Dansey & Dansey (No 4) - [2023] FedCFamC1F 1068

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dansey & Dansey (No 4) [2023] FedCFamC1F 1068

File number(s): SYC 3614 of 2021

Judgment of: ALTOBELLI J

Date of judgment: 13 December 2023

Catchwords: FAMILY LAW – PARENTING – Final – Where previous allegations of sexual abuse have been made against the father in relation to one of the children – Where the mother alleges she has been sexually abused by the father throughout a ten-year period – Where the single expert psychiatrist diagnoses the mother with a delusional disorder – Where the mother’s treating psychiatrist diagnoses her with post-traumatic stress disorder as a result of the sexual abuse in the marriage – Where the father alleges one of the children is enmeshed with the mother – Whether the mother can genuinely facilitate a meaningful relationship between the children and the father – Where both parties seek primary care of the children – Schooling issues – Family therapy – It is ordered the children live with the father and spend significant and substantial time with the mother.

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

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carter & Wilson [2023] FedCFamC1A 9

Dansey & Dansey (No 3) [2023] FedCFamC1F 592

F v M [2021] EWFC 4

Helbig & Rowe and Ors [2016] FamCAFC 117

Illgen & Yike [2018] FamCA 17

M v M (1988) 166 CLR 69; [1988] HCA 68

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

Ramzi & Moussa [2022] FedCFamC2F 1473

WK v SR (1997) FLC 92-787; [1997] FamCA 57

Division: Division 1 First Instance

Number of paragraphs: 268

Date of last submission/s: 13 October 2023

Date of hearing: 14–16, 22–23, 26–27 June 2023, 3–5, 11–13 October 2023

Place: Sydney

Counsel for the Applicant: Mr Sansom SC

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Ms Lawson

Solicitor for the Respondent: Burgess Family Law

Counsel for the Independent Children's Lawyer: Mr Kelly

Solicitor for the Independent Children's Lawyer: G & D Lawyers
ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DANSEY

Applicant

AND:
MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The Applicant father (“the father”) have sole parental responsibility for the children, X born 2012 and Y born 2013 (“the children”).
2.In exercising sole parental responsibility pursuant to the preceding paragraph, before making a decision concerning the long-term care, welfare and development of either or both of the children in respect of their education, or significant medical treatment, the father shall do as follows:
(a)Provide to the mother in writing his proposed decision, not less than 14 days in advance of implementing his decision; and
(b)If the father receives a written response from the mother to his proposed decision within seven days of notice being given to the mother, he shall consider her response before exercising his sole parental responsibility in respect of the decision.

3.The father shall otherwise keep the Respondent mother (“the mother”) informed via the Our Family Wizard application about the children’s health, in particular the need for any operation, dental treatment, speech therapy, physiotherapy, occupational therapy, any specialist treatment, any alternative medical treatment or the need to medicate either of the children on a long-term basis, as well as attendance by the children for any reason upon a medical practitioner, other health care practitioner, psychologist, counsellor, family therapist or psychiatrist.

Live with/Time Arrangements
4.Within 72 hours of these orders, the mother is to do all acts and things necessary to cause the children, if not already in the father’s care, to commence living with the father until 2 February 2024, during which period of time the children shall spend no time with the mother and live with the father.
5.During the period of no time with the mother, the mother be restrained by injunction from:
(a)Allowing the children to have a key to her home;
(b)Approaching the children, and allowing the children or encouraging them to approach her;
(c)Communicating with the children by telephone call (other than as provided for Order 6 below), letter, text message, video call, email or any other messenger app or social media app, or gaming platform, including responding to any messages, emails or letters received by her from X and/or Y or any calls placed to her by X and/or Y, except as may be agreed between the parties in writing;
(d)Attending the premises of any school attended by X and/or Y; and
(e)Attending the venue or location of any extracurricular activity or social activity participated in by X and/or Y.

6.During the period of no time with the mother pursuant to Order 4, the father shall facilitate a five minute telephone or video call between the children and the mother once weekly on Sundays between 6.00 pm and 7.00 pm and on Christmas Day 2023 between 9.00 am and 10.00 am or at any other times as may be agreed between the parties.
7.From the conclusion of the period of no time with the mother pursuant to Order 4 and until Y commences Year 7 in 2026 and conditional on the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children will spend time with the mother from the conclusion of school or 3.30 pm on Friday to the commencement of school or 8.30 am on the following Wednesday in each alternate week.
8.From the date of Y commencing Year 7 in 2026 and thereafter, and conditional upon the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children live with the parents in an equal time arrangement during the school term as follows:
(a)With the father from the conclusion of school or 3.30 pm on Friday for one week until the conclusion of school or 3.30 pm the following Friday; and then
(b)With the mother from the conclusion of school or 3.30 pm on Friday for one week until the conclusion of school or 3.30 pm the following Friday.

9.From the date of Y commencing Year 7 in 2026 and thereafter and conditional upon the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children live with the parents during the school holidays as follows:
(a)With the father during the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years; and
(b)With the mother during the second half of the school holidays in odd numbered years and the first half of the school holidays in even numbered years.

10.Within 48 hours of these orders, or as soon as reasonably practicable, the parents do all things necessary to facilitate and enable the Independent Children’s Lawyer and X’s counsellor, Ms DD to meet with the children to explain the effect of these orders.

Special Occasion Time
11.Notwithstanding any other order, from Christmas in 2024 and unless otherwise agreed between the parties in writing, the children shall spend time on Christmas Day with the parties as follows:
(a)From 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day with the father in even numbered years; and
(b)From 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day with the mother in odd numbered years.

12.In respect of the weekend on which Father’s Day falls, the children live with the father from the conclusion of school on Friday until commencement of school on Monday (if they would not otherwise be living with the father at those times pursuant to these orders).
13.In respect of the weekend on which Mother’s Day falls, the children live with the mother from the conclusion of school on Friday until commencement of school on Monday (if they would not otherwise be living with the mother at those times pursuant to these orders).
14.On each of the children’s birthdays each year, if the children would not spend time with a parent at all on that day pursuant to other provisions in these orders, the children spend time with that parent on the birthday as follows:
(a)If the birthday falls on a school day, from conclusion of school until 6:00 pm; and
(b)If the birthday falls on a non-school day, from 3:00 pm until 6:00 pm if the children are not outside a 100 km radius of PP Post Office on holiday.

Changeover
15.The arrangements for the children to live respectively with the parents pursuant to these orders shall be implemented by the party or their nominee arranging the collection/return of the children to/from their school(s) (where their time commences or concludes on a school day) or by the party arranging for either or both of the children to travel to/from their home to/from school by public transport.
16.During school holiday periods or a non-school day, the party whose time with the children concludes shall deliver the children to the home of the other party on the following basis:
(a)The relevant party shall send the children unaccompanied inside the home of the parent who is to commence time; and
(b)The changeover time shall be 3.00 pm.

17.The parties shall respectively return to the other party the children’s clothing, school supplies and belongings that the children each possessed when they came into their care, when the children return to the other party’s care.

Schooling
18.Within seven days of the date of these orders, the parties are to do all acts and sign all documents to enrol X at QQ School to commence Term 1, 2024.
19.Y is to attend the school the school determined by the father, in consultation with the mother in accordance with these orders, noting that the parents are agreed that he will remain at RR School for his primary school years.

Communication
20.Unless otherwise agreed in writing between the parties, they shall communicate with each other about the children using the Our Family Wizard application or an agreed equivalent.
21.During school terms when the children are living with the father, for a period of 12 months following the date of these orders, the mother shall:
(a)Not communicate, or attempt to communicate with the children (except whilst she and either of the children are at a school function); and
(b)Block the children’s mobile phone numbers on her mobile phone so that she cannot receive calls or messages from the children.

22.Notwithstanding the preceding paragraph, during the children’s school holiday periods for the period of 12 months following the date of these orders, the father shall facilitate an audio-visual call (FaceTime or similar) between the children and the mother each Wednesday between 4.00 pm and 5.00 pm and on Christmas Day between 9.00 am and 10.00 am by arranging for the children to call the mother from his mobile phone.

Exchange of Information
23.Each parent is to immediately notify the other if X or Y is seriously ill or is admitted to hospital during such time as the child is living or spending time with that parent and to advise the other parent of the names and contact details and addresses of the treating medical practitioners, health care providers and allied health professionals.
24.The father shall keep the mother informed of his residential address, email address and telephone contact number(s) and the mother shall keep the father informed of her residential address, email address and telephone contact number(s).
25.Each of the parties forthwith authorise any school(s) the children attend to provide to each of the mother and the father photocopies of reports, school photographs, newsletters and announcements of school activities, or other notices pertaining to the education of the children.
26.Each party is at liberty to provide a copy of these orders to the child’s school and any treating medical practitioners, health care providers and allied health professionals.
27.Each parent shall notify the other by Our Family Wizard application not more than 28 days before any proposed change to their address and provide to the other parent at that time details of their proposed new address.
28.Each parent shall notify the other by Our Family Wizard application not more than 24 hours after any change to their address, landline telephone number, mobile telephone number and/or email address.

