Dansey & Dansey (No 6) - [2024] FedCFamC1F 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dansey & Dansey (No 6) [2024] FedCFamC1F 165

File number(s): SYC 3614 of 2021

Judgment of: ALTOBELLI J

Date of judgment: 19 March 2024

Catchwords: FAMILY LAW – Interim parenting – Where final orders were made in December 2023 – Significant change in circumstances – Where the final orders are clearly not working for the subject children – Where the older child is self-presenting to the police station – It is ordered that time be suspended between the children and the mother for a fixed period.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 69ZW

Cases cited:
Acheson & Begbie [2023] FedCFamC1A 240

Dickens & Dickens [2016] FamCA 11

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Horner & Horner [2018] FamCA 487

Marsden & Winch (2009) 42 FamLR 1; [2009] FamCAFC 152

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

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56

Division: Division 1 First Instance

Number of paragraphs: 97

Date of hearing: 7 March 2024

Place: Sydney

Counsel for the Applicant: Ms Vohra SC

Solicitor for the Applicant: Pearson Emerson Lawyers

The Respondent: Litigant in person

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:

19 MARCH 2024

THE COURT ORDERS THAT:
1.Orders 6, 7, 13, 14, and 22 made on 13 December 2023 be suspended until 14 August 2024.
2.The children are to live with the applicant father (“the father”) and spend no time with the respondent mother (“the mother”) until 14 August 2024.
3.From 7 April 2024, the father shall facilitate a five-minute telephone or video call with each child (ten minutes in total) and the mother once weekly on Sundays between 6.00 pm and 7.00 pm or at any other times as may be agreed between the parties.
4.The father’s Fourth Amended Initiating Application filed 5 March 2024 is listed for mention on 25 June 2024 at 9.00 am.
5.The Independent Children’s Lawyer has leave to relist the matter on seven days’ notice.

