Belko & Rushworth - [2022] FedCFamC2F 1631

Federal Circuit and Family Court of Australia
(DIVISION 2)
Belko & Rushworth [2022] FedCFamC2F 1631

File number(s): MLC 6272 of 2013

Judgment of: JUDGE BURT

Date of judgment: 28 November 2022

Catchwords: FAMILY LAW – PARENTING – RESIDENCE – Best interests – history of contravention by the mother of orders for the child to spend time and communicate with the father – child placed with father pursuant to interim orders – child spending no time with the mother for six months following the interim change of residence – mother spending supervised time only with child for the next six months – the child and the father engaging in regular family therapy – child reporting to family therapist that he was content in his father’s care, during the period for which he was spending no time with the mother – child expressing wholly negative views of the father following the commencement of supervised time with the mother – mother’s view of risk arising from father – where the child has been exposed to the mother’s views – where the child is aligned with the mother – where the child’s best interests require that he live with father and spend supervised time with the mother three hours per month on a final basis – the father to have sole parental responsibility.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65D, 69ZN, 114AB(2)

Cases cited:
Andrew & Delaine [2009] FamCAFC 182

Bant & Clayton [2019] FamCAFC 198

Ditcher & Fetzer [2014] FamCA 175

Grella & Jamieson [2017] FamCAFC 21

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713; [1979] FamCA 73

Isles and Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

Belko & Rushworth [2019] FCCA 685

Belko & Rushworth [2019] FCCA 3112

Lennon & Lennon [2011] FamCA 571

Loddington & Derringford (No 2) [2008] FamCA 925

Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21

Manifold & Alderton [2021] FamCAFC 61

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Pavli & Beffa (2013) 48 Fam LR 677; [2013] FamCA 144

R and R: Children’s wishes (2000) 155 FLR 29; (200) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43

Division: Division 2 Family Law

Number of paragraphs: 254

Date of hearing: 12, 13 and 14 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Thistleton

Solicitor for the Applicant: Peter Lynch

Counsel for the Respondent: Mr Oldham

Solicitor for the Respondent: Vernon Da Gama and Associates

Counsel for the Independent Children's Lawyer: Ms Wiener

Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers
ORDERS

MLC 6272 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BELKO

Applicant

AND:
MS RUSHWORTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BURT

DATE OF ORDER:

28 November 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X born in 2010 (“X”) in respect of major long-term decisions.
3.X live with the father.
4.X spend time and communicate with his mother as follows:
(a)For three hours of supervised time each calendar month on a day to be agreed, and in default of agreement on a Saturday, as follows:
(i)so soon as can be arranged at a contact service to be agreed between the parties and in default of agreement at K Children's Contact Service, and in this regard, the parties must forthwith do everything to enrol at that service and follow the directions of the staff at that service; or
(ii)if that service is not available, under the supervision of a professional supervision service and then in the Suburb L area; and

(b)at such further and other times as may be agreed in writing between the parents.

5.The parents be equally responsible for the costs of such supervision and the production of any report from such service.
6.The mother and the father communicate regarding X via such parenting application as they may select by agreement and in default of agreement by email.
7.The father forthwith facilitate X’s attendance upon a suitably qualified therapeutic counsellor and disclose the identity of the counsellor to the mother within 14 days of these orders.
8.Each party be at liberty to disseminate within any other judicial proceedings between the parties including but not limited to those proceedings currently in the County Court of Victoria:
(a)a copy of the orders and reasons for judgment of Judge McNab delivered 8 February 2019;
(b)a copy of the orders and reasons for judgment of Judge Carter delivered 30 October 2019;
(c)a copy of these orders and reasons for judgment; and
(d)a copy of any orders made in these proceedings.

9.Each party be at liberty to provide to any health professional assisting X and/or to any psychologist or counsellor treating the parties and/or to any family dispute resolution practitioner assisting the parties to resolve issues between them.
(a)a copy of the orders and reasons for judgment of Judge McNab delivered 8 February 2019,
(b)a copy of the orders and reasons for judgment of Judge Carter delivered 30 October 2019;
(c)a copy of these orders and reasons for judgment;
(d)a copy of any orders made in these proceedings, and
(e)a copy of the family reports dated 3 April 2020 and 28 July 2022.

10.Both parents and their agents be restrained from:
(a)denigrating or disparaging the other parent, to or in the hearing of X or causing an agent to do likewise;
(b)discussing these proceedings with or in the hearing of X or causing an agent to do likewise, save for the father explaining the outcome of these proceedings to X in a child-appropriate manner;
(c)disclosing to X or allowing to be disclosed to him the contents of court documents; or
(d)exposing X to any form of family violence or allowing anyone else to do so.

11.The independent children’s lawyer be discharged.
12.All extant parenting applications be otherwise dismissed.
13.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

These proceedings concern X who was born in 2010 and is almost 12 years old.
X was born as the result of a brief liaison between his parents. They have never lived together. X did not meet his father until he was almost three years old. Proceedings in this Court have been underway almost continuously since 2013. Numerous orders have been made providing for X to spend time with his father but it has proved impossible for time to take place on a regular basis.
On 29 October 2021, the Court made orders for X to be placed in the care of his father on an interim basis. X did not spend time with his mother for nearly seven months after those orders. He currently sees her on a supervised basis for two hours each fortnight.
The focus of the dispute before me is whether X should remain in the care of his father or return to the primary care of his mother. This is a finely balanced case for a number of reasons including X’s strongly expressed wish to return to the care of his mother.
For the reasons set out, I have decided that X’s best interests require him to remain in the care of his father.
Background and procedural history
The father says that the parties dated for about three months in 2010. The mother says that they were never in a relationship. Nothing turns on this dispute as it is clear that they never lived together nor planned to have a child.
X was conceived in early 2010. The father says that the mother told him that she wanted a termination about three weeks after he learnt of her pregnancy. He says that a few days later she asked for money for the termination and he provided it. The mother says that it was the father who suggested the termination and that she decided nonetheless to go ahead with the pregnancy. The only aspect of this history which is relevant for my purposes is the extent to which the parties have communicated their version of events to X.
The father moved to Queensland for the purposes of his employment in or around October 2010.
The parties agree that when X was born the mother informed the father’s mother. Initially, the father’s mother and his niece visited X in the mother’s home but these visits ended in or around August 2011.
On 6 December 2010, the father says that he sent a letter to the mother offering to support X, and asking to be part of X’s life. The mother denies receiving this communication. Her barrister, presumably on her instructions, put to the father that he had fabricated either the copy of the email annexed to his affidavit, or was lying about having sent it. Nothing turns on this dispute but it is in indication of the extent to which the parties’ accounts of their communications diverge.
In May 2011 the father returned to Victoria.
The mother alleges that the father’s niece attended at her home in August 2011 and asked to see X. She says that she refused this request and that police later arrived at her home to conduct a welfare check on X. The mother says that thereafter the police applied for an intervention order on her behalf but the application was dismissed.
In late 2011, the mother and X moved to Town E where the mother continues to live. The mother deposes to deciding to move to Town E because she wanted to get away from the father and to obtain support from family members.
In 2012, the mother sought assistance from the Victoria Legal Aid Child Support Service to obtain financial support from the father. She alleges that DNA testing took place because the father initially denied paternity. The father says that he sought time with X at this point but the mother would not agree.
In 2013 the mother applied for an intervention order naming herself and X as Affected Family Members.
The father issued parenting proceedings in this Court on 30 July 2013. The mother filed responding material proposing that X spend no time with him. The father deposes to meeting X for the first time on 14 September 2013, pursuant to interim orders. X was at that time two years and ten months old.
The father issued contravention applications alleging that the mother had breached the interim orders on 31 March 2014 and 11 June 2014.
On 21 November 2014, final parenting orders (“the 2014 orders”) were granted by consent. Those orders provided for X to live with his mother and spend alternate weekends and half of his school holidays with the father.
In April 2017, the police filed an application for a further intervention order, listing both the mother and X as affected family members.
On 29 June 2016, the father filed fresh proceedings by way of an initiating application.
On 16 January 2017, final parenting orders (“the 2017 orders”) were granted by consent. Those orders provided, in similar terms to the 2014 orders, for X to live with the mother and spend alternate weekends and half of his school holidays with the father, with changeovers at Town E Golf Club. The father was also permitted to telephone X each Tuesday evening.
On 28 November 2018, the father issued a contravention application alleging a number of breaches of the 2017 orders. A number of the alleged breaches were struck out, leaving 11 alleged breaches in respect of the phone calls for which the 2017 orders provided.
His Honour Judge McNab (as his Honour then was) found that the mother had contravened those orders and that she had made no reasonable attempt to comply with the orders for telephone communication. His Honour noted that:
… there was no adequate evidence before the Court that she had taken any positive steps to encourage the child to take the phone calls. It is notable there is no evidence that she returned any of the father’s calls on the evenings or the days following the dates when phone calls are made by him.[1]
[1] Belko & Rushworth [2019] FCCA 685 at [25].
His Honour ordered on 8 February 2019 that the mother must complete a Parenting Orders Program at Region B Family Care, at her expense.
On 6 June 2019, the mother sought and obtained an ex parte interim intervention order against the father. The mother and X were named as Affected Family Members. On 14 August 2019, the mother agreed to withdraw her application for an intervention order on the basis of a limited undertaking given by the father without admission, which prohibited him from committing family violence.
The father issued further contravention applications on 19 June 2019, 12 July 2019, and 21 October 2019.
On 22 September 2019, the father filed an application in a proceeding in which he sought to vary the 2017 orders. In that application, the father sought orders inter alia that X live with him and that he have sole parental responsibility for X.
On 30 October 2019 Judge Carter (as her Honour then was) delivered judgment in respect of the contravention applications filed on 19 June 2019 and 12 July 2019.[2] Her Honour found the mother to have contravened the orders in respect of telephone communication on 14 occasions and the orders requiring her to provide the father with medical information about X on two occasions. Her Honour adjourned the contravention proceedings to 18 November 2019 to consider variation of the 2017 orders and the appropriate sanctions for the mother.
[2] Belko & Rushworth [2019] FCCA 3112.
On 18 November 2019, Judge Carter ordered the mother to enter into a bond upon the condition that she be of good behaviour and comply with orders for a period of 12 months. Her Honour also ordered the parties to file material with respect to the proposed variation of the 2017 orders.
On 12 December 2019, the father filed the Initiating Application which falls for decision before me. The mother failed to file her responding material pursuant to the orders of Judge Carter.
In about 2019, the mother applied for a further intervention order.
On 29 March 2020, the father applied for a recovery order. On 3 April 2020, interim orders were made by consent providing for X to be delivered to the father at 4:30pm on that date and returned to the mother on 13 April 2020, with X’s alternate weekend time with the father to resume on 25 April 2020. An independent children’s lawyer was also appointed on that date.
In July 2020, X alleged to the mother that the father had thrown a remote control towards him. This allegation and the surrounding evidence is discussed later in these reasons.
In or around late 2020, the mother applied for a further intervention order. On 3 June 2021, an intervention order was made for five years. The father has lodged an appeal against that order.
The father filed three further contravention applications on 24 August 2020, 4 November 2020 and 8 January 2021, in respect of telephone contact and spend time arrangements.
The contravention application filed on 24 August 2020 was withdrawn at the hearing before Registrar M on 5 October 2020. The contravention applications filed on 4 November 2020 and 8 January 2021 were withdrawn at the hearing before Registrar N on 18 March 2021.
On 7 October 2020, the father filed an application in a proceeding. Interim orders were made on 12 October and 20 October 2020 which in summary provided for time over the summer holidays of 2021.
On 6 April 2021, her Honour Judge Stewart made orders for the mother to file responding material, which she still had not done pursuant to the orders of 18 November 2019. Her Honour also ordered that the parties and X engage in reportable family therapy with a therapist nominated by the independent children’s lawyer.
The parties first attended on Dr O on 18 May 2021 for family therapy.
The matter was listed for final hearing on 19 July 2021 but did not proceed on that date. Interim orders were made instead providing for X to spend time with the father each alternate weekend from 10am on Saturday until 5pm on Sunday, for a week in the term three school holidays and on Father’s Day.
On 31 July 2021 X was due to spend time with the father. The mother says that the father texted her to say he had arrived at changeover but that she could not see him anywhere. The mother deposes to X screaming and refusing to get out of her car. In her affidavit she complains that the father did not “actively involve himself” with the changeover and “merely demanded” that she bring X to him. The father said in cross-examination that he was unwilling to approach the mother for fear that she would make further allegations about his behaviour. In my assessment, the father’s caution was justifiable, especially as the mother had previously alleged that he had approached her car at changeover in support of a previous intervention order application.
The father was unable to attend for the next period of time due to take place on 14 August 2021 with changeover in Town E. He sent an email to the mother and her lawyers on 12 August explaining that he was unable to drive due to a workplace injury and could not travel by train as his injury left him unable to carry the luggage he would need for a weekend with X.
The mother cancelled the visit due to take place on 28 August 2021 as she was unwell due to side effects of the COVID-19 vaccine.
The father cancelled the visits due to take place on the weekends of 4 to 5 September and 11 to 12 September as he remained unable to drive to Town E for changeover.
The mother took X to New South Wales to visit her then partner, Mr P, on 7 September 2021. X was due to spend time with the father for the term three school holidays from 18 September 2021. The mother was delayed in bringing X to Town E for changeover as she and X had been unable to leave New South Wales due to COVID-19 restrictions. She deposes to taking X home en route to changeover to collect his bag. She says that X then refused to leave the house. She deposes to making “every effort” to persuade him, including telling him that she would get into trouble if he did not attend. She eventually sent the father a text message telling him that X would not attend, saying “he is a shattered child”. Time did not take place.

