Clemmen & Verley
[2025] FedCFamC1F 69
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clemmen & Verley [2025] FedCFamC1F 69
File number(s): MLC 12464 of 2023 Judgment of: CARTER J Date of judgment: 11 February 2025 Catchwords: FAMILY LAW – PARENTING – Where the mother alleges the child is exhibiting sexualised behaviours – Where the mother concedes the father does not pose an unacceptable risk to the child – How major long-term issues should be determined for the child – Time the child should spend with the father – Consideration of the best interests of the child. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60
Cases cited: Oberlin & Infeld (2021) 63 Fam LR 88 Division: Division 1 First Instance Number of paragraphs: 121 Date of last submission/s: 30 January 2025 Date of hearing: 13 January 2025 Place: Melbourne Counsel for the Applicant: Mr Potter Solicitor for the Applicant: Taylor Rose Counsel for the Respondent: Ms Taylor Solicitor for the Respondent: Coulter Legal Counsel for the Independent Children's Lawyer: Mr Dean Solicitor for the Independent Children's Lawyer: Buscombe Family Law ORDERS
MLC 12464 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CLEMMEN
Applicant
AND: MS VERLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CARTER J
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The parents make joint decisions in relation to major long-term issues in relation to the child X born 2018 (“the child”).
2.The child live with the mother.
3.The child spend time with the father during school terms as follows:
(a)commencing on the first alternate weekend after the making of these orders, from 10.00 am Saturday until 3.00 pm Sunday with such time to occur in the City C region; and
(b)after time has occurred in accordance with Order 3(a) herein on three occasions, thereafter the child shall spend each alternate weekend with the father from the conclusion of school Friday (or from 3.15 pm if a non-school day) until 3.00 pm Sunday.
4.In the event the father has relocated to the Town B area, the child spend time with the father during school terms as follows:
(a)commencing no earlier than the start of Term 2, 2025 and only after time pursuant to Order 3(b) has occurred on not less than three occasions;
(i)from the conclusion of school Friday (or 3.15 pm if a non-school day) to 5.00 pm Sunday each alternate weekend; and
(ii)from the conclusion of school (or 3.15 pm if a non-school day) to 7.00 pm each alternate Thursday.
(b)commencing at the start of Term 3, 2025:
(i)from the conclusion of school Friday (or 3.15 pm if a non-school day) to the commencement of school Monday (or 9.00 am if a non-school day) each alternate weekend; and
(ii)from the conclusion of school (or 3.15 pm if a non-school day) to 7.00 pm each alternate Thursday.
(c)commencing at the start of Term 4, 2025:
(i)from the conclusion of school Friday (or 3.15 pm if a non-school day) to the commencement of school Monday (or 9.00 am if a non-school day) each alternate weekend; and
(ii)from the conclusion of school (or 3.15 pm if a non-school day) each alternate Thursday to the commencement of school Friday (or 9.00 am if a non-school day).
(d)commencing at the start of Term 1, 2026:
(i)from the conclusion of school Thursday (or 3.15 pm if a non-school day) to the commencement of school Monday (or 9.00 am if a non-school day) each alternate weekend; and
(ii)from the conclusion of school (or 3.15 pm if a non-school day) each alternate Thursday to the commencement of school Friday (or 9.00 am if a non-school day).
School holidays
5.The child spend time with the father during Victorian school term holidays as follows:
(a)In the Term 1 holidays in April 2025, time shall occur for two nights, on two occasions, on days as agreed, from 3.00 pm on the first day until 3.00 pm two nights later;
(b)In the Term 2 (June/July) holidays in 2025 for a period of four consecutive nights as agreed and failing agreement, from the conclusion of school on the last Friday of term until 5.00 pm Tuesday of the first week;
(c)In the Term 3 (September/October) holidays in 2025 for a period of five consecutive nights as agreed and failing agreement, from the conclusion of school on the last Friday of term until 5.00 pm Wednesday of the first week;
(d)commencing in the Term 4 summer holidays in 2025/2026 and thereafter, for half of the long summer school holidays by agreement and failing agreement, on a week about basis with the child to be with the father for weeks two, four and six in 2025/2026 and each alternate year thereafter and in 2026/2027 for weeks one, three and five and each alternate year thereafter; and
(e)commencing in the Term 1 school term holidays in 2026 and thereafter, for half of the school term holidays by agreement and failing agreement, the first half from the conclusion of school until 5.00 pm on the middle Saturday.
Special occasions
6.Notwithstanding any other order, for the purposes of special occasions, the child shall spend time with each parent at times agreed and failing agreement as follows:
(a)with his father from 5.00 pm Fathers’ Day eve until the commencement of school Monday;
(b)with his mother from 5.00 pm Mothers’ Day eve until the commencement of school Monday;
(c)with his father on the father’s birthday if that falls on a non-school day, from 9.00 am until 5.00 pm;
(d)with his mother on the mother’s birthday, if that falls on a non-school day, from 9.00 am until 5.00 pm;
(e)on the child’s birthday if a non-school day:
(i)with the father from 9.30 am until 2.30 pm and with the mother from 2.30 pm until 7.30 pm otherwise in odd numbered years; and
(ii)with the mother from 9.30 am until 2.30 pm and with the father from 2.30 pm until 7.30 pm in even numbered years.