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 further interim orders that the Court has made in this complex parenting dispute between the applicant father (“the father”) and the respondent mother (“the mother”) in the best interests of two children, X aged 12 and Y aged 10 (“the children”).
BACKGROUND
The parenting aspect of this matter proceeded for final hearing for 14 days before me last year on 14–16, 22–23, 26–27 June 2023 and 3–5, 11–13 October 2023. Final orders were made on 13 December 2023 (“the final orders”) accompanied by extensive reasons for judgment (“my final reasons for judgment”). They provide for the father to have sole parental responsibility for the children and for the children to have no contact with the mother until 2 February 2024 (a period of approximately seven weeks). Thereafter, the final orders provide for the children to live with the father and spend time with the mother each alternate weekend from after school on Friday until the commencement of school on Wednesday. The spend time arrangements were to graduate to a week about arrangement in 2026.
My final reasons for judgment made several relevant findings in relation to the parties to these proceedings. At [13] of my final reasons for judgment I noted that it was an undisputed fact that X does not hold, and has never held, a belief that she has been sexually abused by the father. I further noted that throughout the history of these proceedings, the mother made allegations in respect of sexual abuse and/or grooming of X but withdrew those allegations upon “reflection”. At [113], the Court found that a meaningful relationship between the children and the father did not exist at the time of the orders but the necessary preconditions of one existed based on the children’s historical views and experiences of the father and the paternal family. I traversed my concerns at [135] that whilst the mother outwardly encouraged X’s relationship with the father, it was clear that the mother still believed, to some extent, that the father was a risk of harm to the children. In that context, it was difficult to see how the mother could truly encourage and facilitate a meaningful relationship in light of such a belief. Therefore, the Court concluded that a period of no contact between the children and the mother was necessary in order to rebuild the relationship between the children and the father.
The Court was presented with conflicting expert evidence in relation to the mother’s mental health. I ultimately determined that it was unlikely that the mother suffered from a delusional diagnosis and was instead exhibiting symptomology due to her PTSD (at [159]). In relation to the allegations of sexual abuse that the mother made against the father, the Court found that the mother had failed to discharge the onus of satisfying the civil standard of proof for a positive finding to be made that she had been sexually abused (at [175]). There was no unacceptable risk of abuse arising from X spending time with the father. However, the Court found at [202] that it was likely the father had anger issues to the extent that the children witnessed the father yelling at the mother and held some concern about his lack of insight into his behaviour.
In relation to X, the Court also held concerns in relation to X’s enmeshment with the mother and therefore found the period of no contact to be necessary (at [210]). In relation to the issue of X running away, the Court attempted to balance the physical risk to X, who had a propensity to run away, with the risk that she will not have a relationship with the father. The Court stated at [101]:
The father submitted that he has managed the issue of [X] running away as well as he could. Both parties are motivated to overcome this problem and he submitted that that should be enough to manage the situation if it arises again. The Court is not convinced that this is enough to manage the situation but accepts that both parties are motivated to overcome the problem. None of the parties have been able to suggest a better solution other than to agree to an order that if [X] returns to a parent when she is to be spending time with the other parent, she is to be returned. This order will be made.
(Emphasis added)
Since the final orders were made, the father alleges the period of no contact proceeded without major issue and the first weekend the children spent with the mother was from 2–7 February 2024. The children were due to return to the father’s care after school on 7 February 2024. However, during the period between 7–14 February 2024, X resisted returning to the father by continuously running away to a police station, refusing to go home with the father, and being released into the mother’s care. During this time, X made serious allegations against the father to the police, the Department of Communities and Justice (“the DCJ”) and medical professionals, resulting in a provisional Apprehended Domestic Violence Order (“ADVO”) being made against him.
