three hours once every two months, he described it as an order that would be made when there was a child at risk. Such an arrangement would enable the child to have an “awareness” of who their parent is, but would not foster a relationship.
When cross-examined by senior counsel for the mother, Dr E agreed that his recommendations contained many caveats and conditions. He explained that this took into account the unique circumstances of this case and characteristics of X. Dr E agreed that, in this case, the mother had the capacity to consider the issue from multiple perspectives, including that of the father, and was able to separate her interests from her son’s interests. Dr E was asked to assume that the Court found in favour of the mother in terms of most, if not all of the allegations she made against the father. He was asked to consider, in those circumstances, whether he would have made different recommendations. He explained that he probably would not, but that he would expect the Court to be more reserved when considering the recommendations.
In relation to the merits of an interim order, Dr E explained that parents are never more angelic than when interim orders are in place and never more demonic than after final orders are made. This was clearly a general observation rather than one pertinent to the parents in this case. Dr E agreed that litigation is generally toxic for the parents and not good for children.
Senior counsel for the mother criticised Dr E as to a number of methodological aspects of the Expert Report. It was suggested that his approach had been, at least in part, therapeutic and not evaluative. Dr E disagreed. Dr E agreed that another clinician was present during the evaluation process for training purposes, that the clinician took notes, and reviewed and discussed the content of the interviews with Dr E. He disagreed, however, that this constituted a collaboratively prepared report. It was suggested to him that his approach to the Expert Report was, in effect, predicated by the likelihood that X would spend face-to-face time with his father at some point. Dr E disagreed and emphasised that he was exploring all options with the mother, as well as reality-testing the proposals put before the Court. He disagreed that he ignored the possibility of less time with the father or continued supervised time.
Senior counsel for the mother referred Dr E to paragraph 46 of the Expert Report where he referred to the mother’s “intense, visceral discomfort towards” the father. Dr E agreed that she was distressed at points of time, especially in terms of recollection of memories of the relationship with the father. He explained that “intense, visceral reaction” referred to the mother’s internal reaction to news that the father had recently moved close to where she resides. He explained it pertained to her awareness that he was physically proximate to her.
Senior counsel challenged the assertion of Dr E, at paragraph 48 of the Expert Report, that he could see “no ground for rejecting the presumption that it would be in X’s best interest to develop a relationship with his natural father if such can be safely facilitated”. Dr E agreed that he was not referring to a legal presumption but to social science. The Court notes that, in any event, Dr E makes it clear that whatever the nature of the presumption, a relationship with the father was in X’s best interest provided it could be safely facilitated.
Senior counsel explored with Dr E what he was told by the father about the family violence allegations and what he was otherwise aware about these allegations from the mother and other sources. Dr E accepted that if all of the mother’s allegations were accepted by the Court, her experiences would have a significant adverse impact on her. Senior counsel challenged the statement at paragraph 41 of the Expert Report that “No evidence of family violence against the subject child has been presented for this assessment”, in the context of the preceding paragraphs under the heading of “Family Violence Risk Review”. The criticism was, in effect, that it reflected a very narrow approach to the issue of family violence. Dr E did not accept this.
With respect to senior counsel for the mother, the criticism on this issue was unwarranted. Dr E made the factual statement that there was no evidence of family violence against X. That did not, of itself, in any way detract from the preceding three paragraphs where he discussed the family violence perpetrated on the mother. Dr E went on to say that he found the mother to be an empowered and assertive mother now. Senior counsel challenged this, suggesting that the focus of Dr E was on the mother’s increasing strengths and not on issue of the father as a role model for his son.
Dr E explained that his concerns about the father as a role model were reflected in the “extremely cautious pathway” that he recommended for time with X. When challenged about where in the Expert Report he dealt with the father as a role model, Dr E referred to paragraph 68 as an example. He accepted, however, that this paragraph did not specifically deal with the positives and negatives of the father as a role model if he were found to have perpetrated family violence.
In relation to the proposal for substantial and significant time, Dr E firstly explained that the proposal was subject to a number of caveats. He admitted that the evidence suggested that the only effective communication was by text and email, and, in that respect, there had been no issues apparent from the evidence.
Dr E agreed that the mother is the primary attachment figure and that the maintenance of this relationship was important. He agreed that X was a sensitive young boy. He agreed that it is less than certain that the father could develop the parenting capacity needed in this context. He suggested that parenting was 99 per cent role modelling and accepted the premise that the father had a lot of work to do. Nonetheless, he showed an understanding that the work was his to be done, not X.
There are many aspects of the Expert Report that are of value and assistance to the Court. As will be seen from the evidence, it is quite possible that Dr E gave inadequate weight to the impact on the mother of the proposal for time between X and the father building up to substantial and significant time. It is possible that he did not place enough weight on the significance of the mother’s experience of surviving family violence perpetrated by the father and its ongoing impacts on her. The Court will find that the recommendations made by Dr E contain elements that are unrealistic and impracticable.
THE FAMILY VIOLENCE ALLEGATIONS
It is important in this case to examine the mother’s allegation as well as the extent to which they were challenged in cross-examination. The allegations are contained in her trial affidavit filed 19 October 2021 and her evidence commences from paragraph 15. At paragraph 18 she deposes:
[Mr Batty] began making persistent sexual advances towards me on the day we arrived and which continued.
This was a quasi-theme of the mother’s evidence. For example, in cross-examination she used words to the effect of “sexually charged environment” to describe the context of the father’s actions with X. She also said in cross-examination that his mind was fixated on the subject of sex.