(f)with the mother from 9.00 am on Good Friday until 5.00 pm on Easter Monday;
(g)with the mother from 9.00 am on Christmas Eve until 5.00 pm on Boxing Day; and
(h)with the father:
(i)commencing in 2026, for a religious holiday for five nights, commencing at 5.00 pm on day one and concluding at 10.00 am day five;
(ii)on another religious holiday for one day;
(iii)on the religious new year for two days and two nights;
(iv)on a religious holiday for one day;
(v)for the first two nights of a religious celebration; and
(vi)on another religious celebration for eight days and eight nights.
7.The child spend such other time with the father during school terms, school holidays and for special occasions as is otherwise agreed.
Changeover
8.For time pursuant to Order 3(a) the parties shall effect changeover at the City C Shell petrol station unless otherwise agreed.
9.For time pursuant to Order 3(b) if the father has not yet relocated to the Town B area, unless otherwise agreed:
(a)the father shall collect the child from school (or if a non-school day from the BP service station Town B) at the commencement of time; and
(b)the mother shall collect the child from the father at the Suburb D McDonalds at the conclusion of time.
10.For all other occasions of time all changeovers shall be at the child’s school on school days, and otherwise at the BP service station Town B, unless otherwise agreed.
Communication
11.The child communicate by video call with the parent who does not have him in his or her care at times agreed and failing agreement:
(a)each Tuesday between 5.00 pm and 5.30 pm; and
(b)on the child’s birthday between 5.00 pm and 5.30 pm if it falls on a school day.
12.The parties communicate via AppClose or such other parenting application as agreed between the parties in writing, save for in an emergency in which case the parties may communicate via telephone and/or text message.
Provision of information
13.The parties keep each other informed of their residential address, mobile telephone number, landline telephone number (if applicable), and email address, and advise the other party within 48 hours of any change thereto.
14.The parties keep each other informed as soon as practicable of:
(a)any significant injury, illness, or medical condition suffered by the child or any treatment undergone by him whilst he is in their respective care;
(b)any significant medical or dental treatment provided to the child;
(c)any medication the child is to take whilst the child is in the other’s care including the dosage, and such medication to be provided to the other parent at changeover;
and each party is at liberty to liaise with the child’s medical treater and hospital to provide relevant information about the child in relation to diagnosis, prognosis, and or treatment.
15.The parents are at liberty to provide copies of the following documents to any mental health professional upon whom they attend:
(a)the affidavit of Dr E filed 23 February 2024;
(b)the affidavit of Mr F, filed 3 January 2025 containing the contact centre reports; and
(c)the reports prepared by Dr G dated:
(i)1 March 2024;
(ii)4 April 2024;
(iii)20 June 2024;
(iv)17 August 2024; and
(v)14 January 2025.
School and activities
16.Each parent is at liberty:
(a)to attend school events and extracurricular activities normally attended by parents including but not limited to assemblies, award days, parent/teacher interviews, sports days and school concerts; and
(b)to obtain copies of all documents relating to the child, inclusive of file notes, activities, notices, letters, reports and photographs at their own cost direct from the child’s school.
17.Each parent is to be listed as enrolling parents and emergency contacts at the child’s educational providers and or extra-curricular activity organisations.
18.The parents are at liberty to provide a copy of these orders to the child’s school.
Restraint
19.Both the mother and father be restrained from:
(a)discussing these proceedings with or in the presence or hearing of the child or allowing another person to do so; and
(b)denigrating the other parent or members of the other parent’s family or household to or in the presence or hearing of the child or allowing another person to do so.
Miscellaneous
20.The appointment of the Independent Children's Lawyer be discharged
21.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
ISSUES TO BE DETERMINED
When these parenting proceedings commenced in late 2023, it was the mother’s case that the father presented an unacceptable risk of harm to the parties’ one child, X born 2018. Since that time investigations have been conducted by the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) and the Department of Families, Fairness and Housing (“DFFH”). DFFH concluded their involvement with the family in late 2023, finding that there was insufficient evidence to substantiate harm. SOCIT conducted interviews in early 2024 and ultimately determined not to take any action.
The nebulous concerns raised by the mother as to risk arose in part as a result of the mother’s interpretation of the father’s physical interactions with the children and in part as a result of behaviours exhibited by the child. These matters led to the mother and maternal grandmother suspecting that the child had been sexually abused by his father or was being groomed for sexual abuse by his father.
In relation to the child’s behaviours that caused the maternal family alarm, that included the child touching his own genitals, making references to his bottom and penis, rubbing his genitals on his father’s leg and having pulled down the father’s pants on one occasion.
In addition, the mother and maternal grandmother interpreted a series of three photos of the child taken by the father as being sinister and indicative of sexual abuse. They also asserted the father touched the child’s genitals inappropriately at times, including when changing the child’s nappy.
These events took place prior to separation – at which time the child was just five years old.
The child has never made any statement that could be properly described as a “disclosure” at any time either to his mother or grandmother. Nor has he made any disclosure during his interviews with SOCIT, with the DFFH or at any time during the period he attended upon a counsellor at H Centre. At its highest, the mother’s evidence is that the child has made ambiguous comments or acted in a manner that she has interpreted to be a reference to, or enactment of sexualised behaviour engaged in with his father.
The child’s paediatrician, Dr G provided an updated report dated 14 January 2025 during the running of the trial. In that report he opined there was nothing in the examples given by the mother to him of the child’s statements or behaviour that would point to the child having been abused by his father. Rather, many of the mother’s examples were – he felt – more appropriately characterised as “normal young child silliness”. In his oral evidence Dr G again referred to the behaviours as the sort of silly and excitable behaviours relatively common in young children. He said that further exploration into the child’s behaviours was not warranted.