As a consequence, the father filed an Application in a Proceeding on 15 February 2024 to suspend time between the children and the mother and it was urgently listed before me on 16 February 2024. Given how urgently it was listed, the mother had not yet filed any response documents. On that day, I made an urgent interim order suspending contact between the children and the mother pending further order, directed the mother to file response material and listed the matter for interim hearing on 7 March 2024 (“the interim orders”) accompanied by short reasons for judgment (“the interim reasons for judgment”).
As the material below will illustrate more fulsomely, on 16 February 2024 I had concerns arising from some of the documents made available to the Court pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”). I referred to police records from 14 February 2024 relating to the police attending the mother’s home in response to her missing person report in relation to X. When the police entered X’s bedroom, they found her “concealed beneath the bed covers”. A further issue was that the record in question also recorded police concerns about the level of cooperation the mother was providing to them. Regrettably, that part of the COPS entry was not read onto the record but will be referred to below. I was concerned that the mother had not told me about this event, even though it occurred less than 48 hours before the Court event. My focus was on risk management. Senior counsel for the father had submitted that the events preceding 16 February 2024 were, in fact, merely the repeat of a pattern of previous events. I assessed the emotional and physical risk to X of being returned to the father’s care, against the risk to X of losing her relationship with the father, and ultimately concluded that the final orders I had made on 13 December 2023 should be suspended. As I had concerns about the mother’s agency in the events that led to the matter coming back to the Court, I temporarily suspended her time with the children.
The father was represented by senior counsel on 16 February 2024 and 7 March 2024. The mother represented herself on both occasions. She was clearly stressed but she also presented her arguments articulately and intelligently. At times she requested brief adjournments or moments to collect herself and I granted her leave to do so.
COMPETING PROPOSALS
The father proposes that the matter be relisted for final hearing for two days (where he will ultimately seek that the final orders be discharged and the children spend time with the mother supervised for six hours on the first Sunday of every second month). He seeks that the mother’s time with the children remains suspended until his final application is determined. He otherwise seeks that the mother’s interim orders be dismissed.
The mother seeks orders that I recuse myself from these proceedings and a different Independent Children’s Lawyer be appointed. She proposes that the interim orders made on 16 February 2024 be discharged and the final orders be reinstated on the basis that there is no significant change in circumstances pursuant to Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). She further seeks make-up time for the time the children would have spent with her in the period that time was suspended. She proposes that the father be responsible for paying all costs related to the children’s counselling, medical and education expenses whilst they are in his care. In relation to the final orders, she seeks amendments such that her phone calls with the children be for five minutes per child, the maternal family be allowed to communicate with the children whilst they are in the father's care and be allowed to see the children when they visit Sydney for a period of four hours per day.
The Independent Children’s Lawyer supports the father’s position that time between the children and the mother remain suspended and the Court adjourn the father’s application for a period of “some months” with the hope that X’s relationship with the father is strengthened. He proposes that the mother continue to have a weekly phone call with the children in line with her suggestion of five minutes per child. He hopes that instead of reopening the matter in its entirety, the adjournment may allow for a “reset” for this family.
MATERIAL BEFORE THE COURT
In support of the father’s case, he relies on the following documents:
(1)Fourth Amended Initiating Application filed 5 March 2024;
(2)His affidavit filed 5 March 2024;
(3)Application in a Proceeding filed 15 February 2024; and
(4)Case outline filed 5 March 2024.
In support of the mother’s case, she relies on the following documents:
(1)Response to an Application in a Proceeding filed 1 March 2024;
(2)Her affidavit filed 1 March 2024;
(3)Notice of child abuse, family violence or risk filed 1 March 2024; and
(4)Case outline filed 5 March 2024.
In support of the Independent Children’s Lawyer’s case, he relies on the following documents:
(1)Case outline filed 6 March 2024.
Further, subpoenaed documents produced by the following entities were tendered and marked as the Court’s exhibits:
(1)NSW Police as Exhibit C1;
(2)Department of Communities and Justice as Exhibit C2;
(3)QQ School as Exhibit C3;
(4)Ms DD as Exhibit C4
(5)RR School as Exhibit C5;
(6)Region AN Local Health District as Exhibit C6;
(7)AP Hospital as Exhibit C7; and
(8)AQ Company as Exhibit C8.
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.
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.
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.