It is common ground that X will continue to live with his mother.
The most challenging aspect of this case is formulating the order for X to spend time with the father. The father’s proposal is not in the best interests of X. It progresses far too quickly, blithely oblivious to the formidable challenges presented by the history of the parental relationship. Nowhere in the orders does the father demonstrate insight into the need for him to improve on his parenting skills and deal with the serious concern about family violence that was patently obvious from the evidence and which is of great concern to the Court. The father’s order would result in the parents inevitably coming into physical contact with each other, a matter that is once again strongly contraindicated by the evidence and the history of this parental relationship.
The Independent Children's Lawyer’s proposal for the father to spend time with X appears to be largely based on the recommendations in the Expert Report. The concerns of the Court about the recommendations should be apparent from the reasons above. In short, they are impracticable and do not reflect the Court’s concerns arising out of the family violence perpetrated by the father on the mother. The Court also expresses its pessimism that, even if the father completed the parental education courses referred to in the minute of order, and indeed in evidence, it would make a difference. If the father had gained some insight, even limited to the period of the commencement of the proceeding and the receipt of expert evidence, it would have been apparent in the proposal that he put to the Court. Such insight was not apparent from his proposal. It smacked of the same sense of entitlement that the Court referred to in the context of his sexual behaviour towards the mother.
The mother’s proposal is for X to spend less time with the father than he currently does. She proposes three hours every two months, face to face but supervised by a professional supervision agency, with the cost to be shared equally between the parents. She then proposes that at the end of two years of supervised time, the arrangements be reviewed, but noting that the requirement for supervision would be discharged. This is consistent with the mother’s evidence that by the time X turns nine or 10, he will be better able to articulate his views. From the Court’s perspective, at that age his self‑protective capacity will be greater.
The mother’s proposal is problematic. The evidence did not adequately explore the potential impact on X of spending less time with his father. Not only would less time be a missed opportunity in terms of developing a meaningful relationship, but it represents a change from what he has been accustomed to, as well as being little more than the recognition contact that Dr E referred to in cross-examination. The need for there to be a review of the mother’s proposal is self-evident from her own proposal. The ability of the parents to satisfactorily implement a review without the assistance of the Court is doubtful. Regrettably, the prospect of further litigation in this case is a very real one.
What is the purpose of supervision in a case like the present one? The Court’s main concern is about violence which it has described as having elements of coercion and control evidenced by lack of boundaries, particularly sexual boundaries. Physical violence has occurred, but the frequency is low and the context is parental conflict during an extant relationship. The parties are physically separated and orders can be structured in such a way that they do not come into contact with each other, thus minimising the prospect of future physical violence.
The coercive and controlling violence, particularly in the sexual sense, is serious. The father crossed boundaries. He ignored the mother’s denial of consent or withdrawal of consent. This was serious and traumatic. The non‑consensual sex occurred many years ago, but the emotional effects are palpable in the mother even today. The father perpetrated lesser‑scale violations of boundary even after separation. There is no recent history of such behaviour, and the future prospects of it recurring are minimal provided the parents can be kept physically apart. The emotional impact on the mother lingers. Exacerbating this violence when it occurred was a sense of entitlement by the father. The evidence of remorse was minimal, as was any indication of real insight into the broader implications of his behaviour on both the mother and X.
The father’s parenting capacity is limited by the circumstances of supervised time. The father seems to have no understanding how different it would be to spend time with X free from both the supervision and support that comes with a professional supervised contact service. X is vulnerable.