Whilst the mother maintained in her evidence that she remained concerned as to the genesis of the child’s behaviours, her counsel confirmed at opening and again at closing of the mother’s case that this was not a matter in which her client asserted the father presented an unacceptable risk to the child. The mother’s proposed orders sought at the conclusion of the hearing provided for the child’s time with the father to move to being unsupervised, and that gradually and very slowly time would increase until he was spending four nights a fortnight with his father, together with an evening meal, five-night blocks of time during holidays and some time on special occasions. The mother also sought sole decision-making responsibility for the child’s major long-term issues.
The father’s case also substantially changed. At opening, he sought sole decision-making responsibility, a change of residence to him, a moratorium of time between the child and mother for four months, that the child change schools, and that the child spend supervised time with his mother until such time as the mother was psychologically assessed and had ‘successfully completed’ treatment or therapy from a psychologist.
During the running of the trial, a more child focussed proposal was put forward by the father. Pursuant to that proposal – as put to the Family Report writer – the child would remain living primarily with his mother, with his time with his father increasing over the course of this year to five nights a fortnight, and further increasing to six nights a fortnight with his father in 2026. This was on the basis that the father would move to the Town B area. The minute of orders sought by the father provided on the last day of hearing envisaged progressing to a week about arrangement. The father also proposed that the parents should have joint responsibility for making decisions about the child’s long-term issues.
Ultimately, the matters that remain for me to determine are:
(a)allocation of parental responsibility;
(b)the time the child is to spend with the father during term times both now and upon the father relocating to the Town B area;
(c)the time the child is to spend with the father during school holidays; and
(d)that time the child shall spend with his parents for special occasions.
BACKGROUND
The parties were in a relationship from about 2012 and commenced living together in 2015.
The child’s birth was traumatic. He required resuscitation and was unconscious for several days. This has had an enduring impact on the parties.
The parties separated on 3 October 2023 when the mother vacated the former matrimonial home in Suburb J, taking the child with her, and relocating to live with her parents in Town K.
It is unfortunate that the mother formed the concerns that she did regarding the child and his relationship with his father. The result of the mother’s worry was that from the date of separation on 3 October 2023 until August 2024, the child had no contact at all with his father. That must have been extremely distressing and confusing for the child.
Supervised time commenced in August 2024 and has progressed extremely positively. The parties have now agreed to progress to unsupervised time. That will have occurred on several occasions prior to the delivery of these reasons.
THE EVIDENCE
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 that does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The mother, her mother and the father gave evidence, as did the Family Report writer and the child’s paediatrician.
The Family Report writer and Dr G were impressive witnesses, and their evidence was of great assistance to the Court.
Both of the parents were at times unnecessarily critical of the other parent.
The Mother
The mother is 46 years old. She is employed as a professional at an educational institution. She lives in Town K, with her parents and the child.
The mother’s evidence was difficult to understand at times. She remains ‘concerned’ about the father’s physical interactions with the child and about the child’s behaviours. In her mind, she cannot rule out that sexual abuse or grooming may have occurred. She repeatedly said she does not know what did or did not occur, but she simultaneously asserted she did not regard the father as posing an unacceptable risk to the child.
Whilst the mother advocated for a slow increase to the father’s time with the child – this was on the basis that the child needed to be able to adjust to the changes, rather than because she was fearful for the child’s safety in the father’s care.
It is regrettable that the mother’s abandonment of her narrative of unacceptable risk occurred so late in these proceedings. She appeared to struggle with the advice of DFFH, and the evidence of both the Family Report writer and the child’s paediatrician that it was most unlikely the child’s behaviours were indicative of any inappropriate or abusive conduct on the part of the father. Instead, they most likely reflected age-appropriate silly, attention seeking behaviours.
It is apparent that the mother – and the maternal grandmother – interpreted many of the child’s comments and behaviours, as well as actions by the father, as providing support for their misguided belief that the child had been sexually abused or was being groomed for such abuse. For instance, the mother surmised that the father was looking at pornography together with the child in bed on Sunday mornings when the marriage was still intact. She never actually saw pornography being played on a device. Nor did the child refer to anything he had seen that could be construed as being exposed to adult material. However, the mother formed an unshakeable suspicion that is what was going on. Similarly, the mother deposed that on 27 September 2023 she saw the father stroking the child’s leg in an inappropriate way. In her oral evidence she said it was inappropriate as it was being done in a “romantic” way, that she found to be “creepy”.
The mother – and her mother – also formed a view that the father took sexually explicit photographs of the child. This was in relation to a series of about three photographs the father took of the child’s naked backside in July 2023 (when the child was five years old) which he then sent to the mother by text message. The mother and maternal grandmother maintained the images were pornographic and shocking. I reject that there was anything inappropriate about the photographs. They were taken by the father and sent to the mother, with the father making a light-hearted joke about trying a “new technique” for changing the child’s nappy. The mother had mis-remembered the father’s accompanying text message as “trying a new position”, which the mother extrapolated referred to a new sexual position. The mother herself had previously taken a photograph of the child urinating on a plant. However, she did not regard that as being problematic.
The mother and her mother also apparently remain somewhat concerned regarding the way that the child sucked a banana. They both concluded he appeared to be “performing fellatio” on the banana and seemed unable to accept the child was just being silly and attention seeking.