X was due to spend time with the father next over the weekend of 9 to 10 October 2021. The mother says that she was again unable to persuade X to leave the house to drive to Suburb Q for changeover. Time did not take place.
The matter was listed for final hearing on 28 October 2021. On that date the matter proceeded as an interim defended hearing.
On 29 October 2021, the Court made interim orders for X to live with the father and spend no time with the mother. The reasons for judgment were reserved.
On 6 November 2021, and pursuant to those orders, the mother delivered X to the father in whose care he remains at present. He transferred to P School where he continues to attend.
The father said in his viva voce evidence that it took a few weeks for X to settle in his care. He said that he had reprimanded X about behaviour such as ripping his food apart and leaving tissues and nail clippings around the house. He said that, after the incident on 31 January 2022 when the police were asked to check on X’s welfare by his adult half-sibling, Ms R, X’s behaviour improved and “things were really good” until about May or June 2022.
On 28 January 2022, orders were made for X to spend supervised time with the mother once per fortnight. That time did not begin for some months because the mother said that she could not afford the supervision fees. She then proposed an alternative supervisor, who was rejected by the father, and delayed in completing a form required by Family Contact Services Ltd.
The mother spent supervised time with X each fortnight from 20 May 2022 onwards save for 3 June 2022 when the mother had COVID-19 and was unable to attend.
The father says that X began complaining of anxiety from late May 2022 onwards. He deposes to calling paramedics when X was very anxious on 31 May 2022. The paramedics checked X’s vital signs and recommended breathing and relaxation techniques.
The trial of this matter took place before me on 12, 13 and 14 October 2022.
On the morning of 14 October 2022, Counsel for the mother told me that X had spoken to his adult half-sibling, Ms R, and had expressed distress and anxiety about the court process. I was told that X had said he was upset that I had not spoken to him and that he had not taken part in the trial. I was also told that he did not understand what would happen after the end of the trial.
In the light of those concerns, and without objection by Counsel, I arranged for a Senior Court Child Expert to speak to X by telephone and to explain that each of his parents had been able to explain their views to me in great detail over the last three days and that I had heard about his views from the Family Consultant. The Senior Child Court Expert also told X that I would need to consider that evidence very carefully over the next few weeks and that whilst I could not give a fixed date by which my decision would be ready, I would ensure that it was completed no later than the end of November 2022.
At the conclusion of the trial, I also made an order requiring the father to deliver X to Court Children’s Services on the date of judgment delivery. I have arranged for a Senior Court Child Expert to meet there with X and to explain my orders and these reasons to him in a manner which is appropriate for his age.
material relied upon
At the hearing, the father said that he relied upon:
(a)his case outline filed on 7 October 2022;
(b)his amended initiating application filed on 11 September 2022;
(c)his trial affidavit filed on 10 September 2022;
(d)his affidavit in reply filed on 28 September 2022;
(e)the affidavit of Dr O, family therapist, filed on 28 September 2022; and
(f)the affidavit of Ms S, professional supervisor, filed on 10 October 2022.
At the hearing, the mother said that she relied upon:
(a)her case outline filed on 5 October 2022;
(b)her amended response filed on 19 September 2022;
(c)her trial affidavit filed on 19 September 2022
(d)the affidavit of Ms R, the mother’s adult daughter from a previous relationship, filed on 19 September 2022;
(e)the affidavit of Dr O, family therapist, filed on 28 September 2022; and
(f)the affidavit of Ms S, professional supervisor, filed on 10 October 2022.
At the hearing, the independent children’s lawyer said that he relied upon:
(a)his case outline filed on 6 October 2022;
(b)the affidavit of Dr O, family therapist, filed on 28 September 2022; and
(c)the affidavit of Ms S, professional supervisor, filed on 10 October 2022.
THE PARTIES’ POSITIONs
The father
The husband proposed final orders in his amended initiating application filed on 11 September 2022 providing for him to have sole parental responsibility for X and for X to live with him.
In a minute provided at the end of the trial, the father proposes that there be supervised time for three hours each month at the K Contact Service in Suburb T, or if that service is not available at another supervised contact service in the Suburb L area, and at the mother’s expense. He proposes there be mediation to review the mother’s time, facilitated by a registered Family Dispute Resolution Practitioner, after twelve months of such supervised time.
He wishes also to change X’s surname to Rushworth-Belko. He seeks that upon the expiry of the current orders made pursuant to the Family Violence Protection Act2008 (Vic), each party be restrained from committing family violence against each other and in particular from approaching within 200 metres of the other’s person, residence or workplace save as necessary to carry into effect the orders of the Court.
The mother
The wife proposed final orders in her case outline filed on 5 October 2022, and in a minute of orders provided at the end of the trial, for her to have sole parental responsibility for X. She proposes there be ancillary orders for her to advise the father of any proposed major long-term decision, to consider any view expressed by him and to notify him of any decision that she makes.
She seeks an order providing that X be returned to her care and live with her thereafter. She proposes that X spend time with the father on alternate weekends from Friday after school until 12 noon on Sunday as well as half of the school holidays. She proposes that changeover take place at X’s school or (for weekend time) Town E Police Station or (for holiday time) alternating between Suburb Q Reserve and Town E Police Station. She suggests that special days be divided evenly between the parties, and there be specified times for video and telephone calls between X and the father.
She proposes that X and the father attend therapeutic counselling with Ms U which she seeks that he pay for. She proposes similar orders to the father for the exchange of information between the parents and for non-denigration.
The independent children’s lawyer
The independent children’s lawyer had not met with X nor spoken to him over the telephone. I consider this omission surprising in a case where the wishes of a young person aged almost 12 are of such central relevance.
The independent children’s lawyer proposes final orders in his case outline for the parties to have equal shared responsibility and for X to continue to live with the father. No orders for time between X and the mother are specified in the independent children’s lawyer’s case outline.
At the end of the trial, Counsel for the independent children’s lawyer provided a minute of orders which proposed that the parties have equal shared parental responsibility for X but that the father have “the final say” in the event of a dispute. Orders in those terms have been described as “inimical to the concept of equal shared parental responsibility” and would operate as “an inherent disincentive for that party to exercise the parental responsibility with the ‘genuine effort’ to compromise demanded by the law”[3]. The independent children’s lawyer is in effect seeking that the father have sole parental responsibility.
[3] Pavli & Beffa [2013] FamCA 144 at [15], [38], [49] and Ditcher & Fetzer [2014] FamCA 175 at [87]-[88].
The independent children’s lawyer’s minute also provided for X to spend time and communicate with the mother on one weekend per month, and for half of the school holidays, with changeovers at Town V. In her closing submissions, Counsel for the independent children’s lawyer indicated that the independent children’s lawyer would also have no objection to the father’s proposal for monthly supervised time.
THE EVIDENCE
General evidentiary issues
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
The father sought initially to rely on the affidavit of Ms W. She was required for cross-examination but the father was unable to produce her. He therefore withdrew his reliance upon her affidavit.
Evidence of the father
The father was cross-examined at length by Counsel for the mother and by Counsel for the independent children’s lawyer. His evidence was given in a straightforward manner which was consistent with the contents of his affidavit. He made a number of appropriate admissions against interest. For example, when asked about an allegation that he had described the mother to the supervisor as “manipulative”, he immediately admitted that he had done so. He accepted that the comment had been unnecessary and expressed regret for making it. He also gave frank evidence about occasions when he had left X on his own when assisting a friend by delivering pizzas, and the struggles he had had in attempting to persuade X to have regular showers.
I find no basis on which to conclude that his evidence generally lacked reliability.
Evidence of the mother
The mother’s presentation during her viva voce evidence was variable. At times she paused for extended periods before giving an answer. At other points she launched into impassioned responses and her speech became pressured, usually when speaking about the risk that she perceives the father as presenting to her and to X.
The mother appeared unable to make concessions against interest. She did not accept that there had been occasions when her behaviour had caused or exacerbated X’s distress, although she admitted, for example, that X had heard her crying immediately after the hearing on 29 October 2021. She displayed rigidity of thinking. For example, even when confronted with contradictory statements made by X, she expressed herself as being completely confident that everything X had told her about the father’s behaviour was true.
The viva voce evidence given by the mother indicated that she has not attempted to consider any perspective other than her own. When I asked her if she had considered the possibility that what X was telling her was what he believed that she wanted to hear, a suggestion made by Ms Y in her report, she said she “[hadn’t] really thought about it.”
The mother’s evidence was frequently inconsistent with evidence from other sources. She said in answer to a question from Counsel for the father that she could not remember whether she had been present on any occasion when X had discussed with a third party the allegation that the father had thrown a television remote control at him. A few minutes later she conceded that she had taken him to Town E Police Station shortly after the alleged incident and had been with him at the front counter of the Police Station when he described the incident to the police.
The mother explains in her affidavit that she had sought medical advice for X while he was having a panic attack on 5 July 2017. A few paragraphs later and in response to the father’s description of X becoming extremely anxious in the car en route to see the mother, the mother deposes that “X has never been anxious with me or around me or because of me”. The mother’s evidence is rife with internal inconsistencies, of which this is just one example, and most of which result from the mother’s determination to ascribe every difficulty experienced by X to the abuse which she believes the father has inflicted upon him.
The mother explained any historical inaccuracies, or her inability to recall events, as the result of all that she and X had been put through by the father. This was one of many examples of the mother laying all blame for problems in her life and in X’s life at the feet of the father. She did not impress as a reliable historian.
For these reasons, where there is a factual conflict between the evidence of the father and that of the mother, I prefer the account of the father.
Ms R
Ms R (“Ms R”) is the 24-year-old daughter of the mother and half-sibling of X. She affirmed an affidavit filed on 19 September 2022 and was cross-examined.
Ms R deposes to meeting with X on four occasions between early December 2021 and May 2022 and speaking to him on the telephone on about 12 occasions between late December 2021 and mid-September 2022. The father is to be commended for supporting X in spending time and communicating with Ms R.
Ms R deposes to receiving a telephone call from X on the evening of 31 January 2022. She says that X was in tears and told her that he was scared. She says that she called the Department of Families Fairness and Housing (“the Department”) to “get advice on the matter as [she] did not want to make anything worse for X and put him at risk.” She offers no explanation as to why she did not contact the father to discuss with him what was going on.
There was then an exchange of text messages between Ms R and X:
[Ms R]:          Okay, tell me what’s happening right now and what you’re feeling.
[X]:                I’m scared and his watching tv
I’m in my t
[Ms R]:And tell me, are you safe? Do you feel safe right now? And if not, why.
[X]:                Room
Um. I’m sort of
[Ms R]: Try to answer the best you can. I need you to text me what has happened, exactly what you said to me on the phone call when you just called me.
[X]:We were having dinner and I was picking at my food and he said what are you doing and then got pisst at me for doing that he said I’m turning the internet off you don’t deserve it as well as something is wrong with you you are having 2x the appointments
(Errors in original)
(Emphasis added)
It is clear from the text exchange that Ms R wanted a written account from X in addition to what he had said to her over the telephone. In cross-examination, Ms R said that she wanted X to respond in writing so that she “could show someone what was happening to him” and provide what he had written to “further resources” by which she said she meant the Department or the police. Although Ms R denied that she was trying to assist her mother’s case, she advocates strongly in her affidavit for X to be returned to the care of their mother.
If X was as distressed and frightened as Ms R alleges, having to write down what his father had done would have caused him further trauma. I am satisfied that during her communication with X on 31 January 2022, Ms R was more concerned about obtaining written evidence for use by her mother than about ensuring X’s safety.
Ms R deposes that the messages which X sent to her caused her to “have concerns for his safety” and that those concerns led her both to speak to the Department and to ask the police to conduct a welfare check. That was a wholly disproportionate response in circumstances where X’s main complaint seemed to be that the father had turned off the internet at home. If police officers were required to attend every time a parent deprived a teenager of Wi-Fi access, they would have very little time to do any other work.
For the reasons set out, I attach very limited weight to the affidavit of Ms R.
The family therapist - Dr O
Dr O is an experienced registered clinical and forensic psychologist. She conducted reportable family therapy with X and his parents from 18 May 2021 until 21 September 2022. Her reports of that therapy are annexed to her affidavit filed on 28 September 2022. Dr O was cross-examined by Microsoft Teams.
Dr O first met X and his mother on 18 May 2021, when she attempted to take a history from both of them. Both X and the mother described the father as being physically aggressive to X. They alleged that X often returned from the father’s home with bruises and said that time had stopped due to the father throwing a remote at X.
Dr O saw X with the father on 21 May 2021. Dr O records that X told her that “his mother does not like his father, that she is terrified of his father and scared of the father and doesn’t like him.” She also records that X was able to tell his father in a “forthright” manner about some behaviours of the father that he did not like, such as “cracking” his back. She notes that the father realised the importance X’s perceptions and apologised so as to “relieve his son of any anxiety”.
A further session with X and the father took place on 7 June 2021. Dr O records her reflections as follows:
…either we have here a father who has been a monster with the child legitimately feeling very scared of the father or we have here a situation in which the child has been significantly alienated from the father. I am not suggesting that the father has been perfect by any stretch of the imagination and as noted above all parents make mistakes. What is interesting however is that there is an avoidant attachment on the part of the child and from what I have available to me thus far the intensity of the avoidance and rejection is not mirrored by what I understand to have been interactions between the father and child.
Dr O saw X and the father again on 25 June 2021. She ended that session early due to X’s “ongoing passive hostility” to the father. She notes
My observations of [X] are that he is being harmed by what appears to be his alienation of him from his father by the mother. I would anticipate that without such alienation, that [X] would have a more ambivalent attachment to his father which is very different to the strong avoidant attachment he has to his father.
During the session with X and the father on 6 August 2021, Dr O noted that X’s response to the father, whilst still angry, was shifting towards ambivalence, in that he was willing to continue to interact with the father and appeared to benefit from that interaction. Dr O noted the father’s appropriate attempts to remind X of the good times they had enjoyed together.
Dr O described the sessions with X and the father on 27 August and 17 September 2021 as difficult because of X’s ongoing hostility and rudeness to the father. In her report dated 17 September 2021, she expressed concern that X said he would not spend the time due to take place with the father during the coming term holidays, and that the mother had said she could not take X to the father’s car at changeover or have anyone else with her at changeover who could do so. She expressed concern about X’s development and mental health. She suggested that it would be wise for X to be placed in the father’s care for two or three months with no or minimal contact with the mother to allow a relationship to develop between X and the father.
Dr O met with the father on 4 November 2021 to discuss preparation for the father and the extended paternal family for X’s transition into the father’s care. Dr O describes as “deeply touching” the large number of paternal relatives who attended the session in person, and their deep commitment to X’s care. She noted that the relatives did not appear to have any ill will to the mother nor did she observe them to speak ill of her.
Dr O saw X and the father together on 16 November 2021. She noted that X participated well and was not rude to the father. She saw X on his own for part of the session. X told her that there was nothing he was unhappy about and that he was enjoying his relationship with the father. Dr O commented on how easily X appeared to have transitioned into the father’s care.