Support of the mother in her parenting of X is critical. Her anxiety about the parenting arrangements, the trauma that she continues to experience associated with her past relationship with the father, and her capacity to occasionally catastrophise are all important matters to consider in formulating a parenting order.
Some of the risks of supervised contact are not present in this case. For example, the Court has no doubt that the father will continue to be regular, reliable and diligent in attending supervised contact visits, for as often as the Court orders. In supervised contact there is little risk that X will be exposed to the father’s inappropriate behaviour, or poor attitude about parenting and the responsibilities of parenthood. The financial cost of supervision has not been an issue in this case.
There are obvious benefits of X spending time with the father. They have a good relationship, and there is no doubt that the father loves him. The mother wants X to have a relationship with the father, albeit a safe one. A relationship with the father gives X a sense of his own identity and origins. Having contact with the father avoids the risk of idealisation or devaluation of an absent parent. Having to navigate a relationship with the father enhances X’s coping skills in dealing with situations and relationships.
Supervision is necessary to protect the mother and X from the father’s unresolved attitudinal issues arising out of the family violence he perpetrated on the mother. Until the father can demonstrate a change of attitude, supervision will need to continue. The father holds the key to unlocking the door that leads to unsupervised contact. He has already missed an opportunity to demonstrate some of that insight at the hearing. Indeed, what he demonstrated was palpably the opposite. The father should not regard this as punishment for his physical acts many years ago but rather as an opportunity to identify and rehabilitate the attitudinal issues of control, coercion, and entitlement that underpin his behaviour. Supervision of his time with X protects X from any contagion of such attitudes. The father may well yet develop into a good role model for his son, but he is not there yet.
The Court is not prepared to consider making an interim order in the circumstances of this case, particularly when the proposal did not come from the parents. The Court recognises that making a final order which does not provide for a progression from supervised time is potentially problematic, but there are no other options in a case like this where the father demonstrates no insight into his behaviour.
The frequency proposed by the mother, every two months, is inadequate. The Court can see no reason why both the parents and X could not cope with four hours once each calendar month, and otherwise broadly in accordance with Orders 6, 7 and 8 of the mother’s minute. The orders for electronic communication at Orders 6(b) and 10 of the mother’s minute are appropriate. The remaining orders proposed are also quite appropriate and child-focused. The mother pressed for a restriction on X spending time with the paternal grandfather, deposing in her affidavit to inappropriate behaviour displayed by the paternal grandfather in the presence of X. The father admitted in cross-examination that, during the one occasion where the paternal grandfather visited the parents, in December 2015, he would regularly raise sex as a topic of conversation. Indeed, the father stated that he was uncomfortable and “embarrassed” for his father. The mother was not cross-examined about her concerns. No submissions were made about the issue. The order will be made, particularly having regard to the mother’s anxiety.
The Court realises that it is making a final order which provides for half as much time as X spends with the father under the current operative interim orders. The existing interim orders were made on the basis of limited and untested evidence. Those limitations were not present at final hearing. The order the Court will make is based on a careful assessment of all the evidence and a conclusion as to what is in the best interests of X. The Court is not concerned, for example, that the change will not be something X can cope with.
Even though the Court does not believe that it can formulate an order that provides for a future review of these arrangements, there is nothing to stop the parents from reviewing the same, obtaining expert assistance, and perhaps attending family dispute resolution at the time they both agree is appropriate. From the Court’s perspective, however, if the matter came back, the Court would be assisted by clear and cogent evidence of the father addressing the issues of family violence and parenting capacity identified in these reasons for judgment.