Other examples raised by the mother that she said concerned her that the child was being abused or groomed for abuse included that he put socks in his mouth and tied wool around his neck and torso. The mother told the Family Report writer this was him enacting being gagged and participating in acts of bondage. The mother was also concerned about the child’s references to – and interest in – his bottom and genitals.
The maternal grandmother also maintained that on one occasion in September 2023 she witnessed the father “massaging” the child’s genitals whilst changing his nappy – which she said she watched “for more than several minutes”. It seems highly unlikely that the maternal grandmother would have idly stood by watching blatant sexual abuse for several minutes without intervening.
The mother said she had seen the father rub his foot on the child’s genitals (although that was recorded by the police at the time as a report that the father was observed “jiggling his foot near the subject's genitals under the guise of giving him a 'see-saw ride'”), and that the father had spent an unnecessarily long time cleaning the child’s genitals when changing his nappy. It is notable that the reports from SOCIT that were tendered do not include reports that the father masturbated the child or spent excessive time cleaning his genitals.
The mother and maternal grandmother maintained the child also rubbed his genitals and backside on their feet and/or legs. That also was not referred to in the SOCIT reports. The mother and maternal grandmother remained unable to accept either that any such behaviour was just part of an innocuous game of “see-saw” that they were misinterpreting, or that the child was trying to get them to play the “see-saw” game with them, or indeed any other innocent explanation.
There were many other similar allegations raised by the mother – for which there are innocuous explanations – but which the mother effectively ‘pieced together’ to form a picture for her that indicated the child was at risk.
I note that the Family Report writer expressed some concern in her oral evidence that the mother held strong views about what had occurred, and there was a risk the mother may continue to look for evidence that supports her erroneous beliefs. The mother’s anxiety and distrust, if not managed, could then impact on the child and his relationship with his father. The Family Report writer recommended that the mother attend upon an appropriately qualified psychologist well versed in child development to advise the mother how to manage her hypervigilance and deal with the child’s comments or behaviours.
As indicated, the mother’s proposals were to gradually increase the child’s time with the father. According to her, the rationale for the slow, graduated regime she envisaged was to enable the child to become accustomed to changes in his care arrangements, and that it would occur in new locations. She said the father also needed to become more ‘used to taking care’ of the child, learning for instance how to prepare food for him. She also asserted the father’s health was such that more than four nights a fortnight during school term and more than five nights during school holidays would not be manageable for the father.
The Father
The father is 47 years old. He works in a senior position at a government department. It was his evidence that he can work flexible hours and is never required to physically attend the office. That is, he can work entirely remotely, subject only to the department ensuring there are sufficient protections to ensure online security.
It is clear the father feels maligned by the mother. At the commencement of the trial the primary orders he sought seemed somewhat punitive. They required the child to change residence, change schools, not see his mother for an unspecified period, then spend supervised time with his mother and for the mother to undertake most of the driving. When pressed as to why he sought these orders the father said it was effectively what he had had to go through for 16 months. That is, there was a somewhat of a ‘tit for tat’ flavour to his proposals.
The father also initially sought sole decision-making responsibility, without the need for him to include the mother in his consideration.
Very much to his credit, the father was able to make significant concessions during the running of the case, ultimately proposing that the parents share decision making in relation to the child and proposing that he relocate closer to the child’s current school. By living closer to the child’s school that will ensure both parents are better able to participate more fully in their child’s life. It also allows the child to remain at his current school, rather than having to endure yet another significant set of changes.
The father suffers from a number of medical ailments and mental health issues. His mental health issues were described in Dr E’s risk assessment as follows:
[the father] presents with a complex mix of longstanding physical health problems that have significantly impacted his day-to-day functioning, his relationship with [the mother], and his mental health. [The father] also presents with a history of mental health difficulties, and he has been diagnosed by his treating clinicians as suffering from a Major Depressive Disorder and Generalised Anxiety Disorder, in addition to a past diagnosis of PTSD stemming from [the child’s] traumatic birth. During the current assessment, [the father] presented with symptoms consistent with the Diagnostic Statistical Manual-fifth edition-Text Revision (DSM-5-TR) diagnosis of a Major Depressive Disorder, in addition to anxiety symptoms associated with current stressors. Major contributing factors to his current mental health difficulties include chronic physical health conditions that have impeded his functioning, estrangement from his family of origin, a relationship breakdown and current separation from his son, as well as accusations made against him, and associated Family Law proceedings.
The father deposed that his physical health “has been poor for several years”. He informed the Family Report writer that he had various medical conditions. The report writer indicated the father’s general practitioner further described the father as suffering from sleep apnoea, lethargy, and “longstanding chronic […] pain secondary to [a] chronic [medical condition]” which the doctor regarded as being “pretty well controlled”.
The father referred to being on medication – but no medical evidence was adduced at trial as to the nature and extent of the father’s physical health issues, the medication he is prescribed nor whether this impacts on his ability to parent the child. The report writer referred to the father’s general practitioner having prescribed several medications including an antidepressant.
It was the father’s evidence that these ailments did not impact his ability to provide care for the child, but did not adduce any expert evidence in this regard. However, I note the mother’s own evidence does not suggest that these long-standing health issues impacted his ability to care for the child during the relationship, other than the father taking afternoon naps and not storing his medication out of the child’s reach.