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.
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.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”)provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68.In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82.      In an interim case that would involve the following:
(a)       identifying the competing proposals of the parties;
(b)       identifying the issues in dispute in the interim hearing;
(c)       identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
THE ISSUES
The issues to be determined are as follows:
(1)Whether I should recuse myself;
(2)Whether the current Independent Children’s Lawyer should be discharged and another appointed;
(3)Whether there is a significant change in circumstances pursuant to Rice & Asplund; and
(4)Whether any further interim parenting orders should be made.
THE EVENTS OF FEBRUARY 2024
There are some undisputed and uncontentious facts that can be stated at the outset. The period of no contact with the mother following the final orders was a relatively stable and uneventful period. The children’s relationship with the father, and paternal family, was not perfect but it was not bad. X seems to have happily settled into a new school and is doing well.
In contrast to this, after spending the first period of five days with the mother, X refused to return to the father’s home, involved the police, the DCJ and medical professionals whilst making (for the first time, it should be noted) increasingly serious allegations about the father in relation to sexual abuse.
The Court will set out some uncontested facts in relation to the events of 7–14 February 2024. These facts appear in the independent subpoena records produced to the Court either pursuant to s 69ZW, or on subpoena. Some observations will be made based on the submissions, and the content of these documents.
On 7 February 2024 when the children were due to return to the father’s care, X spoke with the school counsellor to report that she did not feel safe in the father’s house. When the school counsellor asked if she would like to discuss her concerns with the police, X responded that she would. Police attended the school and X made allegations that the father “physically and mentally abused her”. When asked for specifics, she stated that he had “pulled her from the car by her arm”, forced her to smile, made her kiss him on the cheek and hug him, touched her “boob” when hugging her and told her she’s worthless and nobody liked her (Exhibit C3). The police then suggested that X come with them to the police station to speak with plain clothes detectives and X agreed to do so. That day, a provisional ADVO was taken out against the father and X went home with the mother that night. The mother failed to return X to the home of the father in accordance with Order 31 of the orders made on 13 December 2023. Importantly, this is an order that the mother herself proposed. X was again not returned later that week. The mother contends that this was because either the father agreed to this, or the police placed X in her care. There may, or may not, be a reasonable explanation, or reasonable excuse, for the mother’s actions. This may not become apparent until cross-examination at a final hearing.
On 8 February 2024, X attended the police station after school again and went home with the mother.
On 9 February 2024, the parties agreed that the mother would collect X from school and deliver her to the father after a medical appointment to avoid X attending the police again. On this day the medical appointment, unbeknownst to the father, included being tested for sexually transmitted infections (“STI”) at AP Hospital. More will be said about this below, but it seems clear that the mother did not tell the father about this testing.
The mother dropped X off at the father’s home that night, but X ran away and took the train back to the police station where she was eventually released into the mother’s care again. The father says that at about 8.00 pm that evening the mother arrived at the home of his parents with X, without prior notice. He deposes that as he emerged from the front gate, he saw the mother’s car “quickly accelerate off”. He then “saw [X] running down the street…”. The mother deposes that she waited in the car outside the father’s parent’s house until X was “in arms-length to the father” before she drove away (paragraph 92 of her affidavit). She further states that when the police asked her to pick X up at 10.20 pm, the mother responded that she would not pick her up as she needed to stay in the father’s care. She only picked X up when she received written confirmation from the police that the father had agreed for X to be in her care that night (paragraph 94 of her affidavit).
Senior counsel for the father was critical of the manner in which the mother delivered X to the home of the paternal grandparents. Even on the mother’s own evidence, the Court believes that the mother could have done more to ensure that X went into the father’s care, as opposed to being deposited outside of the home of the paternal grandparents. X’s actions in running away were entirely predictable at this point. That is exactly what she did. One inference that might be drawn from these events, when subjected to the critical scrutiny of cross-examination, is that, advertently or inadvertently, the mother was empowering X to make her own decision about running away, whilst maintaining the pretence that the mother was returning her to the father. The father’s senior counsel’s submission was that the mother was purporting to comply with her agreement to return X to the father, but her actions actually undermined this taking place.
On 10 February 2024, the mother picked X up from school and dropped her off at the father’s house. Again, X took the train to the police station but she agreed to return to the father’s home. On the father’s evidence, it was almost a direct repeat of what had occurred the previous day. He deposes that when the paternal grandfather rang the mother and explained to him that X had left, the mother is alleged to have said “I’ve dropped [X] in [Mr Dansey’s] care, she is your responsibility now, I have to go” (paragraph 70 of his affidavit). It was only following the intervention of a police sergeant that X reluctantly returned to the father’s care (paragraph 71 of his affidavit). The mother’s case is that the gates were closed so X rang the doorbell and the mother only drove away when she observed X entering the property and the paternal grandfather and the father waiting to greet her (paragraph 99 of her affidavit). She says she then received a call from the paternal grandfather asking her follow X to the train station as that is where they thought she was headed. The mother responded that X is meant to be in the father’s care pursuant to the final orders and the mother is to have no contact with her. She then asked to be kept informed and let him know that she would inform the father if X returned to her home (paragraph 99 of her affidavit).
On 11 February 2024, X remained in the father’s care.
On 12 February 2024, X ran away to the police station and stayed with the mother.
On 13 February 2024, X attended the police station and the mother picked her up and dropped her off at the father’s home where she remained.
On 14 February 2024, X was missing for approximately six hours and the father lodged a missing person’s report. X was eventually found in the mother’s home and was dropped off at the father’s home at night. X has since remained in the father’s care.
These events will be expanded upon below where relevant.
THE RECUSAL APPLICATION
In her Response to an Application in a Proceeding filed 1 March 2024, the mother seeks an order that I recuse myself in these proceedings. The father and the Independent Children’s Lawyer oppose this. This application must be determined first as I will not be able to adjudicate on the remaining issues if I conclude that I must recuse myself.
Applicable Law
The Court adopts the applicable law for an application for recusal as set out in the father’s case outline at paragraphs 38–40 as follows:
38. In Fierro & Fierro (No 4) (2022) FLC 94-120 at [26], the Full Court cited with approval the test for actual bias as enunciated by the Full Court in Newett & Newett (No 2) (2021) FLC 94-051 at [57]–[59]:
"57.The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
58. The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[70]:
68. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
59. It is difficult to distil what facts and circumstances on which the mother relies on to establish actual bias. Her own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way the mother believes they should have."
39. In relation to apprehended bias, in Acheson & Begbie [2023] FedCFamC1F 704 at [7], Christie J said:
"The doctrine of apprehended bias deals with the circumstances in which a judge may be perceived to decide a case other than on its merits … There are four potentially overlapping categories of apprehended bias:
(1) Disqualification by interest;
(2) Disqualification by conduct;
(3) Disqualification by association; and
(4) Disqualification by extraneous information."
40. In Re JRL; Ex parte CJL (1986) 161 CLR 342 (at [5]), Mason J said:
"… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."
(As per the original)