On 1 December 2021 Dr O saw X and the father and noted that they often made eye contact and smiled at each other. She again spoke to X without the father being present. He told her that he was not experiencing any difficulties but would like to see his mother. X then said that everything his mother had said was correct and that his father would not dare to hurt him. Dr O noted the inconsistency between the latter comment and his contented presentation when with the father.
On 25 January 2022, Dr O noted that X had enjoyed Christmas with the father, and that his sister Ms R had been able to visit three times. Dr O suggested that X’s time with the mother resume on a supervised basis.
On 9 February 2022, Dr O spoke to X on his own in between conversations with both X and the father. She asked him if his father hurt him in any way and X shook his head. X confirmed how much he wanted to see his mother.
A similar session took place on 5 April 2022 when X told Dr O that he was very happy with his father and would like to stay with his father but also wanted to see his mother.
On 22 June 2022, Dr O observed that X appeared very comfortable with the father and had a secure attachment to him. X said that he knew his father looks after him very well but he missed his mother.
On 16 August 2022 Dr O saw X with the mother. X told Dr O that he wanted to return to the care of his mother. Dr O noted:
[X] was observed with his mother. His mother was very upset and angry about what she perceives has transpired. She expressed anger about the process in front of [X]… [X]'s mother was not observed to show insight into the possible impact on [X] of her ongoing anger. …The session between [X] and his mother was unfortunately dominated by his mother's expression of her concerns. [X]'s mother was adamant that I advocate for [X] to return to her care. She indicated to [X] that she has done everything she can for [X] in terms of what she considers to be in his best interests. [X] was observed to be absorbing the distress conveyed by his mother. [X] said he acknowledged they are both very sad.
(Emphasis added)
In her viva voce evidence, Dr O added that towards the end of the session X asked her to stop the mother from talking in this way. She said that the mother was unregulated during this session and indicated that the mother should have expressed her views when X was not present.
On 21 September 2022, Dr O saw X and both parents for the last time. When she saw X on his own, he told her that he hated being with his father and that his mother is a better parent. He said that he had more fun and a better life with her. He complained that his father was still not admitting throwing the remote at him. He found it hard to identify anything he had enjoyed in the care of his father and that he “barely” wanted to see his father after returning to his mother’s care. Dr O noted that when she saw X with his father, he agreed with his father that they mostly eat home-cooked food whereas during his Zoom call with the mother, X told Dr O that they ate mostly takeaways.
I am troubled by the speed of this dramatic shift in X’s expressed views. From November 2021 to June 2022, X expressed contentment in his father’s care. The observations of Dr O of the father-son relationship were equally positive. Within three months of the resumption of his time with his mother, X was expressing ambivalence about his father. One month later, all of his comments about the father were negative and he had reverted to complaining about historic issues such as the alleged throwing of the remote.
When Counsel for the independent children’s lawyer asked Dr O why she thought X’s expressed wishes had changed between November 2021 and September 2022, she opined that the change arose as a result of X reconnecting with his mother. She said that this was part of a clear pattern which she described as unfortunate and very sad for X. That evidence is consistent with the chronology which I have set out in these reasons. I place considerable weight upon it because of because of Dr O’s experience, her detailed reports which were prepared immediately after each session, and because of her ability to observe the ebbs and flows of X’s wishes as well as his interaction with his parents.
I am satisfied that the shift in X’s expressed wishes from about May or June 2022 onwards was the result of the resumption of his time with his mother.
The mother seeks to rely on an email sent by Dr O to her on 16 September 2022 in which Dr O says
As noted during our call, while it ultimately up to the Court, I intend supporting [X]’s return to your care.
(Errors in original)
In cross-examination, Dr O confirmed that she had sent the email and made it clear that she saw her role as the family therapist as requiring her to support X’s expressed wishes. She made it clear that it was not part of her role to make recommendations about final parenting arrangements. Dr O is a very experienced therapist. I do not have a copy of the terms on which Dr O was engaged or instructed by the independent children’s lawyer and I cannot therefore form a view as to the ambit of her role. However, her perception of her role is clearly very different from that of the family consultant or indeed the Court and for this reason, I do not see her support of X’s wishes as conflicting with my decision.
I attach significant weight to the observations of Dr O and her evidence as to the impact on X of his reconnection with his mother in May 2022. I do not attach significant weight to her support of X’s wishes because of Dr O’s own view that it was not her role to recommend final parenting arrangements.
The professional supervisor – Ms S
Detailed notes of each visit attended by the mother and X were prepared by the contact supervisor and annexed to the affidavit of Ms S filed on 10 October 2022. It was unclear whether the notes relating to the visit on 7 October 2022, which appeared to have been prepared on 10 October 2022, were annexed to that affidavit or merely sequential to it in the independent children’s lawyer’s court book. Those notes were therefore tendered as an exhibit by the father.
Ms S was not required to attend for cross-examination and her evidence was therefore unchallenged.
No party suggests that the mother denigrated the father during the periods of supervised time or that her behaviour during time was intended to undermine X’s relationship with the father.
The first family report writer – Ms Y
Ms Y’s report was dated 3 March 2021. Ms Y notes that she offered to meet X in person but that this offer was not accepted by the mother “for various reasons” which are not specified in the report. Ms Y considered it “less than ideal” to interview X by telephone.
X was ten years and three months old at the time of his telephone interview with Ms Y. He told her that he refers to the father as “Mr Belko” saying “I don’t want him to be my dad, maybe I called him dad once but not now, he doesn’t act like a dad, I don’t like him, he is trying to keep me away from my mum”. He described the father as “violent” and said that he worried about the father coming to his house and “smashing down the door”. He was unable to describe anything positive about the father.
Ms Y noted that the mother held a strong belief that X was not safe in his father’s care. She opined that:
… [X]’s solution to long standing parental conflict is to emotionally distance himself from [the father] and the associated stress that this involves and to refuse to have any form of contact with him. It is also considered that [X]’s opinions of [the father] now mirror that of [the mother], with statements made by this child that he trusts in what his mother says and her responses.
Ms Y goes on to opine that:
… the mother’s strongly held beliefs have directly resulted in [X]’s reluctance and comments, this subsequently affecting this child’s opportunity to have a meaningful relationship with [the father] … It is considered that [X] would benefit from an absence of exposure to adult conflict and strongly held negative and judgmental views of the other parent. Continuing exposure to these issues will have a profound and damaging emotional impact upon this child, this clearly not in his best interests.
(Emphasis added)
Ms Y was not required to attend for cross-examination and her evidence was therefore unchallenged. Her observations about the mother’s stance are consistent with my observations. Her assessment of the impact on X of the exposure to his mother’s views is consistent with Dr O’s evidence. I place considerable weight on Ms Y’s evaluation of the damage caused to X by the views and conduct of the mother.
The second family report writer – Ms Z
Ms Z’s report is dated 26 July 2022. She lists the Court documents filed since 12 December 2019 as having been read in preparation for her report. She met with X and the parties in person on 13 July 2022, at which time X had spent supervised time with his mother on three occasions.
Having interviewed both parents and heard their conflicting accounts as to the reasons for their dispute, Ms Z notes that while the mother insisted that she was willing to co-parent with the father, “the past nine years had demonstrated the parents are effectively unable to do so.” Ms Z goes on to say:
It cannot be determined if one parent has been solely responsible for the dynamic of their coparent relationship or if it has been a joint contribution to the dysfunction.
Ms Z confirmed in cross-examination that she was aware of the occasions on which the mother had been found to contravene the parenting orders. However her report refers to “allegations” that the mother had obstructed X’s relationship with the father. That reference suggests that she had not read the reasons for judgment of Judge McNab and Judge Carter which set out their Honours’ factual findings about the mother’s breaches of court orders. The reasons for judgment would have provided her with significant and relevant information about the mother’s role in the difficulties which affected X’s time with the father.
Ms Z notes that the father “appeared unaware of the exact reason” for the interim orders of 29 October 2021 placing X in his care. In her report, she goes on to criticise the father for the explanations which he gave X, namely one occasion when he had explained that Dr O had recommended the change and another when he told X that his “bullying” behaviour with online friends was the reason. In discussing X’s current issues with anxiety, Ms Z says:
It is notable that [the father] was unable to articulate a clear rationale for [X] being placed in his care. This is a narrative that requires clarity and specifically one that is without blame.
The reasons for the orders of 29 October 2021 were reserved. They have not yet been published. As a result neither parent was able to give X an accurate explanation of the Court’s reasons for that decision. Had the father said anything to X about the mother’s behaviour in this regard, he would have risked criticism for denigrating her. In my view, it follows that the father should not be criticised for his attempts to provide an explanation.
Ms Z notes that during supervised time, X raised various health concerns with his mother. She goes on to conclude, based on X seeking reassurance from the mother about his health, that he lacks trust in his father. An alternative explanation is that X is now comparing the competing narratives of his parents. I am not persuaded that his questions to his mother or his father’s more muted response are a reliable indication of his level of trust in each parent.
Ms Z was asked by Counsel for the independent children’s lawyer whether she had considered the possibility that X’s wishes as expressed to her were the result of the mother’s influence. Ms Z accepted the possibility that X’s views were the result of his alignment with the mother but said that that was not “the approach” that she had taken. She said that her focus was on X’s current experience of being placed with his father, and on meeting his more immediate emotional needs. Whilst X’s current experience is important, the role of the Court is to look beyond the immediate easing of his distress and to put in place arrangements which will be in his best interests for the rest of his childhood. I consider the approach taken by Ms Z to be unduly narrow.