Restraints and Injunctions
29.Each of the parties be restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and/or the children;
(b)Using physical discipline on the children or either of them; and
(c)Discussing these proceedings or any allegations raised in such proceedings or discussing the contents of any documents filed in or used in these proceedings to, with, or in the presence or hearing of, the children (or any of them) and from permitting any other person to do so.

30.Each of the parties shall respect the privacy of the other parent, not question the children about the personal life of the other parent, and speak of the other parent respectfully.
31.In the event that X or Y return to the mother during any period in which they are otherwise to be in the care of the father pursuant to these orders, the mother shall immediately:
(a)Contact the father to confirm the location of X and/or Y; and
(b)Deliver X and/or Y to the home of the father.

32.In the event that X or Y return to the father during any period in which they are otherwise to be in the care of the mother pursuant to these orders, the father shall immediately:
(a)Contact the father to confirm the location of X and/or Y; and
(b)Deliver X and/or Y to the home of the mother.

Children’s Therapy
33.The father shall do acts and things to facilitate X’s attendance upon a female clinical psychologist, whether that be Ms DD or otherwise.
34.The parties are to do all things to facilitate Y continuing to attend upon his counsellor, Ms FF, for such duration and such frequencies as recommended by Ms FF from time to time, with the costs of this therapy to be shared equally by the parties.

Family Therapy
35.The parties shall do all things necessary to commence family therapy with either Ms SS, Ms TT or such other family therapist as may be agreed between the parties subject to the following conditions:
(a)If logistically possible, the family therapist see the mother during her period of no contact with the children;
(b)The family therapist commence seeing the rest of the family after the period of no contact with the mother;
(c)The family therapy be non-reportable;
(d)The family therapist be provided with a copy of the reasons for judgment and these orders;
(e)Leave be granted to each of the parties to provide to the family therapist copies of any documents filed in or produced for the purposes of these proceedings, including any single expert reports, if and only if requested by the family therapist;
(f)In addition to any matters considered to be relevant by the family therapist, the parties each instruct the family therapist to direct his/her therapy to the following matters:
(i)Assisting each parent and the children to regularise their living arrangements, reduce conflict and improve communication;
(ii)Providing a forum for X and Y to express and have addressed any concerns or worries about their living arrangements and wellbeing; and
(iii)Assisting the parents in making decisions about the children and with how they might otherwise best address the needs of the children.

(g)In addition to the above, the therapist be instructed by each of the parties to specifically address X’s refuse/resist dynamic with the father and his family and her aversive attitude generally;
(h)Each parent participate in any post-separation parenting course as may be recommended by the therapist;
(i)The family therapy continue for at least six months, at a frequency recommended by the family therapist; and
(j)The costs of the family therapy be shared equally by the parties.

Mother’s Therapy
36.The mother be and is hereby required to attend or continue attending on her treating practitioners, Ms S and Dr T, for a duration and frequency as recommended by her treaters.

Passports and Overseas Travel
37.The children are permitted to travel internationally as provided by s 11(1)(b) of the Australian Passports Act 2005 (Cth) and for this purpose the father is permitted to apply for the issue of Australian passports for the children.
38.The father shall retain custody of the children’s passports at all times.
39.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), it is hereby ordered that X born 2012 and Y born 2013 are to be issued with an Australian travel document.
40.Pursuant to s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and these orders, X born 2012 and Y born 2013 are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
41.The parties will do all acts and things and sign all documents necessary, including providing the original birth certificates of the children, within seven days of being requested to do so, to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005 (Cth)) to enable X born 2012 and Y born 2013 to be issued with an Australian travel document.
42.In the event that a party refuses or neglects to sign any document necessary to issue X born 2012 and Y born 2013 with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 (Cth) give consideration to issuing an Australian travel document pursuant to s 11(2)(a) of the Australian Passports Act 2005 (Cth).
43.Commencing 2026, in the event either parent wishes to travel overseas with the children pursuant to these orders, the travelling parent shall be at liberty to facilitate overseas travel on the following basis:
(a)The travelling parent must give to the other parent not less than 90 days’ notice in writing of the dates of the proposed travel;
(b)The children shall live with the other parent during the relevant school holiday at all other times during that school holiday period, except during that travel period; and
(c)Not less than 28 days immediately prior to the departure date, the travelling party shall provide to the other party:
(i)An accurate, written itinerary for the trip, including, but not limited to, departure and return times and dates, the place(s) and country/countries the children will be travelling to and the dates on which the children will arrive and depart each destination;
(ii)A mobile phone number/numbers and address/addresses at which the children and the travelling party can be contacted during the duration of the children’s holiday; and
(iii)Copies of the children’s forward journey and return journey tickets or electronic tickets (including air tickets).

44.In order to give effect to the provisions of the preceding paragraph of these orders, the mother and the father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the travelling party travelling overseas and returning to the Commonwealth of Australia with the children, including, but not limited to, signing Australian passport applications and/or Australian passport renewal/extension applications and any other necessary visa/other travel documentation for the children.

Parenting Courses
45.Forthwith upon the making of these orders the father and mother shall, if they have not already done so, enrol in and participate in:
(a)The Tuning into Teens course; and
(b)The Circle of Security course,

for the next available session for those courses.

Miscellaneous
46.Each school holiday period pursuant to these orders is deemed to commence on the first day of conclusion of the NSW gazetted school term and conclude at 3.00 pm the day prior to the first day of the new next NSW gazetted school term.
47.The parties shall use their best endeavours to ensure that the children attend their sporting, educational and creative activities (“extra-curricular activities”) which occur during times that the children are in their respective care.
48.Each party shall do all acts and things reasonably required of the other including the signing or execution of all necessary documents to give effect to the provision of these orders within seven days (or otherwise specified in these orders) of being requested to do so. In the event a party refuses or neglects to sign or execute and return a document within seven days (or otherwise specified in these orders) of presentation to them or a solicitor representing them then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia is empowered and appointed and directed to hereby sign or execute the same in the name of the defaulting party upon presentation of such document and an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