As the mother is self-represented, it is likely that she did not understand the difference between actual and apprehended bias. As there is no evidence of actual bias, a reasonable inference is that the mother intended to argue apprehended bias. Senior counsel for the father also accepted this in submissions. In relation to this test, Acheson & Begbie [2023] FedCFamC1A 240 continues as follows at [15]–[17]:
15In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court of Australia said:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)
16Who is the “fair-minded lay observer”? The plurality of the High Court in Johnson v Johnson (2000) 201 CLR 488 said at [13] that:
[W]hile the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.
(Footnotes omitted)
17It has been held that the observer “is taken to understand the dynamics of modern judicial practice” (AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at [23]) and “that the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally” (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232]).
Discussion
The focus of the mother’s application was my interim reasons for judgment and the interim orders I made on 16 February 2024 to suspend time between the children and the mother pending further order. She explained that because I heard the final hearing and “formed views” about the relevant issues in my final reasons for judgment, I could not be entirely impartial and open-minded to the recent events that have unfolded. This seems to be the first step of the two‑step process referred to above in identifying the alleged bias. The mother must then provide a “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
The mother submitted that my interim reasons for judgment were based on my prior understanding of the case rather than the information that was available after the final orders were made. She stated this bias, ostensibly in the sense of pre-judgement, is manifested because I made orders suspending time after only the father had filed material and with no input from her. She concluded that if someone with less bias was hearing the matter, they would have tried to seek further information rather than take such “drastic measures” as suspending time.
Further, she stated that my order granting the father leave to provide my final reasons for judgment and the reports of Dr U and Dr V to the NSW Police, X’s school and the DCJ shows that I pre-determined the mother’s culpability for X running away. Moreover, she referred specifically to Dr V’s report that diagnoses her with a delusional disorder, a diagnosis that I ultimately disagreed with in my final reasons for judgment. The mother submitted that by allowing that report to be provided to the authorities, I was intentionally attempting to create a perception that the mother is mentally unwell. She submitted that I was motivated to make this order because I held a biased view in this matter, inferentially by pre-judgment.
Finally, she submitted that after reading an extract from the s 69ZW police documents onto the record I “spoke abruptly and in an accusatory manner” towards her and made orders in response to the one police report that was not available for anyone else to view.
To be fair to the mother it must be acknowledged that my ex-tempore interim reasons for judgment were not settled and published until after what I said became an issue. Thus, she did not have the reasons until after I heard the present application. On 16 February 2024, I acknowledged that the matter was listed urgently in circumstances where only the father had filed his material and that I was keen to hear the mother’s perspective. However, I also stated that I respected if, for whatever reason, she was not prepared to tell me or was concerned to do so. The mother responded that she would like to tell me her perspective and she was invited to do as such. Senior counsel for the father submitted that the mother then spoke for 40 minutes. Upon reviewing the videorecording of the hearing, it appears the mother made submissions for 27 minutes and was then given a further opportunity to make submissions in reply which lasted two minutes.
Senior counsel for the father pointed out that the oral submissions she made on this day are largely in line with the material that she eventually submitted in the current proceedings. The Court agrees. To state that my interim reasons for judgment were made with “no input” from the mother is inconsistent with the record.
In relation to the various reports being provided to the authorities, there is an obvious inconsistency in the mother’s argument. She acknowledges that in my final reasons for judgment I disagree with Dr V’s diagnosis that the mother has a delusional disorder. As those reasons are also provided to the named persons, it becomes difficult to accept the submission that I am intentionally attempting to send a message to the authorities that the mother is mentally unwell. Senior counsel for the father submitted that the reports are important for the authorities to see in circumstances where the father is the alleged perpetrator and the experts in the reports conclude that he does not have any diagnosable mental illnesses. The Court agrees that this is important information for the authorities to have and disagrees that this order caused any prejudice to the mother in circumstances where the father is the alleged perpetrator.
In relation to the s 69ZW material, the Court agrees that it is unfortunate that none of the parties were able to have access to the documents prior to the hearing. As I explained on 16 February 2024, my chambers only received the material after the hearing had already commenced at 2.00 pm. Whilst it is unfortunate, it should be emphasised that none of the parties had access to the material so it cannot be that the mother was particularly disadvantaged in any way. The Court and indeed, all of the parties, could not have known what would be contained in that material. The mother’s argument that I made orders in response to this “one document”, presumably the police record of 14 February 2024, is contradictory with her argument that my judgment was based on my previous understanding of the case. In any event, the document in question was arguably the only independent material before me at the time and deserved weight accordingly.