It was the father’s evidence that he had been a deeply engaged and involved father during the parties’ relationship, and that he and the child shared a special bond.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) set out that when deciding whether to make a particular parenting order in relation to children, the best interests of the child must be my paramount consideration.
The objects of Pt VII of the Act inform how I must exercise my discretion. Those objects include ensuring that the best interests of children are met, including by ensuring their safety; see s 60B(a) of the Act. The legislation further provides that I must also give effect to the Convention on the Rights of the Child; see s 60B(b) of the Act.
THE GENERAL CONSIDERATIONS
There are a range of considerations set out in ss 60CC(2) and (2A) of the Act that I must take into account in determining what is in the child’s best interests.
Section 60CC(2) of the Act sets out a non-hierarchical list of considerations which I must take into account being:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
Subsection 60CC(2A) of the Act provides:
In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Promoting safety and consideration of family violence, abuse or neglect
I will consider ss 60CC(2)(a) and (2A) of the Act together.
As set out, the mother at trial did not assert the father presented an unacceptable risk of harm to the child. In her oral evidence, the mother agreed that the child felt safe with the father but shrugged her shoulders when it was put to her that the child was in fact safe with the father. When pressed, the mother said nothing concerning had occurred since time resumed between the child and father, but she maintained time had to progress cautiously so that the child could become “reacquainted” with his father. The supervision reports make it abundantly clear that the child is well acquainted with his father already.
I am satisfied that there are no safety issues for the child in the care of either parent. As set out, the allegations of abuse and/or grooming were not pressed, and at any event, could not have been made out had they been pressed at trial. I note further that Dr E conducted a risk assessment report dated 15 February 2024. She assessed the father as ‘low risk’. This was not challenged at trial. I am satisfied the mother’s suspicions and concerns are unfounded – and that the mother had misinterpreted the father’s interactions with the child and drawn unsustainable conclusions from the statements and behaviours of the child.
The mother raised other complaints about the father’s parenting. That included providing the child with junk food instead of healthy options, not storing the father’s medication out of reach of the child, and not ensuring the child was warm enough. I am not satisfied these are safety issues. Nor do I regard the father as having neglected the child, save to observe that it is, of course, important that medication is stored appropriately and out of a child’s reach.
The mother maintained the father had subjected her to family violence, denigration and coercive control during the relationship. This was denied by the father. These matters were not explored in much detail at trial – and not to the extent that any findings could be made. I accept that the parties argued, and this took place in front of the child.
There was an ex parte interim Intervention Order made in favour of the mother and child in late 2023. A final Intervention Order was made by consent without admissions in late 2023. That order lapses in late 2025. The father has not been charged with breaching that Intervention Order.
However, the mother asserts that the father did breach the order in late 2024. On that day, after the child had spent supervised time with the father, the parties separately left the contact centre. The father left after the mother, and then attended a petrol station to refuel. Unbeknownst to him, the mother did not drive straight home, but instead shopped at a pharmacy in City L for a period. She says this was to fill some prescriptions and purchase pharmaceutical items. This meant that when the parties were travelling along the same road towards their respective homes about 20 minutes later – instead of the mother being considerably further down the road than the father – the father found himself driving behind her on the road.
I accept the father’s evidence that this was the usual route he took to return home after the contact visits. The father said he tried to maintain an appropriate distance behind the mother when he realised he was driving behind her. It was agreed this was a single lane road, and it would not have been safe for the father to overtake. The mother then turned off at the Town B exit and the father continued on the road. The mother reported this to the police.
If the father is charged it will be a matter for the state court to determine whether the Intervention Order has been breached. However, I am satisfied that there was no intention by the father to breach the Intervention Order. He was not attempting to follow the mother home. He had no way of knowing she delayed her departure from City L following the supervised visit. The mother was never in any danger, and the mother herself contributed to the parties being physically close to each other on the road by substantially delaying her own departure for home, and then taking no action herself to avoid the situation, such as pulling over to let the father’s vehicle pass her.
This is not a matter in which the mother’s safety is compromised by the orders sought by any party. It is the mother’s own proposal that changeovers occur at a petrol station when not at the child’s school. There have been no incidents at any changeover to date that would suggest there is any risk of the child being exposed to family violence.
Views expressed by the child
Dr E prepared a Family Report dated 15 February 2024. For the purposes of that report she interviewed the child on 25 January 2024. At that time Dr E described him as “withdrawn” and that he “became increasingly distressed/frustrated as the session progressed”. He said he did not like his school.
When asked whether he missed his father he said he did, that he missed his old house and that he wanted to go home (referring to what was the former matrimonial home). The child said the mother did not want to return to that home.
When asked if he wanted to see his father, he said he did not know.
No observation session was conducted at that time as the SOCIT investigation was ongoing. No updated Family Report was prepared.
The child spent supervised time with the father on multiple occasions commencing in August 2024.
It is plain from the reports provided by the supervisors that the child is relaxed and happy in the father’s care. The supervisors observed a strong rapport between father and son, with them smiling and laughing together, and entirely appropriate physical affection between them. The child is described as confident and excited to see his father, greeting him warmly, leaning into him, snuggling into his chest, and engaging in play and conversation with his father. The child was never awkward, fearful or distressed. On the occasions the child did engage in silly play, the father managed that appropriately.
The supervision reports make it very clear that the child enjoys spending time with his father and that they share a close and loving relationship. It was notable that at the end of a visit in November 2024 the child was distressed and “sobbing”, explaining to his father that he was “crying because I love you, I love you so much” and hugged his father “for a period of time” before leaving.