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

These reasons for judgment explain the orders that the Court has made in relation to the children, X aged 11 (“X”) and Y aged 10 (“Y”) (“the children”), in this difficult and complex parenting matter.
BACKGROUND
The father is the applicant (“the father”). He is 44 years old and describes himself as a public servant. He currently lives in a suburban home in Suburb GG with his parents, but the Court is advised he is likely to move into the former matrimonial home (“the Suburb B property”) if orders are made that the children primarily live with him. The mother is the respondent (“the mother”). She is 45 years old and describes herself as a full-time mother. She previously resided in the Suburb B property but has recently moved into a rental property in Suburb UU. The parties commenced cohabitation in 2007 and married in 2018. They separated on a final basis on 10 May 2021 and were divorced in 2023.
On 10 May 2021, the mother unilaterally relocated with the children from the Suburb B property to Town G. On 17 May 2021, the father commenced these proceedings seeking urgent interim orders for the mother to return the children to Sydney. The mother filed a Response on 3 June 2021 seeking final orders that she have sole parental responsibility for the children, and they spend no time with the father. Following a contested interim hearing before Berman J on 4 June 2021, his Honour made orders for the mother to return to the Suburb B property in Sydney with the children and for the father to vacate the premises. Further interim parenting orders were made for equal shared parental responsibility, for the children to live with the mother and spend time with the father supervised by the paternal grandparents from 12 July 2021 for a period of four hours each Wednesday and for a period of eight hours each Sunday.
On 8 July 2021, the mother filed a Notice of Appeal against the decision of Berman J and an Application in a Case on 7 July 2021 seeking a stay of the interim orders. Berman J dismissed the mother’s application for stay on 27 August 2021 and the Full Court dismissed the mother’s appeal on 19 November 2021.
On 9 September 2021, the father spent time with the children for the first time in four months since separation. Following the mother’s allegation that X had reported she gave her father a “massage”, the father’s time was professionally supervised, on a without admissions basis, from 17 October 2021 to 17 November 2021. After 17 November 2021, the paternal grandparents resumed supervising the father’s time with the children. The contact arrangement provided by the 4 June 2021 orders remained in place until the interim hearing before Curran J outlined at [7].
Dr U, clinical psychologist, was appointed as single expert psychologist pursuant to orders made on 16 September 2021 and prepared a single joint expert report dated 16 August 2022 (“Dr U’s first report”) (Exhibit A2). This report was released to the Independent Children’s Lawyer in the first instance, then released to the parties and Dr V following their interviews with him on 21 December 2022. Dr V was appointed single expert psychiatrist on 22 June 2022 and prepared a report containing psychiatric assessments of both parents on 12 February 2023 (“Dr V’s report”) (Exhibit A4).
Following the release of Dr U’s first report, the father filed an Application in a Proceeding on 24 December 2022 seeking to vary the interim orders made by Berman J. The matter was listed for directions hearing before me on 12 January 2023 and the maternal grandfather gave an undertaking that he would supervise the mother’s time with the children. After the release of Dr V’s report, the father’s Application in a Proceeding was heard by Curran J on 17 February 2023. On 24 February 2023, her Honour made orders for the children to remain living with the mother but that her time be supervised by the mother’s cousin, Ms O (as the maternal grandfather was no longer able to supervise the mother’s time). Orders were also made for the children to spend time with the father (supervised by the paternal grandparents) each Wednesday after school until Thursday and each alternate weekend from Friday after school to Monday before school (five nights per fortnight) and half of the April school holidays.
Dr U was then jointly instructed to prepare an addendum report and provide recommendations on how to deal with X’s resistance in spending time with the father. This report is dated 10 June 2023 (“Dr U’s second report”) (Exhibit A3). Counsel for the mother raised an objection to parts of the report that were not limited to the terms of reference provided to the expert. This will be discussed further below and the Court will find that limited weight will be placed on Dr U’s views that were outside the terms of reference.
There was extensive focus on the mental health of the parties throughout these proceedings, and in particular that of the mother. The mother is currently diagnosed with and is being treated for complex post-traumatic stress disorder (“complex PTSD”) and comorbid major depressive illness. Throughout these proceedings, Dr V has concluded that the mother meets the criteria for a delusional disorder diagnosis, although her treating team disagrees. X experiences anxiety and sees Ms DD for counselling. Y has historically had suicidal ideations and exhibited self‑harming behaviour but it seems to be agreed between the parties that he no longer engages in this. Y also sees a therapist for counselling. There are no known diagnoses for the father.
An Independent Children’s Lawyer represents the children. At the hearing of this matter, both parties and the Independent Children’s Lawyer were represented by competent lawyers and experienced counsel.
The matter was listed for final hearing for eight days which proceeded on 13, 14, 15, 16, 22, 23, 26 and 27 June 2023 (“the June hearing dates”). Unfortunately, the matter went part-heard and proceeded for a further six days on 3, 4, 5, 11, 12 and 13 October 2023 (“the October hearing dates”). The Court heard an interim application on 17 July 2023 and delivered judgment on 19 July 2023 in Dansey & Dansey (No 3) [2023] FedCFamC1F 592 (“Dansey & Dansey (No 3)”) and orders were made (“the July interim orders”) providing for the children to live with the mother and spend time with the father each alternate Friday to Wednesday. The orders provided that the mother’s time be supervised by Ms EE. The paternal grandparents were released from their undertaking to supervise the father’s time, but orders were made for the children’s overnight time with him to be in the same premises as at least one of the paternal grandparents. The mother was to remain outside a radius of 10 km of Suburb B from 2.30 pm until 8.00 pm on the days the children go into the father’s care to commence time with him and was not to communicate with the children when they are in the father’s care.
On 8 November 2023, my chambers received an email by consent with updating information. All parties consented to the material being accepted into evidence. The relevant section of the email is copied below as follows:
By agreement, the parties provide the following updating information:
1.The supervisor of the Mother, [Ms EE], has chosen to cease to be supervisor from 1 November, 2023 and the Mother asserts this transpired after the conclusion of the trial;
2.The Mother has arranged for her father to supervise until 15 December 2023. We attach copy of [Mr CC’s] Undertaking filed on 7 November 2023; and
3.The Mother has entered into a 12 month lease of premises at [VV Street, Suburb UU] and she will relocate to that address with the children as soon as possible […]. [Suburb UU] is in the catchment area for [QQ School].
The issues are complex and nuanced, and the case was difficult to decide. Both parties make very serious and alarming allegations of risk against each other. Among others, the mother makes allegations of serious sexual assault over a ten-year period from the father, physical assault against her and Y, verbal abuse and denigration and financially controlling and coercive behaviour. Throughout the history of these proceedings, the mother made allegations in respect of sexual abuse and/or grooming of X but has now withdrawn those allegations upon “reflection”. It is also an undisputed fact that X does not hold, and has never held, a belief that she has been sexually abused by the father. The father relies heavily on the expert reports and makes allegations, among others, that the mother’s mental health is so poor that the children are at risk of psychological harm in her care.
It is an agreed fact that X’s relationship with the father has significantly declined over the course of these proceedings. At the time of Dr U’s first report with interviews held in May 2022, X described the father as someone she loves and likes to have fun with. She said there “was nothing she did not like and nothing she would change” although at times he got “super angry” and shouted and scared her (Dr U’s first report at paragraph 129). In February 2023, X began spending overnight time with the father in accordance with the interim orders made by Curran J. By mid-2023, X began running away from the father and the paternal family during Court-ordered time, and by less than two weeks later she refused to spend time with him. X was interviewed again by Dr U for the purposes of her second report in June 2023 where within two minutes of the interview she “spontaneously expressed a wish not to see” the father (Dr U’s second report at paragraph 52). She also disclosed that the father physically pushed her on one occasion (paragraph 55), and she worries a lot and feels depressed when not around the mother (paragraph 59). Ms O’s notes (Exhibit A13) disclosed concerning language used by X in relation to the father. In mid-2023, she is recorded as saying that in a perfect world she would “stab him in the heart and then eat his heart” without going to jail. This will be discussed further below. However, X began spending time with the father again in accordance with the July interim orders, but it is agreed by all parties that it is “under sufferance” and both children are largely unresponsive when with the father.
By the time that the evidence had closed, and final submissions had been made, a number of observations became apparent to the Court. The relationship between the mother and the father is a toxic one characterised by deep distrust. There is no direct communication between them. The children have a close relationship with each other, but the Court is concerned that X’s relationship with her brother is not age-appropriate and is overly protective. The children have a good relationship with the mother, but the Court is concerned that the mother’s relationship with X is inappropriate, and probably an enmeshed one. The relationship between the children and the father has transitioned from being a good one, to one of indifference and open defiance in the case of X. They spend time with him but, as indicated above, this occurs “under sufferance”. All parties agree, in principle, that the preservation and maintenance of the relationship between the children and the father is of central importance to them both in the short and long-term. One way of understanding the mother’s perspective on this is that the children have become estranged from the father because of historical and present actions and inactions by him. Conversely, one way of understanding the father’s perspective on this is that the mother has alienated the children from him and is incapable of supporting this relationship. The children’s relationship with the father is fragile and tenuous. Whilst the focus of the Court’s orders is to preserve and maintain this relationship in the future, the Court is satisfied that the cause of the deterioration in the father’s relationship with the children is partly the alienating behaviours of the mother, and partly the estranging behaviours of the father.
The case that started on day one of the hearing was not the same case that concluded on day 14. The proposals of the parties quite appropriately changed in response to the ebb and flow of the evidence as it was presented and tested in cross-examination. Both parties eventually made proposals for final orders that were somewhat inconsistent with their own cases about the risk of harm to the children in the other parent’s care. This case was very much a risk assessment exercise, and the stark reality for this family, and for the Court, is that the best that can be achieved for the children is that orders are made that exposes them to the least risk whilst in the care of either the mother or the father.
The litigation between the parties about alteration of property interests remains pending.
THE EVIDENCE
In support of his case, the father relies on the following documents:
(a)Further Amended Initiating Application filed 28 September 2023;
(b)His affidavit filed 22 May 2023;
(c)Affidavit of Mr Q filed 22 May 2023;
(d)Affidavit of Ms R filed 22 May 2023;
(e)Outline of Case Document filed 8 June 2023;
(f)His updating affidavit filed 29 September 2023; and
(g)Various documents tendered during the proceedings, marked as Exhibits A1–A15.
In support of her case, the mother relies on the following documents:
(a)Amended Response to Final Orders filed 11 May 2022;
(b)Her affidavit filed 26 May 2023;
(c)Affidavit of Dr T filed 22 May 2023;
(d)Affidavit of Ms S filed 22 May 2023;
(e)Affidavit of Ms AK filed 22 May 2023;
(f)Affidavit of Ms O filed 22 May 2023;
(g)Affidavit of Dr HH filed 22 May 2023;
(h)Affidavit of Ms JJ filed 22 May 2023;
(i)Affidavit of Ms J filed 22 May 2023;
(j)Affidavit of Ms KK filed 22 May 2023;
(k)Affidavit of Mr CC filed 22 May 2023;
(l)Affidavit of Mr D filed 22 May 2023;
(m)Affidavit of Ms LL filed 22 May 2023;
(n)Outline of Case Document filed 9 June 2023;
(o)Affidavit of Ms EE filed 28 September 2023;
(p)Updating affidavit of Ms O filed 28 September 2023;
(q)Updating affidavit of Ms J filed 28 September 2023;
(r)Her updating affidavit filed 28 September 2023; and
(s)Various documents tendered during the proceedings, marked as Exhibits R1–R59.
In support of his case, the Independent Children’s Lawyer relies on the following documents:
(a)Outline of Case Document filed 9 June 2023; and
(b)Various documents tendered during the proceedings, marked as Exhibits ICL1–ICL3.
The witnesses who were called to give evidence include:
(a)The father;
(b)The mother;
(c)The mother’s treating psychiatrist, Dr T;
(d)Dr V;
(e)Dr U;
(f)Mr Q (the paternal grandfather);
(g)Mr CC (the maternal grandfather);
(h)Ms S;
(i)Ms J;
(j)Ms R (the paternal grandmother);
(k)Dr HH;
(l)Ms O;
(m)Mr D;
(n)Dr LL;
(o)Ms AK;
(p)Ms KK; and
(q)Ms EE.
The Court has received two updating emails from the parties dated 8 November 2023 and 6 December 2023 respectively. These have been marked Exhibit CA and Exhibit CB.
THE COMPETING PROPOSALS
All parties handed up a final Minute of Order by the time of closing submissions on 13 October 2023.
The father’s proposal is contained in his Final Minute of Order (Exhibit A15). He seeks orders that he have sole parental responsibility for the children and the children commence living with him within 72 hours of the orders being made for a period of 30 days. During this time, the children are to spend no time and have no contact with the mother save for a five minute phone call facilitated by the father twice per week. Following the no contact period and until Y commences high school the children are to live with him and spend time with the mother from the conclusion of school on Friday until the commencement of school on the following Wednesday each alternate week (9/5 arrangement). When Y commences high school, the father proposes that the children live in an equal time arrangement with changeover to occur on Friday after school and spend half of each school holiday period with each parent. The father also seeks specific orders for time during Christmas from 2024 on an alternating basis. He proposes that the Independent Children’s Lawyer and Ms DD explain the effect of the orders to the children and X continue to attend upon Ms DD and Y continue to attend upon Ms FF. The parties are to commence non-reportable family therapy with Ms SS, Ms TT or another family therapist. The father seeks to always retain the children’s passports. In relation to schooling, the father proposes that if he is residing within the catchment area for QQ School, X be enrolled at QQ School commencing Term 1 2024. If the father is not residing in the said catchment area, X be enrolled at WW School commencing Term 1 2024. If neither of the parties are residing within the catchment area of WW School, X be enrolled at XX School. For the purposes of secondary schooling, if Y gains admission to YY School, he is to be enrolled there and if not, he is to attend whichever school X is attending from Year 7 in 2026. Finally, he seeks that both parties be enrolled in and participate in the Tuning in Teens and the Circle of Security courses.