Ms Z was asked by Counsel for the independent children’s lawyer about her explanation for X’s expressed contentment at the start of the period in his father’s care, followed by increasing discontent as his time with the mother resumed. She suggested that maybe X had been content to live with his father on a temporary basis but that it was “dragging on”, he now knows what he wants and is making that clear. She accepted, however, that an alternative explanation was that X’s views were the result of alignment with the mother and the mother’s inability to give him ‘emotional permission” to enjoy a relationship with the father. In my assessment, the evidence before me and the observations of Dr O point much more strongly to the latter explanation. It is one which would perhaps Ms Z would have considered in more detail had she read Ms Y’s report before completing her own.
Ms Z indicated in her report that she supported X’s wish to return to his mother’s care. Ms Z opined in her report that X was more closely bonded with his mother than his father, and that he is “of an age where children will elect to spend time with the parent to whom they relate the most.” Ms Z does not appear to take into account the probability that X is more closely bonded to the mother because she has not allowed him to have a close relationship with his father.
Ms Z notes that the mother expressed confidence that X would “more willingly” attend time with the father. Her report does not indicate whether she engaged in any reality testing with the mother about this, or what the mother would do if X refused to attend as he did so often in the past. Ms Z recommends that X and the mother have ongoing professional support to “scaffold” X’s time with the father but does not express a view about how such support would succeed when therapy with Dr O did not. In relation to these recommendations, Ms Z’s report fails to take into account the mother’s previous failure to adhere to Court orders which is set out in the reasons of Judge McNab and Judge Carter.
In her viva voce evidence, Dr O accepted that there was a risk that X’s time with the father would “fade out” if he returned to his mother’s care but suggested that the father might also fail to support the mother’s time with X. Her basis for this suggestion seemed to be that she considered the father’s proposal for supervision of the mother’s time to be lacking any sound basis and to indicate “continuing rigidity”. That observation does not align with my observation of the father’s approach to X’s relationship with the mother or the maternal family. It is uncontroversial that the father facilitated regular time and communication between X and his sister, Ms R, and his maternal aunt and cousins. Ms Z conceded that if the father’s allegations that the mother had undermined his relationship with X were accepted by the Court, then supervised time would be appropriate. I have found that the mother has undermined X’s relationship with the father and it follows that the father is not to be criticised for proposing supervised time.
Ms Z recommends that X live with his mother and that the parent with whom he lives is able to decide any major long-term issues about which the parents cannot agree. She recommends that he spend alternate weekends with his father (or with his mother if he lives with his father) and that school holidays are divided between the parents’ households. She was not cross-examined about spend time arrangements.
The Court is under no obligation to accept the recommendations of a Family Consultant. As the Full Court said in In the Marriage of Hall:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities …
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.[4]
[4] In the Marriage of Hall [1979] FamCA 73 at [24].
That case has been cited with approval in the Full Court case of Andrew & Delaine.[5]
[5] Andrew & Delaine [2009] FamCAFC 182 at [72].
I was assisted by the observations of Ms Z in relation to X’s expressed wishes. However, I also had the opportunity to read the reasons of Judge Carter and Judge McNab and the report of Ms Y as well as to consider the entire history of the matter and to observe the cross-examination of the parents. Ms Z’s evaluation lacked the consideration of the mother’s failure to comply with previous orders and the influence of her views on X which is of central importance in this case. In my assessment her approach did not challenge the mother’s views sufficiently. She did not in my view give sufficient consideration to the risk of X losing his relationship with his father if he returns to the care of his mother.
With that additional information, and for reasons which I will discuss, I have reached a different conclusion to the one which she recommended.
parenting proceedings – legal principles
Part VII of the Family Law Act 1975 (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to parenting orders. I have regard to both the objects and principles set out in section 60B of the Act.
In Masson v Parsons, in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “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”.[6]
[6] Masson v Parsons [2019] HCA 21 at [8].
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, I must regard the best interests of the child as the paramount consideration. In determining what is in X’s best interests I must consider the matters prescribed in section 60CC of the Act:
·the benefit to the child of having a meaningful relationship with both of the child's parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In balancing these considerations, I am required to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect X from harm
Allegations made by the mother
The mother did not, through her Counsel, ask me to make factual findings in relation to the allegations of family violence which she sets out in her affidavit and to which she referred in her oral evidence. I do however need to consider those allegations in these reasons because the mother during her evidence referred repeatedly to the father’s ‘behaviours” and what had been done to X by the father. If accurate, those allegations provide an explanation for X’s anxiety and the mother’s fears about X spending time with Father, and also guide my approach to X’s anxiety and how to remedy it. If not, an alternate explanation and approach are required.
Many of the mother’s allegations are couched in vague and conclusory language. For example, the mother deposes that since she first met the father in 2009, he has “been aggressive and controlling” towards her. She refers to “abusive” telephone calls and the father “approaching [her] with the aim of intimidating her”. This lack of particulars is unhelpful.
The mother deposes to the father coming to her home in 2009 or 2010 and says that after she asked him to leave, he turned towards her “with his fist clenched and attempted to punch [her] in the face”. X told Ms Y that his mother had told him that the father had tried to punch her and that “mum has never lied to [him]”. In her viva voce evidence, the mother said that X had asked her if the father had hurt her and she had told him that the father had “attempted to hurt [her]”. It did not seem to have occurred to her that she did not need to share this information with X or that this information might be distressing for him.
The mother seeks to rely on notes annexed to her affidavit which she says refer to “a number of incidents where Mr Belko has perpetrated violence against X and/or me” dating between 25 May 2018 and about July 2020. The notes are a mixture of dated entries and lists of complaints which lack dates or context. The majority relate to comments which X is said to have made to the mother about his treatment by the father. Many of the others relate to X presenting as pale or tired after time, wetting his bed or having health issues which the mother appears to attribute to care provided by the father. Whilst there are some references to what the mother sees as abusive behaviour (for example, the father approaching her car at changeover with a facial expression which she considered threatening) or text messages which she describes as abusive, those allegations are very few compared to the litany of other complaints.
Doing the best I can with the material placed before the court and the manner in which it was presented by the mother, I can find only one text message sent by the father that can be described as rude or insulting. Relevantly, that message is adduced by the father not the mother. On 23 April 2017 the following exchange took place:
Mother: Drop off is the carpark. You are not to be on the premises in future.
Father:You really don’t have to send me these type of messages because you feel inadequate. [X] is growing up to be a very polite and smart, well mannered boy.
I cannot locate any other messages sent by the father which go beyond a factual change of information. I note also that there is no indication in the mother’s text messages to the father that she is frightened of him. Many of her messages to the father are demanding, verging on peremptory. There is nothing in the written exchanges adduced by the mother that indicates an imbalance of power between the parties or that the mother was frightened of the father.
It is troubling that the mother describes her notes as examples of violence when a close scrutiny of them reveals no allegations which even taken at their highest would justify such a finding. I am satisfied that the mother’s use of this descriptor is an indication of the lens through which she views all of the father’s behaviour.
The mother deposes to X returning from time with the father in December 2014 with scratches on his face. She alleges that when she asked X what happened to his face he said “Mr Belko did it”. She says that she “drove X straight to Town E Police Station” where he was interviewed. She does not appear to have taken any steps to find out the father’s explanation for the scratches. I find this a wholly disproportionate and inappropriate response to allegation made by a four year old child. The mother does not appear to have considered how stressful and upsetting it would have been for X to be taken to talk to the police and to make an allegation about his father.
The mother’s “notes” refer to X complaining to her on 26 May 2019 that his father had “cracked” his back and that it had hurt him. The mother relied on this allegation in support of her application for an intervention order in 2019. Dr O notes that during her session with X and the father on 21 May 2021 X raised this behaviour as something that he did not like. Dr O records the father explaining that when he did so X “found it quite acceptable and wanted to engage with the activity again”. The notes of supervised time record that on 17 June 2022 X again complained to the mother that the father had been “cracking” his back.
When cross-examined about the “cracking” of X’s back, the father said that on one occasion when he picked X up in his arms, his back had made a cracking sound. The following day X had asked him to do the same thing again and he had done so. The father said it had happened about three times. He denied that he had cracked X’s back since the 2019 intervention order.
I accept the father’s evidence. I am satisfied that the initial “cracking” happened by accident rather than design and that it is not been repeated since 2019.
The mother says that X told her during a supervised visit on 9 September 2022 that he had been told by the father that the mother had wanted to terminate her pregnancy. The father admits that he “told him the truth” which he justifies by asserting that the mother had “conditioned” X to believe that he had asked her to terminate the pregnancy.
Whether or not the father’s allegation is correct, it is not an acceptable explanation for his conduct. He could simply have told X that he did not ask the mother to end the pregnancy. There was no need whatsoever for him to tell X that the mother wanted to end it, still less to show him text messages to that effect. On this occasion, I am satisfied that the father’s conduct was inappropriate and likely to cause emotional harm to X.
The ‘remote control’ incident
The mother deposes to being told by X in 2020 that during time with the father, the father had lost his temper and thrown a TV remote control at X, hitting the headset which X was wearing. In cross-examination, she confirmed that this was the account that X had given her and that she believed it to be truthful.
X told Ms Y during her telephone interview with him on 2 March 2021
…he threw a remote control at me that almost hit me and I was frightened.
(Emphasis added)
X told Ms Z that he recalled his father being “pissed” at him and throwing the remote control which he said hit the headset he was wearing.