It is true that I relied heavily on this material in my decision to temporarily suspend the mother’s time with the children. This is because the s 69ZW material revealed that on 14 February 2024 when X was reported as missing by the police for several hours, she was found in her bed at the mother’s home after the police searched her house. Whilst it is acknowledged in the police records that the mother seemed “surprised” to see X in her home, the mother herself failed to disclose to the Court, when she had the opportunity to do so, where X was that night. This did leave me with some concern about whether the mother was telling the Court everything she knew about these events. My interim reasons for judgment were based on material and events which post-dated the final hearing in 2023. The events of 14 February 2024 will be discussed further below.
The procedure for making interim parenting orders is an abridged process where the scope of the enquiry is “significantly curtailed” and the Court cannot make findings of fact (Goode & Goode). That evidence is yet to be tested. There is no cross-examination of parties or witnesses about what they allege in their affidavits, and so where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise, but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of [one party’s] submissions... judges are not required to treat all untested evidence as bearing the same weight.
(Citations omitted)
On that day, the Court simply had to do the best it could with the available evidence and make an assessment on the balance of risk. The Court was obliged to act on the strength of the evidence presented. It had to act protectively. The interim orders were only intended to be in place for a short period of time to allow the mother to file her evidence. As senior counsel for the father reminded the Court, it is by no means unusual for the judge who made final orders to then deal with issues of implementation and enforcement.
Therefore, the Court is of the view that the mother has failed to articulate the asserted connection between the nature of my alleged bias and the possibility of departure from impartial decision-making. I do not accept that a fair-minded lay observer would reasonably apprehend that I brought an impartial mind to the hearing on 16 February 2024. On that basis, I decline to recuse myself.
I note that the mother did not specifically ask me to recuse myself from further involvement in this matter because of the findings that I made in my final reasons for judgment. On 16 February 2024, I said to her words to the effect "having dealt with the matter substantively and made certain findings, you might consider whether an application should be made for my own recusal". The reference to “substantively” was a clear reference to the final hearing in 2023.
APPOINTMENT OF ANOTHER ICL?
The mother also asks for the current Independent Children’s Lawyer to be discharged and another Independent Children’s Lawyer be appointed in his place. The father and the Independent Children’s Lawyer oppose the mother’s application to discharge the Independent Children’s Lawyer.
Applicable law
An Independent Children’s Lawyer is appointed pursuant to s 68L of the Act. Section 68LA of the Act prescribes the general nature of the role of the Independent Children’s Lawyer as follows:
68LA Role of independent children’s lawyer
When section applies
(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(2)      The independent children’s lawyer must:
(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4)      The independent children’s lawyer:
(a)       is not the child’s legal representative; and
(b)is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5)      The independent children’s lawyer must:
(a)       act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6)      Subject to subsection (7), the independent children’s lawyer:
(a)       is not under an obligation to disclose to the court; and
(b)       cannot be required to disclose to the court;
any information that the child communicates to the independent children’s lawyer.
(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8)Subsection (7) applies even if the disclosure is made against the wishes of the child.
In his case outline, the father helpfully referred to Watts J in Dickens & Dickens [2016] FamCA 11 at [46]–[53] as follows:
Legal principles in respect of the removal of an Independent Children’s Lawyer
[46] In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
11. Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
[47] At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
[48] In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
[49] Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children’s Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
[50] If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
[51] In T & L (2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …
[52] The test that I shall apply is that the father needs to establish that the Independent Children’s Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41]–[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children’s Lawyer to argue firmly and fearlessly for what the Independent Children’s Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children’s Lawyer is in when fulfilling that role because it may be that the Independent Children’s Lawyer is required to challenge the position of one or other of the parents.
[53] It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children’s Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children’s Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.