It should be noted that up until the day of closing submissions, the father’s proposal was for the children to spend no time with the mother for a period of two months and thereafter to spend professionally supervised time only for four hours each weekend with the mother on a final basis. As the father was pursuing an unacceptable risk case, this had a substantial effect on the course of the proceedings and the issues that were explored at length. These issues will still be discussed throughout this judgment as the Court needs to conduct its own risk assessment in relation to the children.
The mother’s proposal is contained in her Final Minute of Order (Exhibit R59). She seeks sole parental responsibility for the children and that the children live with her and spend time with the father from the conclusion of school on Friday until the commencement of school on Wednesday each alternate week (9/5 arrangement). In the school holidays, the mother proposes the children live with the parties for half of each school holiday period on an alternating basis and the parties be permitted to travel overseas with the children commencing 2024. She further seeks specific time provisions for Mother’s Day, Father’s Day and the children’s birthdays. She proposes that the father retain Y’s passport and the mother retain X’s passport. In relation to family therapy, the mother seeks orders that the parties commence family therapy with a female therapist from ZZ Psychology, Suburb AB, as nominated by her but she be permitted not to participate in therapy in the presence of the father unless she agrees to do so. If the mother relocates to the catchment area for enrolment at QQ School (as she has), X is to be enrolled to commence in Term 1 2024. If the mother does not relocate, X is to be enrolled at XX School. Finally, she seeks orders that the parties cease X’s attendance upon Ms DD for counselling and facilitate her attendance upon another female counsellor. Whilst the mother’s case also commenced as one where there was an unacceptable risk of abuse to the children in the father’s unsupervised care, her proposal also changed to reflect the evidence as it was presented and tested.
During final submissions the mother’s counsel conceded that the only risk to the children in the father’s care is removal from the mother’s primary care, including the psychological damage that would entail and the physical risk to X if she runs away. Notwithstanding this, the mother’s allegations will still need to be carefully considered as it is relevant to her capacity to support the children’s relationship with the father, and her parental attitudes.
The Independent Children’s Lawyer’s proposal is contained in his Final Minute of Order (Exhibit ICL3). He proposes the father have sole parental responsibility for the children and the children live with the father and spend no time with the mother for a period of two months. Following the no contact period and conditional upon the mother commencing and continuing counselling, the mother is to spend graduating time with the children for a period of eight weeks up to four hours per week professionally supervised, then for a period of eight weeks from 9.00 am to 5.00 pm each alternate Sunday, then for a period of eight weeks from 9.00 am Saturday until 5.00 pm Sunday each alternate weekend, then for a period of 12 weeks from 3.00 pm or the conclusion of school on Friday until 9.00 am or the commencement of school on the following Monday each alternate weekend, and thereafter during school terms from 3.00 pm on Friday until 9.00 am the following Wednesday (9/5 arrangement) and half of each school holidays. He further seeks orders that X continue to attend upon Ms DD, Y continue to attend upon Ms FF and the mother seek a referral for treatment by Ms SS. Finally, he seeks orders that the parties enrol X at XX School.
The parties agree on several issues. The parties seem to agree generally that the children spend half of each school holidays with each parent. In the event the children return to the mother during any period in which they are otherwise to be in the care of the father, the mother will immediately contact the father and return them to him (and vice versa). Changeover is to occur at school or otherwise the party whose time is concluding is to deliver the children to the home of the party whose time is commencing. The parties are to communicate with each other by way of the Our Family Wizard application. The mother is restrained from communicating with the children when they are in the father’s care for the first 12 months (although the father has offered that the mother be allowed to text message once per day and telephone or video call once per week). The parties are to keep each other notified of the children’s illnesses, schooling information and residential addresses. The parties are to issue an Australian passport for the children and be permitted to travel overseas with the children. The mother will continue to attend upon her treating practitioners and the parties will commence family therapy. In the event Y gains entrance to AC School or AD School, the parties are to do all things to enrol him at that school. However, by way of email correspondence from the Independent Children’s Lawyer to my chambers on 25 October 2023, the Court has been informed that Y has not been offered a place in either school.
Several further concessions were made by the parties during closing submissions. The mother proposes that sole parental responsibility be given to the parent who has primary care of the children. Therefore, if the Court were to order that the children live primarily with the father or in equal time, she proposes that the father have sole parental responsibility for the children. Further, the mother conceded that if she is not given primary care, she will move out of the Suburb B property and move into the catchment area of QQ School. The father also proposes that he will attempt to move into the catchment area of QQ School if he is not living in the Suburb B property. It is noted that neither party specifically seeks an order for exclusive occupancy of the Suburb B property. However, as aforementioned, the mother has now moved into the catchment area of QQ School.
All parties understood that the Court is not bound by the proposals advanced by them.
THE ISSUES
The main issues for determination by the Court are as follows:
(a)Whether the children currently have a meaningful relationship with the father;
(b)Whether the mother is genuinely attempting to facilitate a meaningful relationship between the children and the father;
(c)The mother’s mental health;
(d)The mother’s allegation that the father has sexually abused her throughout a ten-year period;
(e)Whether the mother has genuinely recanted the allegation that the father has sexually abused X and if she has not, what effect that may have or is having on X;
(f)The mother’s allegation that the father has verbally abused and denigrated her and the children throughout the relationship;
(g)The mother’s enmeshment with X;
(h)Who the children should primarily live with;
(i)Whether X should continue to attend upon Ms DD; and
(j)Some issues ancillary to the above.
OVERVIEW OF THE CASES PRESENTED
It is instructive to identify and briefly discuss how the parties’ counsel presented and framed their cases by the time of closing submissions.
It is common ground that sole parental responsibility should be allocated to the parent with whom the children spend the most time.
Both the cases presented on behalf of the Independent Children’s Lawyer and the father are premised on the Court finding that the mother is unable to facilitate and encourage the children’s relationship with the father. Both cases emphasise that, consistent with the expert evidence, if the current arrangement remains in place with the children living with the mother and spending time with the father, the children will lose what relationship they have with the father. It is just a matter of time. Both cases are premised on the Court finding that the father presents no risk of harm to the children. It is implicit, if not explicit, in both cases that the real risk of harm to the children is from the mother (perhaps related to her mental health) who nonetheless remains a very important person in the lives of the children. They allege her relationship with the children is enmeshed. The mother unquestioningly accepted everything X told her, without reality testing, no matter how inherently improbable.
Both cases acknowledge that there is a risk that if X were ordered to live with the father, she would, consistent with history, run away. Both cases submitted that this is a manageable risk and that, in any event, the risk is to be assessed as less than the risk to the children of losing their relationship with the father.
The submissions made in both cases, but particularly in the father’s case, referred to the unexplained, and indeed inexplicable, paradox in the mother’s case. She makes very serious allegations about the father and the risk that he has (at least) historically presented to the children and the mother, which allegations were seemingly retracted during proceedings, but which are said to still have some relevance. All of this is in the context of the orders proposed by the mother that are inconsistent with the notion of any risk to the children.
Counsel for the mother formally acknowledged on her behalf that she neither seeks a positive finding in relation to the father engaging in sexually inappropriate behaviour with X, nor contends that he presents an unacceptable risk of sexual abuse to the children. Nonetheless, the mother was convinced at the cessation of the relationship in May 2021 that there had been inappropriate sexual contact. She now accepts that it is possible that no inappropriate sexual contact occurred between the father and X. Presently, the risk of harm to the children in the father’s care is the psychological damage that would result from removing the children from the mother’s primary care and the risk that the children, especially X, would run away. The children expressed strong views about spending time with the father which was influenced by their own experience of him as an angry person. Counsel submitted the mother has not influenced these views.
Counsel submitted that the mother’s previous views, including that the children had been abused by the father, were not fixed false beliefs because the mother had a reasonable basis for the views she formed and the concerns she had.
The Court observes that the mother was represented by an experienced family law counsel and an experienced family law Accredited Specialist solicitor. It was apparent to the Court that they embraced the challenges of running a case for the mother when her concerns and allegations developed a certain fluidity during the proceedings, no doubt, and not necessarily improperly, in response to the expert and other evidence presented before the Court. The mother’s proposal changed dramatically from no time with the father at the commencement of the proceedings, to substantial and significant unsupervised time by closing submissions. And yet, at the date of separation the father was such a risk to the children, and to herself, that she and the children had to unilaterally relocate from Sydney to Town G and the children spent no time with the father for four months. The risk was so great that when his time with the children commenced, it had to be supervised, and much later his time with the children became unsupervised but necessarily in the presence of the paternal grandparents. Now the mother proposes that the father have substantial and significant unsupervised time with them.
The mother’s legal representatives were palpably aware that their case theory needed to address these features of the mother’s case. The premise is that even though the mother made allegations and had concerns that had such a profound impact on the relationship of the children with the father, but which ultimately turned out to be wrong, this was explained, and implicitly justified, by the contention that she had a reasonable basis for those views and concerns.
The Court is troubled by this premise and rejects the same. Proceedings between parents about children are not like ordinary civil proceedings, even civil proceedings between parents. The Court is charged with the responsibility of making orders that are in the best interests of the children. The focus of Part VII of the Family Law Act 1975 (Cth) (“the Act”) is very much on the welfare and needs of the children, not primarily the welfare and needs of the parents. The focus on the acts and omissions, and the attitudes and capacities of parents, is often the lens through which the Court assesses the consequences of these things on the children. And yet implicit in the submission that the mother made allegations and maintained concerns about the risk of harm to the children, which had such a profound consequence on their relationship with the father, is that those consequences should be ignored or minimised because the mother reasonably held these beliefs.
The submission reflects a non-consequentialist approach to ascertaining the best interests of the children. Provided a parent has acted reasonably, the consequences on children of the reasonably held but wrong belief is largely irrelevant. The Court disagrees in the strongest terms. Even reasonably held but incorrect beliefs have potentially profound consequences on children that must be considered in determining what is in their best interests.
If it becomes necessary for the Court to adjudicate on whether the mother had a reasonable basis for the views that she formed or the concerns that she had, it makes no difference in this case to the potentially irreparable damage that has been caused to the children’s relationship with the father. In any event, there are two components necessary to establish a reasonably held belief. Firstly, there is the issue of whether the evidence supports a finding that it was objectively reasonable to believe something. Do the facts objectively support the mother’s wrongly held belief? Secondly, there is the issue of whether, for other reasons more personal to the mother, it was subjectively reasonable for her to hold such a belief, even though wrong.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)

Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Coercive control
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act. However, these words are not defined in the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ and Campton J in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
THE FATHER’S EVIDENCE
The father was cross-examined extensively for two full days during the June hearing dates. The Court found him to be evasive and defensive at times, on certain issues.
In Dr U’s first report and Dr V’s report, the experts conclude that several events described by the mother are her “delusions” and this forms the basis of their opinion that she suffers from a delusional disorder. However, several inconsistencies in the father’s responses to the experts about these events became apparent on cross-examination.
Dr V’s report explains that the mother’s belief that the father was “tracking and monitoring” her is likely a fixed false belief (line 1717). The expert expands upon this notion at line 773 of his report as follows and he highlights the sentence in yellow to indicate it is an example of the mother’s delusional beliefs:
[Ms Dansey] reported that “her ex-partner used a 3rd party to track her to her brother’s house and then informed her that they know where she was living. [Ms Dansey] (was) fearful that he will continue to track/monitor her”.
However, the father was taken to NSW police material during cross-examination which indicated he had received a photograph of the mother’s car at her brother’s house on the date of separation – a date that she alleges she fled from the house due to repeated abuse. When asked explicitly about this, he indicated he did not have a copy but conceded such a photograph was sent from the mother’s brother’s ex-wife (“Ms AE”) to the paternal grandmother. When the paternal grandmother was cross-examined about this, she said she asked Ms AE to request that a third party take and provide photos of the mother’s car. The paternal grandmother conceded that she did not know who the third party was, or whether they may have been a risk to the children and the mother, or how long that person was outside the house, and how many times the third party was outside the house.
If the mother had fled an abusive household (as was her perception and experience) and then was told that a photograph of her current location had been sent to the father, or observed a stranger taking photographs of her car, the Court finds the mother’s concern to be appropriate and her fear that the father would continue to track her to be valid. Indeed, the mother’s belief that the father may be “tracking and monitoring” her would not be a delusion. It is also clear the father neither disclosed to the Court nor the experts that he had received such a photograph. Even if it was not suggested to the father in cross-examination that he was complicit in the surveillance of the mother, the Court draws this inference. It is simply implausible that the paternal grandparents would undertake this surveillance on their own initiative. Nonetheless, the Court accepts a submission made by counsel for the Independent Children’s Lawyer to the effect that it was understandable that the father would seek to ascertain the location of the children after they suddenly disappeared with the mother. This in no ways justifies the surveillance that was undertaken. To the extent that the professional opinion of the experts that the mother was delusional depends on her belief that she was under surveillance, such opinion is not correctly founded.
Another example is when the mother told Dr U that the father told her that he had facial reconstruction surgery. Dr U’s first report describes this as an “outlandish claim” that raises concern about paranoid delusions and the mother’s capacity to reality test (pages 57–58). The father is recorded as laughing at the absurdity of the mother’s allegation and denying that his face had ever been reconstructed (paragraph 43). However, it became apparent during cross‑examination that the father had been assaulted by a group of “unknown males” and experienced injuries which required surgery on his face. In cross-examination, the father repeatedly asserted that he did tell Dr U that he previously been injured and required surgery on his face (Transcript 14 June 2023, p.37 lines 21–45). However, Dr U answered in cross‑examination that the father did not tell her he had had facial surgery and he did not tell her he had had any injuries to his head (Transcript 12 October 2023, p.39–46). This causes the Court concern as to the father’s credit.
Further, whilst a description that the father had “facial reconstruction” perhaps overstates what is known about the surgery, the mother’s belief cannot be described as a delusion in this context. A reasonable inference to draw is that the father purposely refrained from providing this information to Dr U, or including it in his affidavit, as it would further his case that the mother holds delusions. Both Dr U and Dr V acknowledged in cross-examination that they would have wanted to know about this during interview. Once again, to the extent that the experts based their opinion about the mother’s alleged delusion on the facial reconstruction issue, such opinions are not soundly based.
These issues are not only relevant to the mother’s mental health but also to the father’s credit.
The father was further cross-examined about updating evidence on 11 October 2023. On this occasion, he was frequently defensive and evasive until he was given a warning by the Court. A clear example of this is when he was cross-examined about X’s high school by the mother’s counsel. He was asked on multiple occasions whether he knew that the mother had put forward QQ School as her preferred option throughout 2022 and 2023. The father repeatedly evaded the question and responded that AF School was the agreed school despite counsel making it clear that that was not the question being asked (Transcript 11 October 2023, p.950 lines 19–46). Another example in relation to this topic is as follows:
You understand that the mother had researched the academic rankings of [QQ School] versus [XX School], your preferred choice of high school for [X]?---Yes. So – so this – this is where I said [X] and [Y] are very different.
Sure?---[Y] – [Y] is academically focused.
Did you understand the question, sir?---[X] is not.
Did you understand the question?---I’m trying to answer the question.
I have asked you did you understand that the mother had performed research into the rankings for the two preferred choices of high school? Did you understand that was the case?---Yes.
(Transcript 11 October 2023, p.961 lines 5–18)
THE MOTHER’S EVIDENCE
The mother was also cross-examined extensively over several days. Throughout the June hearing dates, the Court found her to be a poor witness but the reason for this must be examined. Her evidence was often plagued by non-responsiveness or delays before answering. The mother also often requested that counsel “simplify the question” when the question seemed prima facie simple and the inference was available that she did not wish to answer. It is clear the single experts formed similar impressions of the mother upon interview.
Dr U states “Her speech was slow, and she frequently paused before responding” (Dr U’s first report at paragraph 64). Dr V reports as follows:
Thought form was linear mostly, however there was intermittent evidence of formal thought disorder. There were long pauses (latency) when asked open questions or questions about the father. She eventually said, “I am better off with direct (closed) questions”. When asked about her allegations of abuse from the father, she paused at great length, made moaning or groaning sounds and looked away. At these times, she presented as thought blocked with a blunt affect. Outside of those periods, her speech was fluent and not pressured.
(Dr V’s report at page 33)
In cross-examination, Dr V explained that latency refers to a prolonged pause of more than 10 seconds between a question by an interviewer and an answer by the individual and is most prevalent in psychotic disorders including delusional disorder. The expert gave evidence that the mother’s pausing was for much more than 10 seconds.
The Court’s impression of the mother’s evidence is that her delays before answering were not more than 10 seconds. This may indicate an improvement in her mental health since the interviews with Dr V took place, in line with the evidence of her treating mental practitioners. Alternatively, if the delays cannot be explained by her poor mental health, it could be an indication of defensiveness and non-responsiveness. The Court also did not observe the mother making any moaning or groaning sounds but did observe her to look away or appear as thought blocked at times.
The mother’s treating psychologist, Ms S, gave evidence in relation to this. Her report dated 8 April 2022 states that the mother becomes distressed and freezes when talking in detail about her traumatic experiences. When cross-examined about this, Ms S explained that the mother’s “freezing” is different to latency as it is a trauma response and the mother’s nervous system is putting her into “fight or flight” when asked about traumatic experiences (Transcript 3 October 2023, p.712). Ms S shared that in the beginning of therapy, the mother would often “freeze” or disassociate when speaking about traumatic incidents. However, through frequent therapy, especially leading up to the final hearing, Ms S was able to work with the mother to improve her mental state in order for her to be present in Court when answering questions about her trauma (Transcript 3 October 2023, p.735 lines 37–41).