The mother was asked in cross-examination whether she believed X was trying to tell the truth to the best of his ability on both occasions when he described this incident to family consultants. She said she thought that he was but that “he has been through so much” which she appeared to think explained the inconsistent accounts he has given. She also said that she was unable to recall discussing this incident with any third parties in X’s presence. Counsel for the father then put to her that she had taken X to Town E Police Station on 9 July 2020 and that she had stood with him at the front counter while he described the incident to a police officer. She was unable to recall whether the account given by X on that occasion referred to the remote hitting him or almost hitting him. Again, she does not appear to have given any consideration to the impact on X of being taken to the police station to make this allegation.
The father deposes to this incident occurring on 4 July 2020. In cross-examination, the father said that he was trying to work out why a number of X’s friends had “unfriended” him on his PlayStation and that X told him to “shut up”. He admitted that he was annoyed and had thrown the remote control at the empty seat next to X. He said that he had then left the room. He deposes to X spending alternate weekends with him as usual and without any resistance or objection for about four visits (i.e. eight weeks) after that incident.
The father says that on the evening of 12 September 2020, X said to him that the mother was “stressing from all the court cases”. In cross-examination, he said that he told X not to worry and that things would work out. He said in both his affidavit and in cross-examination that on the following afternoon when he was saying goodbye to X, X suddenly screwed up his face and said very angrily “I never want to see you again”.
I accept the father’s account of this incident. I find that the inconsistency in X’s accounts over time is the result of his exposure to his mother’s fear and anxiety about his time with the father as a result of which he has been required to describe this incident on a number of occasions to different professionals.
Whilst I accept that the mother feels genuine fear and anxiety about the father, I am not satisfied that he has behaved in a way which has coerced or controlled her or has otherwise caused that fear. I am not satisfied that the father has engaged in family violence with respect to the mother or to X.
The benefit to X of having a meaningful relationship with both parents
There is no definition of the word “meaningful” in the Act. A meaningful relationship is one that is “important, significant and valuable” to X.[7] The legislation “aspires to promote… a meaningful relationship, not an optimal relationship.”[8] A meaningful relationship must be “healthy, worthwhile and advantageous” to X.[9]
[7] Mazorski & Albright [2007] FamCA 520 at [26], quoted in McCall & Clark [2009] FamCAFC 92 at [115].
[8] Godfrey & Sanders [2007] FamCA 102 at [36], quoted in Loddington & Derringford (No 2) [2008] FamCA 925 at [171].
[9] Loddington & Derringford (No 2) [2008] FamCA 925 at [169].
Clearly it is desirable that X maintains a relationship with both parents. The father asserts that if X returns to the care of his mother, his relationship with his father will fall away. That contention should be considered in the context of the litigation history which I have already discussed and its failure to facilitate X’s relationship with the father. Consideration of both parents’ attitudes to the other parent, and X’s relationship with the other parent, is also required.
The attitude of the father towards the mother and X’s relationship with the mother
The father was interviewed by Ms Y on 26 February 2021. He complained to her of the mother’s failure to comply with court orders and to support X’s relationship with him and expressed concern about the extent of her influence on X. He said that he was prepared to “remain friends with [the mother] for X’s sake”. His account to Ms Y is consistent with the history set out in these reasons and his complaints are rational and well-founded
The father praises the mother in his trial affidavit for her positive influence on X in respect of his healthy diet. In cross-examination, he commended her again in that regard. The father said repeatedly that he found communication with the mother difficult or impossible, saying that he believes she is still angry with him.
The father’s focus in his evidence was on X’s experiences and needs rather than on criticism or blame of the mother. He did not describe the mother in pejorative terms and instead described aspects of her behaviour with which he disagreed. Despite his perception that the mother has consistently obstructed X’s relationship with him, there was a noticeable absence of anger or vitriol in his viva voce evidence.
Since X has been in his care, the father has supported X in spending time with maternal relatives and complied with the orders for X’s time with the mother. I am satisfied that despite his concerns about her conduct, the father recognises the strong bond between X and his mother and seeks to maintain that relationship to the extent that is consistent with X’s wellbeing. I am satisfied that he is very likely to be able to facilitate a meaningful relationship for X with both parents.
The attitude of the mother towards the father and X’s relationship with the father
The mother says in her trial affidavit that she has tried to support X’s relationship with the father. She says that she is “alert to the fact of how important it is for a child to maintain a steady and healthy relationship with both parents.” In contradistinction to the father, the mother’s evidence is replete with general statements of this kind but lacks specific details of what benefit she considers X derives from his relationship with his father, or what she intends to do in the future to support that relationship more effectively than she has in the past.
The mother’s expressed recognition of the importance of X’s relationship with the father is inconsistent with her failure to comply with the orders providing for X’s time and communication with the father set out in the reasons for judgment of both Judge Carter and Judge McNab. It is also inconsistent with the evidence given by the mother in the contravention proceedings. For example, Judge Carter summarised the evidence given by the mother during the contravention hearing before her Honour as follows:
The Mother gave evidence in chief and she was cross-examined by the Father. It was clear from her own evidence and from the questions she asked of the Father that she regards [X] as being at risk in the Father’s care, and considers that he does not have a good relationship with the Father. She suggested that:-
a)        [X] hates school holidays;
b)        he is emotionally distressed following visits;
c)        the Father does not nurture or attend to [X]’s needs;
d)        the Father provides inappropriate food;
e)the Father fails to give [X] medication or attend to his medical needs;
f)the Father has locked [X] in a room and inappropriately disciplined him; and
g)[X] has returned from time with the Father with a red bottom, and on one occasion, infested with head lice.
She has taken photographs of [X]’s bottom and hair on those occasions ...
Based on the Mother’s evidence, I have significant concerns that she has involved [X] in the parental dispute and made him aware of her views that he is at risk and unsafe with the Father. The Mother appears to have limited insight about the impact on [X] of her doing so.[10]
[10] Belko & Rushworth [2019] FCCA 3112 at [36]-[38].
The mother was interviewed by Ms Y on 1 March 2021 for the purposes of her family report. The mother told Ms Y that the father had “emotionally forced” her into the sexual encounter during which X was conceived. She described the father’s proposal that X live with him as “evil and obscene” and her experience of the court process as “excruciating and agonising”. The mother said that X had required hospitalisation after being unwell in the father’s care. This serious allegation was not included in her evidence before me. The mother told Ms Z that she could not identify any good things about the father as they had never cooperated as parents.
The mother’s affidavit contains only negative information about the father. For example, she was cross-examined about the omission in her account of supervised time on 1 July 2022 of X’s comment to her that he wanted to be with both parents in a fair and shared way. It was not until the mother was presented with the supervision report of that date that she accepted that X had expressed this wish, but was unable to explain why she had not recorded it together with all of the details of X’s complaints about the father which she included in her affidavit.
The mother was asked if she could recall X describing any positive experiences with the father. After a lengthy pause she was able to think of only two occasions when he had done so. Her concessions about the father were followed immediately by negative comments, for example that the father’s commitment to spending time with X showed that “there is a care factor there regardless of the behaviour that X has had from him.” She confirmed in her viva voce evidence that she still believes that X is at risk of both physical and emotional abuse in the father’s care. She said that she is seeing a counsellor from the Region AB Centre Against Sexual Assault because she remains fearful that one day the father will do something terrible and X will not come home to her. When asked why she was receiving assistance from Region AB, the mother responded that the organisation provides assistance with respect to “any abuse”.
I asked the mother if she had a view about the reasons for which X had spoken so positively to Dr O about living with his father after the move to his father’s care, but became increasingly negative about his father from May 2022 onwards. She conceded that at the start of supervised time X had not “hounded [her] with so much negativity” but said that she had not thought about the reasons for which his complaints had increased as supervised time continued. I asked her if she thought it was possible that X was telling her what she wanted to hear and she immediately rejected that possibility. She impressed as unable to consider even the possibility that her behaviour might affect X’s response to the father.
The mother deposes that she has made “every effort to encourage X to have a relationship with [the father]” but that she is “seeking that such contact occur in a safe and child focussed manner”. I am satisfied on the basis of the mother’s own evidence that she sees the father as an inherently unsafe presence in X’s life. This fear whilst sincere is wholly disproportionate not only to the findings I have made but also to the mother’s allegations, taken at their very highest. As the family consultant who prepared a memorandum for the contravention proceedings for Judge Carter presciently observed:
The only way [X] will be able to develop and maintain a relationship with his father is if the mother is supported with psychological assistance and therapy.[11]
[11] Belko & Rushworth [2019] FCCA 3112 at [58].
That family consultant recommended that the mother attend upon a psychologist “with regard to her persistent reluctance to support X’s relationship with his father”.[12] Sadly for X, there is no evidence before me to suggest that his mother has made any progress in this respect.
[12] Belko & Rushworth [2019] FCCA 3112 at [60(e)].
X’s own account to both family consultants in this current proceeding underlines the extent to which he has been affected by the mother’s rejection of the father. To Ms Y, X said that he refers to the father as “Mr Belko’, adding “I don’t want him to be my dad, maybe I called him dad once but not now, he doesn’t act like a dad, I don’t like him, he is trying to keep me away from my mum”. Ms Y notes that X “impresses as particularly aware and sensitive to maternal views about [the father]”.
Ms Z notes that when she saw X and the mother together, the mother referred at one point to the father as “dad” and X asked “who” as though he did not know to whom she was referring. In cross-examination, the mother explained this by saying that she referred to her own father as “dad” and usually called the father “Mr Belko” in when speaking to X. These observations from both family consultants align with my assessment of the mother as struggling to accept that X is entitled to see the father as a parent.