In his most recent report Dr G described the child as active, energetic and outgoing. He opined:
He appears happy in his life living with his mother and maternal grandparents and with his friends and teachers at school. He appears to be coping with the supervised contact he has with his father, but for a bright boy he must wonder why it has to happen in such a setting and in such a way.
In his oral evidence Dr G reiterated that the child made it clear to him that he was happy living with his mother and maternal grandparents, that he was very happy at his school and that he has developed friendships there.
Developmental, psychological, emotional, and cultural needs
The child is developing well. He is settled at and progressing well at school. Dr G, described him as impressive and articulate. Dr G also indicated the child was “within the normal range expected for his age” and that there was no evidence that the child had any underlying neurodevelopmental disorder.
The child continues to experience enuresis – which the mother says is triggered by spending time with his father. Dr G does not make that causal link.
There was nothing in the evidence at trial as given by the Family Report writer or Dr G that suggested the child required a very slow and conservative ‘reintroduction’ of time with his father. Rather, he appears to be doing very well and is happy and settled.
The father is religious – and has to date celebrated religious festivals and holy days with the child. That was supported by the mother during the relationship. I accept this is an important part of the child’s identity.
Capacity of each person who has or is proposed to have parental responsibility for the child to provide for their developmental, psychological, emotional and cultural needs
Both parents were critical of the other in their affidavit material. However, I am satisfied that none of the complaints were of such significance that the Court would have any concern about the capacity of each parent to provide for the child’s needs.
The most significant concern I formed was of the mother’s response to and interpretation of a number of the child’s comments and behaviours – and the suspicions she formed regarding the child’s safety in his father’s care.
The mother’s concerns were not shared by the DFFH, the Family Report writer, SOCIT, or the child’s paediatrician. I similarly do not share the mother’s concerns.
I have already outlined some of the assertions made by the mother regarding the father’s parenting and whether it was appropriate. In her oral evidence the mother also suggested the father did not respect the child’s boundaries. In that regard she referred to the father kissing the child, which she said she would prefer ceased. I do not accept that this constitutes a “breach of [the child’s] boundaries” as asserted by the mother. I note further that at a supervised visit in September 2024 the father was observed to kiss the child on the head. The child responded, “I don’t like kisses but it’s okay if it comes from you”. There were other occasions during supervised visits that the father kissed the child – and the child did not object.
To the extent that the mother regards the father’s physical affection towards the child as indicative of a defect in his parenting capacity I reject that suggestion.
The reports of the supervised time indicate entirely appropriate parenting by the father. He was engaged, attentive and responsive to the child’s needs. The child clearly thoroughly enjoyed the time he was able to spend with his father.
I accept the father was before separation a caring and engaged father – and that he is ready, willing and well able to resume playing a far more significant role in the child’s life. However, as already observed, the father does experience a raft of health issues, and he did not adduce any professional evidence to support his assertion that his health issues and medical regime do not impact on his ability to appropriately parent the child.
The mother has been the child’s primary carer throughout his life, and he is, by all accounts, thriving. I am satisfied that the mother has misinterpreted some of the child’s actions and statements – and in doing so, substantially curtailed the child’s relationship with his father for many months post-separation. However, I also accept that the mother was not being vindictive, but distrustful and hypervigilant. This was the impression Dr G formed as well.
I am generally satisfied both parents are able to provide for the child’s long term and day to day developmental, psychological, emotional and cultural needs.
The benefit to the child of being able to have a relationship with their parents, and other people who are significant to the child
As already observed, the parents both have much to offer the child. They love him dearly. It will be of significant benefit to the child to have relationships with his parents, and with members of his maternal and paternal family. Each of the parents and the Independent Children's Lawyer recognise this – and all the proposals envisage that the parent/child relationships will continue to grow and develop.
Any other matters of relevance to the particular circumstances of the child
The father is religious. It is important to the father that the child remains engaged in and involved with the rich cultural traditions of that heritage. The father and child celebrated holy days throughout the year during the parties’ relationship. The mother – whilst not of the same religion – supported these practices. Indeed, her proposed orders included the child spending additional time with his father for the purposes of a number of the holidays.
Similarly, the child will spend Easter and Christmas with the mother – enabling him to experience the cultural heritage of both of his parents.
PARENTING ORDERS TO BE MADE
Decision making
I do not agree that the child’s best interests will be met by the mother having sole decision-making responsibility for his long-term care and development. If that were the case, there is a real chance the father could be excluded from having any meaningful input into those decisions. The mother unilaterally relocated the child at separation. She unilaterally enrolled him in primary school. She also did not provide the father with copies of the child’s school reports – but instead attached them, some months later, to affidavits filed in these proceedings. She was unable to adequately explain why she did not ensure the father was provided with copies in a timely manner.
I accept that the parties have had little experience post separation reaching decisions together. I also accept that their communication with each other is currently limited. However, both parents have much to offer the child. They each bring different experiences, and points of view to their parenting. I am satisfied they both wish to ensure a happy and stable childhood for their son, and they are both able to make safe and appropriate decisions as to his education, his medical treatment and the like.
Whilst it may be uncomfortable for the parents to negotiate and liaise with each other, they are capable of doing so. They did so for the first five years of the child’s life – reaching joint decisions about his early education, his religious and cultural upbringing and medical issues. Once these proceedings are concluded – and now that the mother has conceded the father does not present an unacceptable risk to the child – I am satisfied they will be able to return to a more constructive co-parenting relationship.