I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated:       27 May 2022
Schedule A
Father’s Proposed Minute
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SYC4595 of 2018
IN THE MARRIAGE OF
Mr Batty
(Applicant Father)
and
Ms McKay
(Respondent Mother)
MINUTE OF ORDERS
IT IS ORDERED THAT:
1.The Applicant father and the Respondent Mother have equal shared parental responsibility and make joint decisions in relation to long term decisions for the child of the relationship, X, born in 2014 (“the child”) with such decisions including, but not limited to the following:
1.1      The child’s health;
1.2      The child’s religious and cultural upbringing;
1.3      The child’s name;
1.4      The child’s future education; and
1.5      The child’s living arrangement.
2.That the parties shall consult with one another about the decisions to be made in the exercise of the parental responsibility as follows:
2.1In writing by email to the other parent with as sufficient information as to the available time and which is relevant to the decision(s) to be made;
2.2Upon receipt of the initial information, the other parent shall provide a prompt response, but within a period not exceeding 72 hours, to facilitate a joint decision being made by the parents about the particular aspect of their parental responsibility; and
2.3Both parents shall ensure that all consultations between them in relation to the parental responsibility for the child are conducted in good faith, is in the best interest of the child and is not derogatory of or to the other parent.

3. That the child live with the mother.
4. That the child spend time with the father as follows:
Stage 1
(a)On the making of these orders, for a period of 6 weeks, on each alternate Saturday from 9.00am to 1.00pm;

Stage 2
(b)At the conclusion of stage 1 above, and then for a period of 12 weeks, every alternative Saturday from 9.00am to 3:00pm;

Stage 3
(c) At the conclusion of stage 2 above, and then for a period of 12 weeks, every alternate Saturday from 9:00 am to 5:00pm

Stage 4
(d)At the conclusion of stage 3 above, then each alternative week from after school Wednesday to the commencement of school Thursday morning, and each alternate weekend from after school Friday to Sunday at 5.00pm.

5.That the child spend time with the parents during the school holidays after Stage 4 has commenced, the regime is as follows:
5.1During the end of School Term and Christmas school holiday periods, the child spends equal time with each party as agreed between the parties, and failing agreement with the mother during the first half the school holidays in even numbered years and with the father in the first half of the school holidays in odd numbered years. For the purpose of this order the school holiday periods will be defined as follows:
5.1.1They will commence at 9am the day following the conclusion of the school term;
5.1.2They will conclude at 5pm the Sunday before the commencement of the school term; and
5.1.3The midpoint shall be 5pm at the midpoint of the holidays, and if an odd number, the child shall reside with the mother for that additional evening.