The mother now deposes that “the time that X has spent with Mr Belko since 6 November 2021 has been crucial in rebuilding the father-son relationship”. She does not explain why she considers this to be the case. If her allegations and concerns about the father’s care of X are accurate, then X’s experience of being in his father’s sole care would presumably have resulted in distress and discomfort at best and, at worst, fear and trauma. If the mother considers that the period in the father’s care has instead rebuilt the relationship between X and the father, she should recognise the need to reconsider whether there is any basis to her belief that the father presents a risk to X.
The mother deposes further:
I am concerned that if [X] continues to live with [Mr Belko], apart from it having a severe impact on [X] [sic] wellbeing, there is a strong probability that it may result in the father-son relationship eroding. I say that it is essential to preserve the father-son relationship that has developed and allow it to further develop in an environment where [X] is comfortable, happy, and aware that his opinions are being considered.
(Errors in original)
That submission is wholly inconsistent with my findings, and those of Judge McNab and Judge Carter, about the mother’s current and historical inability to support X’s relationship with the father, and with her contention that X’s time in the father’s care has “rebuilt” the relationship. The mother offers no explanation for the reasons for which she believes that the period which X has spent with the father since 6 November 2021 has restored their relationship but a further period in his care would erode it.
There is no evidence before me to suggest that during her supervised time with X the mother acted deliberately to undermine X’s relationship with the father. It is however incontrovertible that X told Dr O on a number of occasions that he was wholly content in his father’s care. After resuming time with the mother, X had nothing but complaints about the father. I accept the evidence of Dr O that the resumption of X’s time with the mother was what caused X to express wholly negative views about his father.
It is not my view that the mother’s conduct is deliberate or malicious. The mother’s evidence suggests that she has no insight into the manner in which her own views and feelings affect her son. In this regard, I accept the submission made by father’s Counsel in his closing address that I do not need to identify with precision the mechanism by which the mother’s views have tainted X’s in order to be satisfied as to its existence and its effect.
I am satisfied that the mother’s behaviour has caused emotional harm to X because X’s alignment with her leads him to reject his father. I am satisfied that the mother’s behaviour has sufficient influence upon X for him to have adopted her view that the father is a dangerous and abusive person. I am satisfied that this behaviour by the mother, if allowed to continue, presents an unacceptable risk of harm to X.
The evidence before me does not support the conclusion that if X returns to his mother’s care, he would be more able to spend time with the father than when he last lived with her. The mother offers only a bare assertion in that regard in her affidavit which she repeated in her viva voce evidence. She says that she has done her best to facilitate that relationship but has been unable to do so. Her views of the father have not changed as a result of the time which X has spent living with him. It is therefore overwhelmingly likely that X will respond to those views as he has in the past, by rejecting his father. Regrettably, I cannot therefore be satisfied that there is any prospect of X having a meaningful relationship with his father if he lives primarily with his mother.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
Ms Z interviewed X on 13 July 2022. She notes that he presented as “very familiar with the interview process” and that he “confidently explained how he thought it would be more beneficial if he could sit with the Judge and convey his wishes”.
X told Ms Z that he had not seen his father for a year before the change of residence but was unsure as to the reason. I would expect a child of his age to have some recollection of his own resistance to spending time with the father, particularly if the fear and distress which the mother says he expressed at the prospect of seeing the father was based in his own emotions rather than a response to his mother’s views. X’s inability or unwillingness to tell Ms Z the reason for the hiatus in time suggests that whatever he felt at the time was less straightforward than fear of an abusive parent. X referred to the incident when the father allegedly threw a remote control and relevantly went on to say that “everything, his mother has told the court about the bad things his father has done, are true.”
He complained that his wishes had not been considered previously and that was unfair. He also found it unfair that he was only seeing his mother for two hours per fortnight. He made it clear that he wanted to live with his mother and said that he felt more “comfortable and healthy” with her.
X told Ms Z that he was worried that his father would “yell at him or hurt him”. The report does not explore the basis for this concern. Of the specific complaints that X made about his father’s care (for example that his father fed him takeaway and tinned food, and sometimes took away his mobile phone), the only allegation of abusive behaviour was that his father had thrown the remote control at him, which X said had hit the headset he was wearing at the time. My findings in relation to that incident are discussed elsewhere in these reasons.
Another of X’s complaints is that his father kept things from him and had, for example, changed the subject when X entered the room whilst the father was talking to the paternal grandmother. X told Ms Z that he wanted his father to be “honest” and that it was better “for kids to know what adults are talking about”. He also describes being aware of his mother listening to the hearing on 29 October 2021 and then hearing the mother crying when she learnt of the Court’s decision. Ms Z does not comment on this account from X. In my assessment, it suggests that he is not only accustomed but feels entitled to be included in adult discussions. X’s account suggests that the father has been careful to prevent him from exposure to adult conversations in a way that is both appropriate and a new experience for him.
X’s exposure to the dispute between his parents, and his awareness of the mother’s views of the father are in my assessment the most likely explanation for the dissonance between the fear of the father expressed by X and the mostly trivial issues about which X complains. I take into account also the fact that X describes his experience of his father in wholly negative terms and his mother in wholly positive terms. In spite of these descriptions, he told Ms Z that he wants to see both parents.
I am required by s.60CC(3)(a) of the Act to consider not only the child’s wishes but what weight, according to the evidence, I should give to those wishes. The reports of Dr O provide an important historical context to X’s current wishes. In summary, they show that X was hostile and resistant towards the father from the start of therapy in May 2021 until just before he was moved to the father’s care. He then appeared to settle rapidly and happily in the father’s care. His only complaint until June 2022 was that he missed his mother. From June 2022 onwards he expressed an increasingly fervent wish to return to her care.
I am not persuaded by Ms Z’s explanation that X was happy to be with his father on a temporary basis but became unhappy as the months went by and there was no date for his return to his mother. He is an articulate young person who in my assessment would have been able express that view if it was what he felt. I am more persuaded by the view of Dr O, who notes X’s ongoing ambivalence towards the father and the pattern of alignment with his mother.
In R & R: Children’s Wishes, an appellant argued that the primary judge was required to find that the wishes of the children were unsound, founded on improper considerations, or the subject of influence by others, in order to reject those wishes when making parenting orders. The Full Court opined that:
…while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.[13]
[13] R and R: Children’s wishes [2000] FamCA 43 at [54].
In synthesising the evidence which is before me, I am satisfied that X’s expressed wishes are significantly influenced by his exposure to his mother’s negative views about his father. As a result, I am not satisfied that any significant weight should be placed on his expressed wish to return to the care of his mother.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
I have discussed in these reasons a number of professional observations of X’s relationship with his mother, primarily those of Dr O. The observations of the contact supervisors provide additional information in that regard. It is clear from that evidence that X has a close and loving relationship with his mother which provides both of them with significant comfort. I have found also that within that relationship, X has been exposed to his mother’s disproportionate fear of the father and that he has become so aligned with her feelings that he has rejected his father as a result. I have discussed my findings as to the emotional harm which she has inflicted upon X in this regard, not only by preventing him from having a relationship with his father but by transmitting to him her view that the father is abusive and uncaring.
I have also considered the professional observations of the relationship between X and his father. As indicated in these reasons, I place greater weight on the observations of Dr O, who was able to note the changes in their relationship over the last year, and on the observations of Ms Y, than on the single observation of Ms Z. I accept the evidence of Ms Z that there is a closer emotional bond between X and the mother than X and the father, but her assessment that X lacks trust in the father is inconsistent with the observations of Dr O, whose evidence I prefer.
Whilst in the father’s care, X has also spent time with his maternal aunt, the mother’s older daughter and maternal cousins. It is to the father’s credit that he has facilitated this time and has communicated directly with those maternal relatives.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
The mother has complained to numerous professionals including Ms Z that the father did not attempt to see X until he was four years old. That complaint forms part of her narrative that the father was not interested in a relationship with X during his early years. It is also inaccurate. X was not yet three when the father first met him, and he was able to do so only pursuant to interim orders of this court made in the face of opposition by the mother.
There is limited evidence of the mother offering the father any opportunity to take part in long term decision making in relation to X save through the proceedings in this Court.
The father has shown significant commitment to pursuing his relationship with X during the long history of proceedings.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
Neither party alleges that the other has failed to fulfil their obligations to maintain X.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
X is currently living with his father and attending Suburb Q Primary School. My orders will leave those arrangements in place. The primary change for X will be upon learning that he will not return to his mother’s care. The orders will also result in a significant reduction in the time that X spends with his mother.
This will inevitably cause him distress, as well as frustration that my decision is not consistent with his expressed wishes. I anticipate that he will experience a sense of grief and loss. There is a risk that his anxiety may increase. The father confirmed in his evidence, and through his Counsel’s closing submissions, that he would obtain psychological support for X. I have made an order for him to do so forthwith. That support will mitigate the distress that X will feel.
Both of the parties’ proposals present a degree of risk in relation to X’s wellbeing. Sadly the task for the Court in this case is to identify the outcome which minimises that risk, rather than provides an optimal outcome. In my assessment, the long term benefit of living with his father and maintaining a relationship with both parents will outweigh the distress that he will feel in the short and perhaps the medium term.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The mother lives in Town E and the father lives in Suburb Q. The distance between the parties’ homes means that whether X lives with his father or his mother, his time with the other parent is effectively limited to weekends and school holidays. The father told Ms Z during his interview with her that he was uncertain whether he could afford to travel to Town E once per fortnight to see X. During his viva voce evidence, he confirmed that he would be able to do so.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
I have already referred to the occasions on which the mother has embroiled X in her dispute with the father and has become unregulated in his presence. On those occasions, she has been unable to prioritise X’s emotional wellbeing over her own. She says that she recognises the benefit to X of a relationship with the father but has been unable or unwilling to ensure that X receives this benefit. Indeed, she has in my assessment burdened X with her need for him to align himself with her perception of the father as unsafe and abusive.
I conclude that whilst the mother has been able to meet X’s other needs, she has been unable to meet his emotional needs, and in particular, his need for a relationship with his other parent.
The father said in his viva voce evidence that in November 2021 he had contacted Suburb Q Child Psychology Services to obtain counselling for X but was told that they had a long waiting list. He then arranged for X to obtain counselling from a psychologist, Mr AC. The father has responded appropriately to occasions when X has experienced anxiety. He discussed X’s episode of anxiety on 31 May 2022 with X’s teacher and arranged, via the school, for X to see the school chaplain. The father confirmed that he had told the chaplain about X’s circumstances and that he is missing his mother. He confirmed also that X is on the waiting list for Suburb Q Child Psychology.
The father also gave unchallenged evidence that he has completed a Parenting Order Program, a “Talking Tweens” program, a Tuning into Kids Program and two other parenting programs specifically for fathers provided by AD Centre. When asked what he had learnt from those courses about identifying X’s needs, he referred to the need to listen to X, and to try to understand what emotions he might be feeling.
The father gave viva voce evidence about the conversations that he has had with X about X’s wish to return to his mother’s care. He said that they both cried and he hugged X and reassured him that he would see him regularly if he returned to his mother. He also gave evidence about conversations he had had with X about the onset of puberty and the physical changes which it would bring. He did not impress as someone who is naturally comfortable or articulate when discussing sensitive and emotional topics but his desire to do his best for X and his sincerity were palpable. I am satisfied that he is sufficiently attuned to X’s emotions to recognise when he needs to provide comfort and support to X, and when professional help is required.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have discussed X’s maturity in the context of his expressed wishes.
If the children are Aboriginal or Torres Strait Islander children
X is not an Aboriginal or Torres Strait Islander child.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
The mother is a caring and responsive parent save for her inability to support X’s relationship with the father.
The father has demonstrated commitment to taking on the primary care of X, and to supporting his relationship with the mother and maternal relatives.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
The mother’s allegations of family violence have been discussed in these reasons.
The intervention order currently in force was granted on 3 June 2021 in the Town E Magistrates’ Court and, subject to the outcome of the father’s appeal, will remain in force for five years. In the light of my findings as to family violence, no inferences can be drawn from the existence of that or any of the previous intervention orders.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
In addition to her allegations about the father’s interactions with her and X, the mother complains that the father has used the Court proceedings to bully and control her. I infer from that complaint that she wishes the proceedings to conclude. Her conduct has however extended the duration of these proceedings as she has consistently failed to comply with the orders of this Court relating to X’s time with his father.
The Act requires consideration of the impact of proceedings on children.[14] X has been interviewed by a number of professionals in the context of the parental dispute, including police officers and family consultants. Those interviews will in my view have increased his awareness of his central role in the dispute. It is important that these proceedings come to an end and that X and his parents are able to achieve some finality and stability.
[14] Family Law Act 1975 (Cth), s 69ZN.
In my assessment, orders providing for X to live with the mother and spend alternate weekends with the father would result in X refusing to spend time with the father. That would in turn lead to further contravention applications by the father. Alternatively, the mother might seek to vary the orders on the basis of X’s unwillingness to spend the time ordered.