Live with and time with
I am satisfied that time can move to overnight on the first alternate weekend after these orders are made. The child has already spent unsupervised day time visits with his father for four hours in the City C region each alternate Saturday for a couple of visits. Time can now increase to overnight visits, and after three overnight visits, time can be extended to two-night weekends.
Once the father relocates to the Town B area, and no earlier than the commencement of Term 2 2025 in addition to the two-night weekend, the child shall have a meal with the father each alternate Thursday. In Term 3 time shall increase again to three nights a fortnight, and by Term 4, time shall increase to four nights each alternate fortnight. From the start of next year, the child shall spend five nights a fortnight with his father.
The child’s time with the father will include time on a Thursday night in the alternate week. Whilst the father had nominated time on a Wednesday, the mother nominated Thursday as a more appropriate time in the alternate week. By making the time Thursdays, pursuant to my orders the child will ultimately spend each Thursday overnight with his father – with each alternate weekend commencing on a Thursday. This will give him some predictability and stability.
In relation to Term 1 holidays this year, as the child will only recently have commenced spending nights with his father, I am not satisfied it will be in the child’s best interests for extended overnight time to occur. Accordingly, there will be two occasions of two overnight visits.
Thereafter, I am satisfied the child’s best interests will be met by increasing to a four-night block with his father in the Term 2 mid-year holidays, increasing to a block of five nights in the Term 3 holidays, and thereafter for half of each school term holiday. In relation to the long summer holidays, that will be at times agreed and if no agreement, then on a week about basis. These arrangements provide the child with a graduated increase of time with the father. A sharing of the holidays will ensure the child has the benefit of spending extended leisure time with each of his parents, enabling him to participate in a range of social and other activities.
The child will otherwise live with his mother.
I am not satisfied it is in the child’s best interests to advance further than a five night/nine-night arrangement between his parents. The regime outlined will already be a significant change for the child. He will have a lot to get used to having endured no time with his father, and then limited supervised time.
The Family Report writer expressed a view that the child may tolerate a more accelerated progression of time than as I have determined. However, that would depend on how quickly the child adjusted and settled into each new phase – which is of course, not known. I am satisfied that the orders I am making adequately take into account the need the child will have to adapt and adjust to the changes.
I do not accept the mother’s assertion that such a slow and drawn-out process which moves no further than four nights and an evening meal during term times and no more than five nights blocks in any holiday period is appropriate. There is no basis, in my view, for such a cautious and conservative regime to be implemented. I am concerned the child may not understand why his time with his father is as limited as proposed by the mother. I am also very much heartened by the positive, loving and warm relationship between the child and the father as outlined in the reports of supervised time.
I note the mother’s assertion that the child is, in some respects, a little immature. She also describes that he “regresses” after periods of time with his father – referring to the child having disturbed sleep and wetting himself. She also said at times he could become defiant. However, there was nothing in the supervisor’s reports, nor in the evidence of his treating paediatrician that indicated there was any need for a very slow and cautious approach to be adopted. Indeed in his oral evidence Dr G referred to the child as “very bright”, “bubbly”, “socially connected”, “forthcoming and articulate” and “very impressive”. Further it was not suggested by Dr G that the child’s behaviour after spending time with the father was problematic. Nor did Dr G opine any causal link between the child’s enuresis and time with his father.
I accept the mother may have some issues in fully embracing the regime that I have determined is in the child’s best interests. However, I also note that there is an absence of professional evidence that she will be unable to emotionally or psychologically manage the arrangements that I am contemplating, or that her parenting capacity will be impacted as a result of the orders I am making. She has complied with orders to date, and there was no suggestion that she would not comply with the determination of this Court.
I accept that the father has not had the opportunity to ‘step up and be a parent’ for a protracted period. However, I also accept that prior to separation he was an engaged father. The child clearly has a close and loving relationship with him.
I also accept that the father will continue to work full time. Additionally, the father’s health issues – which were not fully explained at trial – give me some concern that an equal time regime may not be workable.
Lastly, I have some concerns that the parents’ communication and co–parenting relationship may not be sufficient to sustain an equal time, or close to equal time arrangement.
Weighing up all the considerations outlined in these reasons, I am satisfied that it is in the child’s best interest to remain primarily living with his mother, and for his time with the father to gradually increase to ultimately see the child spending five nights a fortnight, and half of the holidays with his father.
I have not included any kilometre limitation as to what might constitute the “Town B area”. The mother’s proposed orders did so – but no submissions were made as to the kilometre boundaries proposed, what towns might be available for the father to live within those limits, or the travel times involved. I am satisfied the father is sensible and sufficiently child focussed to ensure that he resides close enough that the child will not be overly burdened by extensive travel to his primary school.
In terms of special occasions, I have extended the time each of the parties proposed on Mothers’ Day and Fathers’ Day to conclude at the commencement of school on the Monday. This will avoid an unnecessary changeover on the Sunday evening. My orders also provide for an appropriate sharing of the child’s birthday, and time with his parents on each of their birthdays.
The child will also spend time on Christmas and Easter with his mother – those being festivals she celebrates. I have not made an order for the child to spend time with the mother for another cultural holiday. That was an order sought by the mother in the minute provided at the conclusion of the hearing – but had not been an order sought in her response or addressed in her affidavit material. There was no significant evidence advanced as to why this was a culturally important time for the mother and child, beyond the mother being of that cultural origin.