6.For the purpose of picking up and dropping off the child, changeover to occur at a place identified by agreement between the parties or, failing agreement, at the principal place of residence of the parent with outgoing care of the child.
7.Notwithstanding anything else contained in these Orders and after the commencement of Stage 4 at Order 4a unless otherwise agreed between the parties in writing, the child spend time with the father:
7.1From 9.00am to 5.00pm on Father’s Day;
7.2From 9.00am to 5.00pm on the father’s birthday when it falls on a weekend or during school holidays;
7.3From after school to 7.00pm on the father’s birthday when it falls on a school day;
7.4For no less than 2 hours on the child’s birthday at such time as agreed between the parties or in default of agreement, between 3.00pm and 5.00pm if the child is in the mother's care;
7.5From Christmas Day at 12.00pm to Boxing Day at 9.00am in even numbered years and from Christmas Eve at 3.00pm to Christmas Day at 12:00pm in odd numbered years;
7.6In the event the child is in the mother’s care during Easter and Easter does not occur during the school holiday period, the child is to spend time with the father from 5.00pm Easter Thursday to 6.00pm Easter Monday in even numbered years and with the Mother in odd numbered years;
7.7In the event the child is in the mother’s care during the New Year’s period, being New Year’s Eve on 31 December and New Year’s Day on 1 January of each year, the child shall spend time with the father from 3.00pm New Year’s Eve to 6.00pm New Year’s Day in odd numbered years; and
7.8At other times as agreed between the parties in writing which includes by email.

8.That notwithstanding anything else in these Orders and unless otherwise agreed between the parties in writing, the child spend time with the mother as follows:
8.1From 9.00am to 5.00pm on Mother’s Day;
8.2From after school to 7.00pm on the mother’s birthday when it falls on a school day;
8.3From 9.00am to 5.00pm on the mother’s birthday when it falls on the weekend or during the school holidays;
8.4For no less than 2 hours on the child’s birthday, such times as agreed between the parties or in default of agreement, between 3.00pm and 5.00pm if the child are in the father's care;
8.5From Christmas Eve at 3.00pm to Christmas Day at 12.00pm in even numbered years and from Christmas Day at 12.00pm to Boxing Day at 9.00am in odd numbered years;
8.6In the event the child is in the father’s care during Easter, and Easter does not occurring during the school holiday period that the child shall spend time with the mother from 5.00pm Easter Thursday to 6.00pm Easter Monday in odd numbered years and with the Father in even numbered years;
8.7In the event the child is in the father’s care during the New Year’s period, being New Year’s Eve on 31 December and New Year’s Day on 1 January of each year, the child shall spend time with the mother from 3.00pm New Year’s Eve to 6.00pm New Year’s Day in even numbered years; and
8.8At other times as agreed between the parties in writing which includes by email.

9That the child may communicate with each parent at such time as the child so wishes and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, email.
10That each party notify the other of the address, telephone number and name of the carer/s who the child will be staying with, in the event that the child is not in the care of the parent.
11That each party notify the other as soon as possible, and in any event, within 30 minutes of any serious injury or illness suffered by the child whilst with that party. With such notification to be via phone call at first instance and if unable to make contact, via email or text message.
12That each party notify the other, no more than 48 hours after any change to their address and/or landline and/or mobile number and/or their email address.
13That each party notify the other of the address and telephone numbers of the place/s where the child will be staying during holiday periods in Australia spent away from their residence not later than 4 weeks prior to the commencement of any such holiday.
14That within 7 days from the date of these Orders, each party is to authorise and provide the necessary consent as required for the following:
14.1To any school attended to enable both the mother and father to receive any reports, notices and correspondence in relation to the child and to permit both parents to attend special events or other pre-school or school activities; and
14.2To any hospital, medical practitioner or other healthcare professional including counsellors, psychologists and/or physiatrists to receive information reports in relation to the child’s health, welfare and treatment.