The Court has considered the question of whether Dr U, in the context of her second report which did not involve an interview of the mother, had a basis for reaching the conclusion that she has. If not, of course, her opinion would be inadmissible. The Court has concluded, however, that there was a legitimate basis on which to establish the professional opinion of Dr U. Dr U was entitled to rely on her interview with the mother in the context of the previous report, as well as the material before her for the purposes of the second report, to reach the conclusion that she did. The issue of X’s enmeshment was within the scope of her instructions. Even if this were not the case, the totality of the evidence is consistent with the conclusion that Dr U reaches.
The father relies on Exhibit A8, being the text messages between X and the mother, as evidence of enmeshment between them. Counsel for the father argues the mother excessively tells X “I love you” when she is in the father’s care and relies particularly on pages 4–5 as evidence of X’s distress when the mother did not respond within three minutes.
In Exhibit ICL2, the mother tells Ms DD in early 2023 that “[X] texts her every day that she’s not with her” and that “[X] sent a text to a friend saying that her Dad is the devil”. She furthers that “[X] is really distressed that she’s not getting one on one time with her”. Two weeks later, X states that “her Mum told her Dad was nice before they married. Then he became mean” and “he treated Mum so wrong…Mum tried to talk to Dad but he wouldn’t listen”. In the same session, X is recorded as being on her phone during the appointment and said that she was texting the mother because the mother would be going to sleep soon. Given the Court’s concerns about the mother’s credibility, it rejects the mother’s evidence that she did not know that X was with Ms DD.
The mother was cross-examined about this (Transcript of 22 June 2023, p.86 line 30)
She knows you love her, doesn’t she?---Yes.
Do you need to keep reminding her?---Yes.
You do. You don’t think it builds in her some further anxiety?---I can only go on my experience, and when my mum told me that she loved me, it made me feel really good, so I do the same for my children.
The evidence above needs to be considered in the context of other events. The notes of Ms S refers to X describing the mother’s relationship with her in intense terms, compared to the father. The mother’s reaction in the car after X disclosed violence to Ms DD is also another example of an intense relationship. The Court accepts the evidence of Dr U, and the submission in the father’s case, that the mother’s relationship with X is an enmeshed one, or at the very least has enmeshed aspects of it. In practical terms this means that X reflects, and possibly even repeats, her mother’s emotions and words. Therefore, the period of no contact is necessary in not only rebuilding the relationship with the father but breaking the enmeshed relationship with the mother.
Financial Control
The mother contends the father was financially controlling and coercive throughout the relationship. From paragraph 184 of her affidavit, she details how she has never shared a joint bank account with the father. She describes that her income went into a bank account in the father’s sole name and the parties purchased three properties throughout the marriage but they were all purchased in the father’s sole name. In relation to this, the father contends this was an agreed arrangement for the purposes of tax planning.
In Dr U’s first report at paragraph 37, she states:
He similarly denied that there were any issues regarding financial control. Indeed, he claimed that all the money was paid into their joint account and suggested that anyone could look at the credit cards.
The father was questioned about this and the transcript is copied below:
There were periods of time when the mother was working in various jobs, wasn’t there?---Yes.
And she didn’t have her own bank account with her own earnings coming into it?---We had a shared bank account.
Well, when you say shared, to be very clear, the bank account was in your name, wasn’t it?---The account itself was. Yes.
(Transcript 15 June 2023, p.131 lines 40–47)
It’s clear from cross-examination that the money, including the mother’s earnings, was not being paid into a joint account, it was being paid into an account in the father’s sole name that the mother had access to. Further, the father agreed in cross-examination that the parties had four properties over the course of their 14-year marriage and all four were in the father’s sole name, although one was already in his name at the commencement of the relationship. When asked whether the mother asked to go on title, the father responded, “We discussed and no, it’s not what we agreed”.
The onus was on the mother to convince the Court that the father’s behaviour amounts to financial control, but this issue was not addressed by her counsel (or any counsel) in closing submissions. The mother has not made out her case. The Court’s impression is that the parties were engaging in sound tax planning in the form of negative-gearing as the father was a highly paid public servant whereas the mother was not working.
Y’s Self-Harm
Both parties depose to Y displaying self-harming behaviours. Y has also threatened to kill himself. Material from the Department of Communities and Justice also reveals Y was said to be self-harming and had told people that he would kill himself.
At paragraph 560 of his trial affidavit, the father says that in early 2022, X reported to him that Y had tried to kill himself with a knife that day. He further disclosed in cross-examination:
Pardon?---[…] I saw him, kind of, do this. And then there was another incident where we were playing cards and he dived under the bed and started banging on the bed.
Banging what on the bed?---Banging his head on the bed. And he was calling out, “I’m banging my head, I’m banging my head”.
What did you do about that?---I laid down on the floor next to him; coaxed him out of the bed; settled him down, and then I read to him, put him into bed, and he settled down and he was fine, went to sleep.
When the mother was cross-examined, she says she sought assistance in the form of a counsellor when Y started exhibiting these behaviours.
Dr U says in her first report (when she actually met Y) that none of the treatment providers (Y's doctor and psychologist) raise concern about Y being suicidal or self-harming.
It is clear Y has been exposed to parental conflict during these proceedings. However, both the mother and the father appear to be reacting appropriately and protectively in instances of Y’s self-harm. The parents would do well to better protect Y from their conflict in order for his mental wellbeing to improve.
SECTION 60CC PRIMARY AND ADDITIONAL CONSIDERATIONS
Meaningful Relationship
The mother has always been the primary carer for the children, and it is clear they have a meaningful relationship with her. The Court has unfortunately determined that the children do not currently have a meaningful relationship with the father. However, the mother’s proposal for time implies she is supportive of a meaningful relationship being recreated between the children and the father.
Risk Of Harm
In relation to the mother, the Court has found that the nuances of her behaviour and belief that the father remains a risk of harm negatively affects the children’s views of the father and there is a risk that the children will permanently lose the opportunity to have a meaningful relationship with him. Further, the Court has found that X is likely enmeshed with the mother. Despite the Court making findings that it is not likely the mother suffers from a delusional disorder, there are still ongoing concerns about the mother’s mental health and her understanding of appropriate parenting.
In relation to the father, the Court has found that he has likely engaged in verbal abuse and denigration throughout the relationship and lacks insight in respect of this. This is further exacerbated by the fact that he is seeking primary care of the children, something he has never had prior experience in, and has chosen not to complete any parenting courses or further his education. It is noted that the father now seeks orders that the parties be enrolled in and participate in Tuning in Teens and Circle of Security courses.
However, implicit in the final proposals of all parties is that there is no ongoing risk to the children of harm due to abuse, neglect, alienation or family violence. They both seek that the children spend significant and substantial time (whether or not it is graduated) with the other parent. The Independent Children’s Lawyer seeks that the children spend significant and substantial time with both parents. Implicit in the proposals of the parties is that there is not currently operative risk of harm to the children. In reality, and as discussed in these reasons, the risk profile is more subtle, but real, especially as regards X running away from her father.
The Children’s Views
The children’s views have been extensively traversed. X has been overly empowered throughout these proceedings. Limited weight will be placed on the children’s views.
Nature Of The Relationships Of The Children
The children enjoy a close relationship with each other. There can be no suggestion about separating these children. Both parents are aware of the closeness and the issues of X playing a parentified role for Y. In Exhibit ICL2, X told Ms DD that she feels “9/10 responsible for [Y]” because he feels “very bad about the separation” in early 2023. In late 2023, X is recorded as saying that when her parents were arguing, she felt “like the only responsible one there” and “she had to look after [Y]”. Further, Dr U interviewed Ms DD for the purposes of her second report. At paragraph 43, the report states X disclosed she feels she has a “full time job parenting [Y]” and they have spoken about reducing this to a part time job. This is very concerning. Both parties are aware of this issue. They need to work together to prevent further parentification of X.
As aforementioned, the children previously had a good relationship with the paternal grandparents. It is hoped that with the resolution of these proceedings, this relationship will be restored.
Opportunity To Participate In Making Decisions
The mother has made allegations that the father was not involved in caring for the children or making decisions about their major issues and the father alleges he was heavily involved in the children’s care (page 63 of Dr U’s first report). However, both parents conceded that the paternal grandparents have played a significant caring role in the children’s lives. Dr U concludes that the children’s close and loving relationship with the father (at the time of the first report) suggests the father has played an important parenting role in their lives and the children suffered an attachment loss when they were withheld.
Further, when the children were withheld from the father, he took significant steps to communicate with them, agree to supervision on a without admissions basis when false allegations were made against him and pay for formal supervision when it was requested. The father has taken all opportunities to participate in making decisions in relation to the children.
Parental trust is low and there is very little communication between the parties. All parties agree that sole parental responsibility should be given to one parent in this case. Once orders are made, and this litigation is finalised, the Court does not see this issue being relevant.
Likely Effect Of Change
The Court accepts that if an order is made for the children to live primarily with the father, it will be a very substantial change in their lives. For the children, the mother’s household is the known. The children have been living in the primary care of the mother their whole life. Prior to separation, the division of roles were such that the father worked full-time, and the mother was responsible for the children and maintaining the home. After separation, the children lived in the mother’s primary care in Town G and the Suburb B property, then under supervision in the Suburb B property. The father’s household is the unknown. He has never taken care of the children overnight on his own, by virtue of orders being in place that any overnight time needs to be in the paternal grandparents’ home. There is limited evidence before the Court about how he will cope with the practicalities of being a primary carer, and especially the issue of X running away. However, if the father takes the children away on holidays during the no contact period, this might mitigate the risk of X running away. If the effect of orders for the children to live with the father is that they remain in the family home, and he moves back in, this is a mitigating factor as regards change for the children.
Practical Difficulty and Expense
The mother now lives in Suburb UU and the father is either residing in Suburb GG or in Suburb B. There does not appear to be any practical difficulty and/or expense to be considered in relation to the mother’s home. If the father resides in the Suburb B property, X will either need to be driven to QQ School (25–30 minutes) or take public transport (45–60 minutes) or a mixture of both.
Parental Capacity
The Court finds that the father is able to provide for the children’s needs and they are not at risk of harm in his care. The Court has made several findings in relation to issues affecting the mother’s parental capacity, including her mental health issues, ability to reality test and enmeshment with X. The mother will need to continue with appropriate therapeutic interventions to improve her insight on this issue.
Maturity, Sex, Lifestyle and Background
In relation to the background, this family has experienced a multitude of issues that has placed immense stress on all members of this family, including the grandparents. No issues have been identified in relation to the maturity, sex and lifestyle of the parties.
Parental Attitudes
The mother unilaterally relocated with the children to Town G in 2021 after making allegations that the father had sexually abused X. Since then, the parties have come a long way in restoring their relationship. The father was able to put aside the allegations that were made against him and prioritise the children’s needs. The mother will need to continue to improve her attitude to parenting.
Family Violence Allegations
Findings have been made on each allegation that has been made in these proceedings.
Order Least Likely to Lead to Further Proceedings
There is the risk of appeal in this case. There is the risk of contravention and/or other enforcement proceedings. The financial proceedings remain on foot. The Court hopes that the parental conflict will abate on conclusion of the proceedings.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN
Live With Arrangements
For the reasons set out above, based on the totality of the evidence, the Court concludes that the children should live with the father. There is less long-term risk to them in his care. The father presents as more likely to support the children’s relationship with the mother, than the mother is as regards the father. In a case that is beset with complex issues and uncertainty, an order for the children to live with the father is the least-worst option. It will not be easy, particularly in the first few months.
The Court has already determined that there should be a no contact period between the children and the mother based on the expert evidence. The injunctions sought by the father during this no contact period, including that the mother is restrained from approaching, communicating or attending the school or attending any venue or location of extracurricular or social activities that the children are participating in, will be made. It is noted that the mother proposes similar restraints against herself for when the children are living with the father. The father further proposes that twice per week on Wednesday and Sundays, the father will facilitate a five minute telephone or video call between the children and the mother. Dr U gave evidence that it is important for the mother to reassure the children that she is doing fine. The Court has some reservations as to whether the mother will use these telephone conversations solely for the purpose of reassurance as contemplated by Dr U. It may be difficult for her to do so, especially during the no contact period. The importance of this telephone communication is recognised, even during the no contact period. This order will be made, but only once weekly unless the father otherwise determines. As it turns out the no contact period will coincide with Christmas Day 2023 and thus a further telephone call will be permitted on that day.
The Court now has several options available. The Court can order a no contact period of either 30 days (as sought by the father) or 60 days (as sought by the Independent Children’s Lawyer). As these orders will be made either shortly before, or to coincide with, the commencement of the December/January school holiday period, the Court will order that, in effect, the no contact period coincide with the school holiday time. The children’s time with their mother will resume from the commencement of Term 1 2024.
The Court believes that the six weeks of the holidays provides the opportunity for the children to spend quality time with the father. Indeed, through his counsel the father communicated his willingness to perhaps take the children away during this period, not just to recalibrate their relationship with him, both the father and the person with whom they will primarily live, but also to have a break from and recalibrate their relationship with the mother.
This is a case where all the Court can aspire to is making an order where there is the least risk to the children. On the facts, and in the difficult circumstances of this case, the Court is satisfied that there will be the least risk to the children if they live with the father. There is no doubt about his commitment to, and capacity for, supporting the children’s relationship with the mother, despite their toxic relationship, these acrimonious proceedings, and the false allegations that she has made against him. The Court has far greater reservations about the mother’s willingness and capacity to support the children’s relationship with the father.
The risk of X running away has been identified and discussed. The orders proposed by all parties seem to address ways of mitigating and managing this risk but the Court accepts that it is not possible to eliminate the risk.
In relation to parental responsibility, the father seeks sole parental responsibility for the children. The Independent Children’s Lawyer seeks that the father have sole parental responsibility. The mother also sought sole parental responsibility but conceded that the parent that has primary care of the children should have sole parental responsibility. She further sought that if equal time is ordered, sole parental responsibility be given to one parent. Therefore, in the circumstances of the live with arrangement that has been determined, it is common ground that the father should have sole parental responsibility of the children.
Spend Time With Arrangements
In relation to spends time with arrangements, the parties both sought that the children spend time with the other from the conclusion of school on Friday until the commencement of school on Wednesday on each alternate week. The Independent Children’s Lawyer sought orders that the children spend time with the mother in a graduated arrangement beginning with professionally supervised time but culminating in the same proposal sought by the father. However, counsel for the Independent Children’s Lawyer conceded that he could not be heard against the father’s proposal. Therefore, orders will be made that the children spend time with the mother in accordance with the father’s proposal.