It is appropriate the child spends additional time with his father around a number of religious festivals and holy days to ensure he remains connected to that heritage. The mother also proposed the child spend additional time with the father on most of the holy days as sought by the father, but for shorter periods.
I am satisfied that the proposals put forward by the Independent Children's Lawyer reflect an appropriate balance – enabling the child to spend additional time with his father on these special occasions. I have altered the time the child will spend with his father on a religious celebration from that proposed by the Independent Children's Lawyer as the festival will not always fall on a weekend as envisaged by the Independent Children's Lawyer.
I am not prescribing starting and ending times for each festival – it will be incumbent upon the parents to work out those details depending on where in the week the holy day/s falls.
Changeover
Both parents proposed different changeover locations. No submissions were made as to why one venue was preferable to the other. It appears the parties have commenced using the City C petrol station. Changeovers will remain there for the commencement and conclusion of time when the child is spending daytime with the father. Once the time progresses to overnight visits, and prior to the father relocating, the mother will be required to share in the driving and travel to Suburb D to collect the child at the conclusion of time.
Upon the father relocating to the Town B area all changeovers that do not occur at school will take place at the petrol station in Town B nominated by the mother rather than the petrol station in Town B nominated by the father. As indicated, no submissions were made as to why one venue is preferable to the other. I have simply adopted the mother’s proposals as she currently resides in the area and accordingly, I am satisfied she is better placed to nominate an appropriate changeover venue.
Travel
The mother sought orders permitting interstate and overseas travel. There was no evidence adduced about this issue save that the mother during cross examination said she was concerned the father might take the child to another country notwithstanding the current situation there. There were no submissions made as to why I should make orders for interstate and overseas travel – and no suggestion that either party had plans to travel imminently. Accordingly, I am not prepared to make any orders regarding same.
Communication
The parents agree they will use a parenting application to communicate with each other. In case of an emergency, they can use telephone or text message.
The mother proposed an order that the child be able to communicate with his parents by telephone as requested by him. The Independent Children's Lawyer proposed the child communicate weekly by video call with the father but made no made proposals regarding the child’s communication with his mother when away from her for extended periods. The father’s proposals contained no arrangement for communication between either parent and child. No submissions were made in relation to the child’s communication with his parents.
However, I am satisfied that the child should be able to communicate with each of his parents on a reasonable basis when his is out of their care for a protracted period. I will make orders that he communicate with the non-resident parent each Tuesday or at such other times as they may agree. That will mean he will speak with his father each Tuesday during school terms and have communication with the parent his is away from on Tuesdays during school holidays, as a minimum. He can also speak to the non-resident parent on his birthday in the event that his birthday falls on a school day and the other parent will not otherwise see him.
Injunctions
I am of the view that it is appropriate that the parents both be restrained from discussing these proceedings, and from denigrating the other parent or member of that parents’ household or family in the presence or hearing of the child, or from permitting anyone else to do so. In my view – given the current lack of trust – there is currently a risk either parent could feel motivated to say something negative about the other to the child.
Beyond that, however, I am not satisfied there is any basis to make the restraints otherwise sought by the parents. The mother’s proposed injunctions, including that the child have a separate bed in a separate room to the parties, appropriate bedding and that the parties “attend to the child’s dietary and environmental needs” cannot be sustained. There is no cogent evidence of risk in regard to any of these issues. The father’s injunction in relation to the mother unilaterally arranging appointments is not necessary given that I am making an order for the parents to make joint decisions about the child’s long-term major issues. Similarly the orders proposed in relation to medical treatment and/or the child’s education are unnecessary in those circumstances.
Additional orders
There were a number of additional orders sought by the parties and the Independent Children's Lawyer including that parties continue to arrange for the child to attend upon his paediatrician. I do not regard this as a matter requiring an order. Both parties – with responsibility for the child’s long-term care – will make whatever arrangements they deem are appropriate and it is unnecessary for the Court to be prescriptive. I further note that both parents are content with Dr G and there is no suggestion that they will seek alternative paediatric assistance.
The Independent Children's Lawyer also proposed the parents engage with their own mental health practitioners. It would likely be of significant benefit at least for the mother to obtain some counselling and support to assist her to have a more realistic understanding of a range of ordinary childhood behaviours, and better skills to manage and respond to statements made or behaviours exhibited by the child that she finds worrisome. However, I will not make orders requiring attendance upon mental health professionals, untethered to parenting orders. As counsel for the Independent Children's Lawyer acknowledged, the case law makes it plain there are limits to the power of the Court to exercise its welfare power and place limits on the conduct of parents; see Oberlin & Infeld (2021) 63 Fam LR 88. It is a matter for the parents.
Notwithstanding, should either parent choose to engage with mental health professionals, that treater may be assisted by having a copy of the Family Report and risk assessment, the contact centre reports and the paediatrician’s reports. Accordingly, the parties may provide those documents.
I am also not making the order either for the parties to attend alternate dispute resolution (as sought by father) or for a parenting coordinator (as proposed by the Independent Children's Lawyer). The parties are already required to seek alternate dispute resolution prior to issuing further parenting proceedings. I am not ordering the parties to appoint a parenting co-ordinator. Whilst they both expressed an interest in this, neither sought an order. I do not know the costs or availability of such a person – and it will be a matter the parents will need to explore and implement themselves if they require it.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 11 February 2025
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