15That pursuant to section 65Y(2) of the Family Law Act 1975 each parent be permitted to travel with the child overseas as agreed in writing but failing agreement, the following shall apply:
15.1Neither party will travel to a country that has a current travel warning advising against non-essential travel to that country issued by the Department of Foreign Affairs and Trade or a country that is a not a party to the Hague Convention on the Civil Aspects of International Child Abduction;
15.2That the parties do all things and sign all documents necessary to make an application for an Australian Child Passport for the child within 14 days of being requested to do so and for such purposes, both parties shall meet one half of the costs;
15.3Upon issuing of the child’s passport in Order 15.2:
15.4That the travel will take place during the periods of time the child is living with that parent;
15.5The travelling parent is to provide the other parent with at least 4 weeks written notice (unless otherwise agreed) of their intention to travel and provide the following:
15.5.1A copy of the confirmed itinerary including the address and contact phone numbers for the accommodation at which the child will be staying and a list of all of the countries which the child will be visiting whether in transit or otherwise; and a copy of the e-tickets (with proof of return tickets being booked for the child);
15.5.2During the travel period, the travelling parent will do all things necessary to ensure the child have telephone/Skype or other audio or visual communication, for the child to communicate with the other parent each day at times to be agreed, failing agreement for no more than 30 minutes each day;
15.5.3The travelling parent shall ensure that the child has the maximum medical travel insurance cover; and

15.5.4Upon the father’s return, the child’s passports must be returned to the mother within a period of 7 days of return.

16That each party is at liberty to attend any school functions, activities or extra-curricular activities involving the child in the event, that such activity occurs at the time the child is in the care of the other parent.
17That the parties shall advise each other of any sporting activities, recreation activities, birthday parties and school functions in which the child are to be involved and for such purposes, each party shall ensure, as practicably possible, that the child attend such commitments when the child is in the care of that parent.
18That in the event that a parent is unable to facilitate the child’s participation in an activity, that parent is to contact the other at least 48 hours in advance unless in the case of an emergency to arrange for such time to occur.
19That the father and mother will consult each other and at the written consent of both parties is obtained prior to any non-urgent medical treatment including counselling being provided to the child and that each parent is at liberty to contact the treating practitioner to discuss the matters regarding consultation, treatment and recommendations.
20That the father and mother will inform the other of any treatment the child receives by the treating healthcare professional as soon as practicable after the child has received such treatment and for such purposes, that parent shall advise the other including but not limited to the following:
20.1The diagnosis and prognosis of the illness;
20.2Any medication prescribed including but not limited to pills, capsules, remedies, lotions and variation to diet.

21That each parent as soon as it is practicable contact the other parent to advise in the event of the child:
21.1Becoming seriously ill;
21.2Hospitalised; or
21.3Are involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to a hospital.

22That neither parent is permitted to relocate the residence of the children to a location that is more than 10 kilometres from the other parent.
23That the father and mother shall keep each other informed of their residential address, personal email address and personally contact telephone number and shall advise of any changes at least 7 days prior to such change taking effect.
24The Court NOTES that if either party wishes to vary the Orders, or a joint decision in relation to major long term issues cannot be achieved, then prior to any Court action being initiated, the parties will first attend a mediator/counsellor mutually agreed upon and failing agreement or if the mediator is not available or willing to assist the parties then Relationships Australia should be contacted and arrangements made to discuss the major long term concerns of the child.
25That neither parent shall make a commitment for the child during a period for which the child will be living with the other parent without first obtaining the consent from the other.
26That each parent is hereby restrained from discussing these orders in the presence of the child or from denigrating that other parent in the presence of the child.
27That the Father completes the 1,2,3 Magic and Emotion Coaching Course and the Triple P Parenting Program.
28That each party shall do all things reasonably required by the other including the signing and executing of all necessary documents to give effect to the provisions of this order within 14 days of being requested to do so.
29That if either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, then the Registrar of the Family Court of Australia in the Sydney Registry is hereby appointed pursuant to section 106A of the Family Law Act 1975 to sign or execute such document on behalf of the defaulting party upon lodgement of such document and the filing of the affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
30That the defaulting party shall pay the party’s indemnity costs of and incidental to such request and for production of documents the Registrar orders pursuant to the above order
31That pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist to adjust and comply with in order are set out in the attached Family Law Courts fact sheet entitled “Parenting Orders – obligations, consequences and who can help” and those particulars are incorporated in these Orders.