The father further sought orders that from the date of Y commencing Year 7 (2026) and thereafter, the children live with the parents in an equal time arrangement with changeover occurring on Friday after school. Counsel for the father submitted that Dr U gave evidence in relation to a sequential enlivening of orders graduating to equal time if the mother has reached certain milestones. However, orders must be made on a final basis so it was submitted that the father has done the best he can to estimate the timeline. The Independent Children’s Lawyer stated he could not be heard against this. The Court supports this. After therapeutic interventions have been ongoing for two years, it is the Court’s hope and belief that the children’s relationship with the father will be restored, and the parental communication will have improved. It is in the best interests of the children that on a long-term basis, they live in a week about arrangement with both parents, noting that sole parental responsibility will remain with the father.
School Holidays
The mother seeks orders that the children spend half of each school holiday period with the parties. The father seeks the same orders, save that it only begins when Y commences Year 7. Presumably, this means he is proposing that the 5/9 arrangement continue throughout the school holidays until 2026. The Court is of the view that this is appropriate.
Special Occasion Time
Both parties seek specific orders for special occasion time. The father seeks orders in relation to Christmas from 2024 (noting Christmas 2023 will fall within the no contact period). The mother seeks orders in relation to Mother’s Day, Father’s Day, and the children’s birthdays. Neither party objected to the other’s orders and they are largely uncontroversial. The Court will make these orders.
Schooling
In relation to X’s schooling, the Court sought clarification on each of the parties’ positions following the mother’s relocation into the catchment area of QQ School. The parties’ joint response became Exhibit CB. The father’s position remains that X be enrolled at QQ School if he is residing in the catchment area, or she be enrolled at WW School if he is residing in the catchment area of that school, or, in the event he is not residing in either of those catchment areas, she be enrolled at XX School. The mother has moved into the catchment area of QQ School and her position remains that X be enrolled there. The Independent Children’s Lawyer seeks that X be enrolled at XX School.
It is an undisputed fact that X particularly enjoys an extracurricular activity. The father gave evidence that during the period of time X did not want to be spending time with him, she still asked him to take her to that activity and they had a good day together (Transcript 11 October 2023, p.945 lines 0–6).
QQ School has a focus on that particular activity and it is undisputed that X wants to attend that school, although the father alleges this is due to unnecessary influence by the mother. Whether or not this is true, it is clear X wants to attend that school and probably has an expectation that she will be attending the school since the mother has relocated to the catchment area.
It can only be beneficial to the father and easier for him to transition X into his primary care if she is happy. She will clearly be happier attending QQ School. Further, there is a tacit acceptance on his part that QQ School is a good school for X given it is his primary position if he is able to relocate there. On the other hand, if orders are made that X does not attend QQ School, it is likely she will blame the father for this and it will be more difficult for him to transition her into his primary care.
The Court has considered the risk that if X attends QQ School, that with the mother having moved to the catchment area of the school, it will make it easier for X to run away from school to the mother’s home, instead of returning to the father’s home. The Court remains convinced about the benefits to X of attending QQ School in circumstances where the Court has found the father appears to, at least tacitly, support the same. The risk of X running away is also managed by the orders the Court makes.
The order will be made that X attend QQ School. It is up to the father whether he relocates to the Suburb B property, the catchment area of QQ School or whether he remains residing in Suburb GG.
Whether X should continue to attend upon Ms DD
Ms DD is a psychologist engaged by the parties to provide counselling for X since early 2023. The mother seeks an order that X cease her attendance on Ms DD for counselling and instead attend upon another female counsellor. The mother’s case for this appears to be twofold: (1) Ms DD is biased against her and appears to hold the view that the mother actively undermines the father to X and (2) X does not like Ms DD and no longer wishes to see her. The Court is not surprised by the mother’s views in this regard. Her views are consistent with the attitudes that the Court finds she has manifested, particularly as regards to the importance of X’s relationship with the father. There is no evidence to support the contention that Ms DD is biased against the mother. The evidence about X not liking Ms DD comes primarily from the mother and is inherently unreliable because of that. In any event one of the deep concerns that the Court has about the mother’s relationship with X is that she (directly or indirectly, inadvertently or inadvertently) has inappropriately empowered her to make decisions about her life. To accede to X’s purported objections to Ms DD would be to further inappropriately empower her.
There is a benefit to Ms DD remaining as X’s counsellor. She knows the family history. This advantage might mean that she is better equipped to deal with X’s reaction to the changes happening around her.
Whilst the orders will provide that this therapeutic relationship should continue to be supported, the Court accepts that this decision in future is best made by the person with whom X will primarily live, that is, the father. The need for X to be therapeutically supported is not in issue. As part of the father’s sole parental responsibility, in future he may be able to decide who X receives therapy from, but not whether she receives that therapeutic support.
Family Therapy and the Mother’s Therapy
The parties agree that they should participate in non-reportable family therapy. It appears previous attempts at family therapy were not successful as the father sought that it be reportable and the mother sought that it be non-reportable. However, given these proceedings will be finalised, all parties now agree it should be non-reportable.
The father seeks orders that the family therapist be either Ms SS, Ms TT or such other family therapist that may be agreed. The mother seeks that the family therapist be such female person agreed between the parties and failing agreement, a female practitioner from ZZ Psychology, Suburb AB, nominated by the mother. The Independent Children’s Lawyer did not seek an order for family therapy but stated they could not be heard against it. However, they sought orders that the mother seek a referral for her own counselling/treatment by Ms SS.
The Independent Children’s Lawyer seems to have misunderstood Dr U’s evidence when recommending Ms SS as the mother’s therapist. Dr U gave evidence that the mother should continue to have her own counselling but determined that her current treating clinicians would not be able to target the current issues as Ms S is not specialised in family law. She recommended treatment along the lines of “psychoeducation, an understanding about what is happening with the children and their resist/refuse dynamics” by a family therapist with significant experience in family law. She suggested the family therapist should see the mother during the no-contact time and then she could start to see the rest of the family for family therapy work afterwards.
Orders largely in line with the father’s proposal will be made but adopting Dr U’s suggestion of having the family therapist see the mother exclusively during the no-contact period (if that is logistically possible at this time of year). The mother sought an order that she not be required to participate in family therapy in the presence of the father unless she agrees to do so. It is the Court’s view that the family therapist is the most appropriate person to determine how the therapy is conducted. This is not a justiciable issue. The family therapist should be provided with a copy of these reasons and the costs should be equally shared between the parties.
The father and the Independent Children’s Lawyer propose the mother should commence individual therapy with another practitioner, as well as continuing to attend upon her treating practitioners, Ms S and Dr T. Given she is already seeing an experienced psychologist and psychiatrist (who is specialised in family law), the Court does not think this is necessary. The mother will be receiving psychoeducation on appropriate parenting from the family therapist. This order will not be made.
Other
The father seeks an order that the Independent Children’s Lawyer and Ms DD meet with the children to explain the effect of these orders. It is noted that this order was made when the interim orders were made as well. From Ms DD’s notes, it appears this was relatively successful. This order will be made.
The parties propose similar ancillary orders in relation to mutual restraints against denigrating the other parent, physically disciplining the children or involving them in adult issues and notifying the other parent of any medical and schooling information and changes in residential or contact information. These orders will be made.
The father seeks an order that Y continue to attend upon Ms FF for such duration and frequencies as recommended by her. The mother does not seek any orders in relation to this. This is appropriate given Y’s mental health vulnerabilities. This order will be made.
The parties are agreed that if changeover is not occurring at the children’s school, the party whose time is concluding shall deliver the children to the home of the party whose time is commencing. The parties are also agreed that they will continue to communicate with each other via the Our Family Wizard application.
The mother seeks orders that the parties be at liberty to take the children out of Australia to travel with not less than 56 days written notice and specific orders for an itinerary and contact details to be provided not less than 28 days prior to the departure date. The father does not seek specific orders in relation to this but seeks that passports be obtained for the children. Both of the parties’ orders in relation to passports and travel will be made. The Court believes, however, that overseas travel with the mother would be problematic before equal time commences, and thus the order will be limited in this regard. The father seeks that he retain both passports and the mother seeks that the parents hold one passport each. In line with orders that the father hold sole parental responsibility, the Court will order that the father retain both passports.
The father seeks, if the parties have not already done so, for the parties to enrol and participate in the Tuning into Teens course and the Circle of Security course. Whilst this proposal comes very late in the proceedings, and is arguably overdue, it is nonetheless a good idea and the Court will make such an order.