An alternative possibility would be to order that X remain with the father but spend unsupervised time with the mother on alternate weekends and during half of his school holidays. In my assessment and for the reasons which I discuss, those orders would place X in an unmanageable situation because extended periods of time with his mother would increase the pressure on him to refuse to return to his father or to reject the father in other ways. Either possibility would lead to further litigation.
Although my orders will inevitably cause distress to X, he has settled quickly and easily into his father’s care before and it is possible if not probable that he will do so again. I am satisfied that the orders that I make are less likely to lead to further litigation than the orders for which the mother contends.
parental responsibility
Section 61DA of the Act provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.
In this matter, neither party contends for equal shared parental responsibility. For the reasons already discussed, the order sought by the independent children’s lawyer and described as equal shared parental responsibility amounts in my view to sole parental responsibility.
There is no evidence before me of any recent successful communication or cooperation between the parents. The reportable family therapy conducted by Dr O did not achieve any meeting of minds between the parents. The extensive litigation history between the parties demonstrates both intractable and enduring conflict between them. I am not satisfied that the parents are capable of complying with the legal obligations consequential to the making of an order for equal shared parental responsibility.[15]
[15] Manifold & Alderton [2021] FamCAFC 61 per Austin J at [109]
Consistent with the parties’ positions, I find that it is not in X’s best interests for his parents to have equal shared parental responsibility. The presumption to the contrary is rebutted. I am therefore not required to consider whether X spending equal time or substantial and significant time with each of his parents is in his best interests and reasonably practicable.
Given the binary outcome now proposed to be in X’s best interests, I am satisfied that parental responsibility should be determined according to his living arrangements. Whilst it is a very significant step to deprive parents of parental responsibility with which they are invested by law,[16] I consider that in the circumstances of the entrenched dispute between X’s parents, his primary carer should be able to make decisions for him, such as whether X is required to provide to his primary carer the passcode for his phone, without obstruction from the other parent.
[16] Lennon & Lennon [2011] FamCA 571 at [108].
Orders to be made
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[17]
[17] Grella & Jamieson [2017] FamCAFC 21 at [18].
I find on the basis of the evidence analysed in these reasons that there is no realistic prospect of X being able to spend substantial and significant time with both of his parents, whether he lives with his mother or his father.
If he returns to the care of his mother, the evidence before me leads to the ineluctable conclusion that he will again succumb to the pressure emanating from her and will refuse to spend time or communicate with the father.
That conclusion presents the Court with two stark alternatives. Both involve a degree of risk for X.
Either X is returned to the care of his mother, in line with his expressed wishes, to resume his alignment with her. He will then receive the immediate comfort and solace which Ms Z opines (and I accept) would alleviate his current anxiety. He will also grow up either genuinely believing, as does his mother, that his father is an abusive, uncaring and even dangerous person, or giving voice to those beliefs even if he does not share them. The latter is in my assessment no less damaging for this child. I consider this outcome, and the likely loss of his relationship with his father, to be inconsistent with X’s best interests.
Alternatively, X remains in the care of his father. His father will in my assessment provide him with stable and loving care. Crucially, he has a rational perspective in relation to the mother. There is no evidence of him holding bitterness, anger or hatred towards her. He will in my assessment give X permission to express his love for his mother and will not require X, as the mother does, to choose between his parents. He will in my assessment support X in spending time with the mother to the extent that it is safe for him to do so.
The question then arises as to what arrangements would allow X to spend time with his mother without exposing him to further emotional harm.
The appropriate approach to situations involving allegedly unacceptable risk to a child has been considered recently and in detail by the Full Court in the case of Isles & Nelissen.[18] In that matter, their Honours clarified both the distinction between fact finding and risk assessment in such cases, and also the standard by which any finding of unacceptable risk is to be made.
[18] Isles and Nelissen [2022] FedCFamC1A 97.
Their Honours opined that because courts can and do consider risks which may be mere possibilities:
…it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.[19]
[19] Isles and Nelissen [2022] FedCFamC1A 97 at [7].
Their Honours rejected the line of authorities[20] which suggested that an unacceptable risk of harm needs to be established according to the standard of proof found in s.140(1) of the Evidence Act 1995. Their Honours reasoned:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.[21]
[20] Including Potter and Potter [2007] FamCA 350 and Johnson and Page [2007] FamCA 1235.
[21] Isles and Nelissen [2022] FedCFamC1A 97 at [85] and [86].
As already discussed in these reasons, I am satisfied that Dr O is correct to attribute X’s expressed discontent with the father to his reconnection with his mother from May 2022 onwards. Although the current arrangements for time have revived that discontent, the short duration of time and presence of the supervisor have ensured that X has returned to the care of his father at the end of each session.
The mother seeks orders for X to spend time with her on alternate weekends and during half of the school holidays. The mother does not accept or understand how her views about the father influence X’s feelings. If X spends unsupervised time with the mother, the evidence before me indicates that her influence is likely to be at least as pervasive and damaging as it has been since May of this year, and in all likelihood more so. X will then continue to face the conflict of loyalties which in my assessment is causing him so much anxiety and distress at present. Because the mother sees nothing inappropriate in taking X to the police station if he makes allegations about the father assaulting him, it is likely that she would continue to do so without stopping to consider the veracity of those allegations or the impact on X. There is also in my view a significant risk that X will refuse to return to the father’s care after a weekend or holiday period spent with the mother, as he refused to attend time with the father when living with the mother.
Ms Z opined that supervised time between X and the mother would be appropriate if the court accepted the father’s allegation that the mother had undermined his relationship with X. As is clear from these reasons I do find that allegation made out to the requisite standard. I accept the submission of the father that limited supervised time with the mother is in X’s best interests. Although none of the parties addressed me as to the implications of making final orders for supervised time, I have regard to the numerous authorities which suggest that such orders are generally undesirable and alternative orders should be crafted where possible.[22] In this case I consider that it is both in X’s best interests and the only appropriate response to the risk which I have identified to make such an order.
[22] Bant & Clayton [2019] FamCAFC 198 at [53] and the cases there cited.
Ms Z made no recommendations as to the frequency of supervised time. She was not cross-examined about this issue. Dr O was not asked about her views in relation to spend time arrangements if X remained with the father. I was not assisted by the submissions of Counsel for the independent children’s lawyer, which were to the effect that she would ‘not quibble” with supervised time but did not offer any assistance with regard to the frequency of such time.
As a result there is a dearth of evidence before me as to how often time should take place so as to balance X’s need to spend time with his mother with the risks that arise from that relationship. As discussed, the fortnightly supervised time which has taken place since May 2022 has negatively impacted X’s relationship with the father. The father proposes that supervised time take place once per month. Doing the best I can with the limited evidence before me in this regard, I accept that submission. I consider that that frequency will allow X to receive the affection and solace which the mother offers without significantly jeopardising his relationship with his father.
I am confident that X’s bond with his mother is strong enough to be maintained during the limited periods of time which I order. It will doubtless be distressing and difficult for X to understand why he sees his mother so infrequently. I am satisfied that the long term benefit for X of these orders will outweigh the distress that he will experience. His father has confirmed and I have ordered that he will receive psychological support which will be crucial in helping him come to terms with the reasons for which he is not returning to the care of his mother.
The orders for supervised time will remain in place until X turns 18 unless the parents agree otherwise. At the start of the trial the father sought orders for X’s time with the mother to be supervised for 12 months followed by a review hearing. The father said in evidence that he wanted the mother to stop what he called “negative coaxing” of X so that time did not need to be supervised. He altered that proposal by the end of the trial, and I would not in any event have countenanced the continuation of these proceedings, but the nature of the proposal and the father’s evidence satisfy me that if the mother is able to support rather than undermine that placement, the father will be willing to remove the requirement for supervision and will agree to longer periods of time.
The costs of supervision are to be shared equally between the parents. Both parents are of modest means. X needs to spend time with his mother and that time needs to be supervised for the reasons set out in this judgment. In my assessment it is appropriate for the parents to share the financial burden that arises from meeting that need. That order will also ensure that the father has an incentive to consent to the removal of the requirement for supervision if and when it is safe to do so.
The mother seeks orders for the father and X to undertake family therapy with Ms U. I draw two inferences from this proposal. Firstly, the mother rejects the prospect of further work with Dr O and wants a new family therapist because of her concern, expressed in her affidavit, that Dr O “is severely downplaying and/or disregarding the concerns that X has been expressing to her about his relationship with [the father]”. Secondly, it indicates the extent to which the mother considers that the problem lies only in X’s relationship with the father, and that her relationship with X needs no support. In any event, I accept the evidence of Dr O and of Ms Z that what X needs most at present is individual therapy and that is what I have ordered to take place.
The mother initially sought personal protection orders with immediate effect. At the conclusion of the trial it was conceded by her Counsel that, as a result of her pre-existing application to the State courts, she is prevented by s.114AB(2) of the Act from obtaining injunctive orders for personal protection in this Court.
The father, supported by the independent children’s lawyer, sought orders providing that upon the expiry of the current orders made pursuant to the Family Violence Protection Act 2008 (Victoria), each party be restrained from committing family violence against each other and in particular from approaching within 200 metres of the other’s person, residence or workplace save as necessary to carry into effect the orders of the Court. The father did not propose a finite period for those orders which would then endure until X turns 18. No evidence was adduced from the father in support of those orders and in fact the father’s evidence indicated that he had been constrained on a number of occasions from contacting the mother, or approaching her car at changeover to persuade X to attend, because he was worried that she would accuse him of breaching the intervention order then in force. On the basis of that evidence, I cannot be satisfied such orders would promote the best interests of X.
The father also seeks orders permitting the parties to disclose relevant court documents to any health professionals working with X and any dispute resolution practitioner working with the parents. I will also make orders permitting the parties to disclose the same court documents to any psychologist or counsellor treating either party. The father also proposes that the parties have permission to disclose within the intervention order proceedings the previous orders of this Court, these reasons and my orders, and the reasons for judgment of Judge McNab and Judge Carter (but not the family reports which the parties accept do not need to be disclosed into other proceedings). The independent children’s lawyer supports the making of those orders and the mother indicated her consent through her Counsel. The orders sought are appropriate and accordingly I will make them.
The father sought orders requiring the parties to communicate by email. The mother proposes that they communicate via the “Our Family Wizard” app. No party adduced any evidence in respect of these competing proposals. Doing the best I can with the limited information available to me, I will order the parties to communicate via such parenting app as they may select by agreement and in default of agreement by email.
The orders proposed by all parties for non-denigration are appropriate and I make orders in those terms.
No evidence was adduced before me in relation to the father’s application for the change of X’s surname and that application was not pressed. I make no order in that regard.
Pursuant to the orders which I made at the conclusion of the trial, X is to be delivered to the Court’s Children’s Services so that a Senior Court Child Expert can explain to him the orders that I have made and so much of my reasons as the relevant Senior Court Child Expert considers appropriate.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and fifty-four (254) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt.
Associate:
Dated: 28 November 2022