Mother’s Proposed Minute
AMENDED Minute of Order sought by the Respondent Mother
Batty and McKay
SYC 4595/2018
1.That all previous parenting Orders be and are hereby discharged.
2.That the child X ("X") live with the mother.
3.That mother shall have sole parental responsibility for all aspects of and decisions in relation to X, subject to Order 4.
4.In the event a decision is required as to a long term issue concerning X, the following shall apply:
a.the mother shall notify the father in writing of the decision which is to be made, along with the details of all available options and any advice or recommendations provided,
b.the mother shall also indicate the decision which the mother is proposing to make, as well any notice of any date by which the decision is to be made;
c.the father shall provide a response in writing within 7 days (or sooner if the decision is required urgently)
d.the mother shall consider, by reference to the best interests of X, any such response from the Father prior to making any such decision; and,
e.the mother shall advise the father in writing of the mother’s ultimate decision not later than 48 hours after the decision has been made.
f.The father be and is hereby permitted to provide his contact details to X’s school for the purpose of being provided with copies of X’s school reports.

5.Each party shall ensure that at all times they have provided the other party with a current email address and contact number for the purposes of communication pursuant to Order 4.

6. That X spend time and communicate with the father: -
a.For a period of 3 hours once every two months subject to Order 7 herein, such time to occur face to face;
b.By electronic platform (such as FaceTime, Zoom, Messenger or Teams) each alternate Sunday, unless otherwise agreed between the parties, the length of such time to be determined by X;

7.That the father's time with X pursuant to Order 6(a) shall be supervised for a period of two years, such supervision to be undertaken by a professional supervision agency as agreed between the parties or a third party as agreed between the parties in writing and the costs of such supervision shall be shared equally between the parties.
8.That the for the purpose of the father's supervised time with X:
a.The father shall provide the mother with a list of proposed dates and times for each two-month period, such list to be provided at least 14 days prior to each two-month period;
b.The mother will use her best endeavours to select a day and time from the dates suggested by the father provided the nominated supervising agency is available at that time.

9.That at the expiry of the two year period of supervised time, the parties shall review the arrangements in place and the parenting arrangements for X, noting that the requirement for supervised time shall be discharged.
10.That for the purposes of the electronic communication between X and the Father: -
a.The mother shall be generally present to monitor the communication but will be in another room and shall not interfere in the communication;
b.The father may have the paternal grandmother or paternal uncle/s present during any such communications but not the paternal grandfather;

Independent Children’s Lawyer’s Proposed Minute
IN THE FEDERAL CIRCUIT AND FAMILY COURT
OF AUSTRALIA
AT SYDNEY SYC4595/2018
BETWEEN Mr Batty
Applicant

AND Ms McKay
Respondent

AND INDEPENDENT CHILDREN’S LAWYER

ICL’S PROPOSED MINUTE OF ORDER
1. All previous parenting orders are discharged.
2.The mother have sole parental responsibility for X, born in 2014 (the child).
3.Prior to making any decision pursuant to Order 2 hereof, the mother shall notify the father of what decision she proposes to make and the father may within seven (7) days thereof provide the mother with his views in respect of such decision, and the mother shall take his views into account in making her decision.