I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 13 December 2023

File number(s):	SYC 3614 of 2021
Judgment of:	ALTOBELLI J
Date of judgment:	13 December 2023
Catchwords:	FAMILY LAW – PARENTING – Final – Where previous allegations of sexual abuse have been made against the father in relation to one of the children – Where the mother alleges she has been sexually abused by the father throughout a ten-year period – Where the single expert psychiatrist diagnoses the mother with a delusional disorder – Where the mother’s treating psychiatrist diagnoses her with post-traumatic stress disorder as a result of the sexual abuse in the marriage – Where the father alleges one of the children is enmeshed with the mother – Whether the mother can genuinely facilitate a meaningful relationship between the children and the father – Where both parties seek primary care of the children – Schooling issues – Family therapy – It is ordered the children live with the father and spend significant and substantial time with the mother.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 61DA, 65DAA, 60CC
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Carter & Wilson [2023] FedCFamC1A 9 Dansey & Dansey (No 3) [2023] FedCFamC1F 592 F v M [2021] EWFC 4 Helbig & Rowe and Ors [2016] FamCAFC 117 Illgen & Yike [2018] FamCA 17 M v M (1988) 166 CLR 69; [1988] HCA 68 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Ramzi & Moussa [2022] FedCFamC2F 1473 WK v SR (1997) FLC 92-787; [1997] FamCA 57
Division:	Division 1 First Instance
Number of paragraphs:	268
Date of last submission/s:	13 October 2023
Date of hearing:	14–16, 22–23, 26–27 June 2023, 3–5, 11–13 October 2023
Place:	Sydney
Counsel for the Applicant:	Mr Sansom SC
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Respondent:	Ms Lawson
Solicitor for the Respondent:	Burgess Family Law
Counsel for the Independent Children's Lawyer:	Mr Kelly
Solicitor for the Independent Children's Lawyer:	G & D Lawyers

SYC 3614 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DANSEY Applicant
AND:	MS DANSEY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	13 DECEMBER 2023