File number(s):	MLC 6272 of 2013
Judgment of:	JUDGE BURT
Date of judgment:	28 November 2022
Catchwords:	FAMILY LAW – PARENTING – RESIDENCE – Best interests – history of contravention by the mother of orders for the child to spend time and communicate with the father – child placed with father pursuant to interim orders – child spending no time with the mother for six months following the interim change of residence – mother spending supervised time only with child for the next six months – the child and the father engaging in regular family therapy – child reporting to family therapist that he was content in his father’s care, during the period for which he was spending no time with the mother – child expressing wholly negative views of the father following the commencement of supervised time with the mother – mother’s view of risk arising from father – where the child has been exposed to the mother’s views – where the child is aligned with the mother – where the child’s best interests require that he live with father and spend supervised time with the mother three hours per month on a final basis – the father to have sole parental responsibility.
Legislation:	Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65D, 69ZN, 114AB(2)
Cases cited:	Andrew & Delaine [2009] FamCAFC 182 Bant & Clayton [2019] FamCAFC 198 Ditcher & Fetzer [2014] FamCA 175 Grella & Jamieson [2017] FamCAFC 21 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713; [1979] FamCA 73 Isles and Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 Belko & Rushworth [2019] FCCA 685 Belko & Rushworth [2019] FCCA 3112 Lennon & Lennon [2011] FamCA 571 Loddington & Derringford (No 2) [2008] FamCA 925 Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21 Manifold & Alderton [2021] FamCAFC 61 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 Pavli & Beffa (2013) 48 Fam LR 677; [2013] FamCA 144 R and R: Children’s wishes (2000) 155 FLR 29; (200) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43
Division:	Division 2 Family Law
Number of paragraphs:	254
Date of hearing:	12, 13 and 14 October 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Thistleton
Solicitor for the Applicant:	Peter Lynch
Counsel for the Respondent:	Mr Oldham
Solicitor for the Respondent:	Vernon Da Gama and Associates
Counsel for the Independent Children's Lawyer:	Ms Wiener
Solicitor for the Independent Children's Lawyer:	Perry Weston Lawyers

MLC 6272 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BELKO Applicant
AND:	MS RUSHWORTH Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE BURT
DATE OF ORDER:	28 November 2022