4. The child shall live with the mother.
5. The spend time with the father as follows:
5.1 from the date of these orders until the commencement of school term 1 2024:
(a)For a period of six (6) months from the making of these orders for three (3) hours on two (2) occasions per week, being Saturday and Wednesday supervised by C Services.
(b)At the conclusion of the time in (a), Provided the father has completed the Parenting Beyond Separation and Emotion Coaching Courses, for a period of three (3) months weeks thereafter, for three (3) hours on Saturday unsupervised and Wednesday for three (3) hours supervised.
(c)At the conclusion of the time in (b), Saturday be from 10am to 4pm, and on Wednesday for three (3) hours supervised for a period of three (3) months.
(d)At the conclusion of the time in (c), each Friday from after school to 4pm Saturday and three (3) hours on Wednesday for a period for a period of six (6) months.
(e)At the conclusion of the time in (d), each alternate weekend from after school Friday to Monday before school and each alternate Wednesday for after school to 8pm for a period of six (6) months.
(f)At the conclusion of the time in (e), each alternate weekend from after school Friday to Monday before school and each alternate Wednesday from after school to before school Thursday.
(g)Such other times as agreed.
5.2From the commencement of school term 1 2024:
(a)During school term each alternate weekend from after school Friday to Monday before school and each alternate Wednesday from after school to before school Thursday.
(b)During school holidays
(i)During the school holidays at the conclusion of terms 1,2 & 3, for one-half thereof, as agreed and in failing agreement for the first half in even numbered years, and for the second half in even numbered years.
(ii)During the school holidays at the conclusion of Term 4 as agreed and failing agreement, each alternate week being The commencing the first week in even numbered years and commencing the second week during odd numbered years’

(c) Such other times as agreed

6.The Father shall commence and complete within six (6) months of the date of these Orders courses in Parenting after Separation and Emotion Coaching, Triple-P Parenting programs and redo the Circle of Safety program and it is a condition to do so for the Father’s time to progress in accordance with Order 5.1(b) and such time will not progress until he has completed such courses.
7.That each party shall advise and keep advised the other parent with their residential address, contact number and email address, and shall advise the other parent within 24 hours of any change to such.
8.That each parent shall ensure that the other parent is kept informed as a matter of priority of:
8.2Any medical problems or illnesses suffered by the child whilst the child is in their care, including but not limited to, notifying the other parent by text message as soon as practicable of the child's admission to hospital.
8.3Any medication which has been prescribed or recommended by a medical practitioner for the child or either one of them.
8.4Treating doctors and locations of hospital where the child is admitted.

9.Each parent shall ensure that the child is provided with any medication as required during the time they are living with or spending time with them and shall provide to the other parent written confirmation of the medication, including the name and prescribed amount to be provided to the child.
10.Each parent shall be responsible for taking the child to any specialist or medical appointments which are scheduled during their time with the children and to facilitate this order, the parents shall advise the other within 24 hours of any appointment being scheduled.
11.That both parents are each entitled to directly contact any school at which the child is enrolled to obtain information about the progress of the child, to receive copies of school reports and other documents provided to parents and to attend any school events and functions to which parents are invited to attend.

File number(s):	SYC 4595 of 2018
Judgment of:	ALTOBELLI J
Date of judgment:	27 May 2022
Catchwords:	FAMILY LAW – PARENTING – Final orders – Where the mother is the primary carer and the father currently spends supervised time with the child – Where the mother makes allegations of family violence, including sexual violence, against the father – Where the effects of family violence continue to impact the mother – Where single expert recommended orders akin to interim orders but neither party made an application for interim orders at the hearing – Where Court is concerned as to the father’s lack of insight into the impact of his family violence on the mother – Where Court is concerned as to father’s lack of insight into the child’s needs – Orders made for the child to spend supervised time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA
Cases cited:	McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division:	Division 1 First Instance
Number of paragraphs:	155
Date of hearing:	24, 25, 27, 28 January 2022
Place:	Sydney (via videoconference)
Counsel for the Applicant:	Mr Romaniuk SC
Solicitor for the Applicant:	Martin Street Lawyers
Counsel for the Respondent:	Mr Sansom SC
Solicitor for the Respondent:	Atw Family Law
Counsel for the Independent Children's Lawyer:	Mr Cairns
Solicitor for the Independent Children's Lawyer:	Phillip A Wilkins & Associates

SYC 4595 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BATTY Applicant
AND:	MS MCKAY Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	27 May 2022