Justice Tree distilled the principles from the relevant authorities in Horner & Horner [2018] FamCA 487 at [10]:
[10] A number of authorities have considered the removal of an Independent Children’s Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;
•On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
•It is certainly not the case that, even if an Independent Children’s Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;
•It is inevitable that the high standards of competence which the court expects of Independent Children’s Lawyers are not always met. Independent Children’s Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
The Parties’ Submissions
The mother contended that the Independent Children’s Lawyer demonstrated bias in not bringing an impartial mind on 16 February 2024. Her contentions were largely similar to the complaints that she made against me. She submitted that the Independent Children’s Lawyer has regularly voiced that he “agrees with ‘whatever the father wants’” and that a significant decision was made in support of her not having contact with the children on the submissions of only one party, without having heard the “full story”, based on facts that were considered before the final orders were made rather than new “unbiased” information. It was her case that an Independent Children’s Lawyer who had not been privy to the final hearing would have needed to seek further information before making a “drastic” decision. She further submitted that the Independent Children’s Lawyer has shown bias by agreeing that my final reasons for judgment and reports should be released to the authorities.
The father submitted that the mother’s complaints are unsubstantiated, unparticularised and entirely subjective. For example, the Independent Children’s Lawyer proposed orders in significantly different terms to those of the father at an interim hearing on 17 July 2023 (i.e., continued suspension of time versus equal time). He further submitted that the Independent Children’s Lawyer has done what is required of him, that is, carefully and independently considered the children’s best interests, and that nothing he has said or done would indicate that he is prejudiced against the mother or impartial in his dealings.
The Independent Children’s Lawyer submitted that the mother’s claims are unparticularised and of a very general nature, and that the position he has taken in this matter has sought to advance the bests interests of the children, informed by the evidence, including Court‑appointed experts. In response to the mother’s submission, he argued that any Independent Children’s Lawyer, including one who has been newly appointed, would need to have regard to what had occurred in previous proceedings before being able to assist the Court effectively. He also indicated that while he agreed for the psychological reports to be released to certain authorities (as it was important to provide them with this context), he did not support the Local Court receiving that material as he believed it was premature.
Discussion
There is a high threshold for the removal of an Independent Children’s Lawyer. The mother needs to establish that the Independent Children’s Lawyer actually lacks impartiality, or alternatively, that a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality, having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. Even where the Independent Children’s Lawyer forms a view in relation to interlocutory matters, this does not mean their independence to continue to act in the bests interests of the children is compromised to the extent that a parent who did not accept their position on an interlocutory matter can have them removed.
The Court agrees with the Independent Children’s Lawyer and senior counsel for the father that the mother’s allegations regarding the Independent Children’s Lawyer’s bias and impartiality are unsubstantiated. There is no merit to the mother’s claim that the Independent Children’s Lawyer consistently or inappropriately agreed or supported the father’s proposals, or that his proposal on 16 February 2024 was based on the father’s submissions only and facts previously before the Court rather than new information.
The Independent Children’s Lawyer, with his prior knowledge of the matter and the available evidence before him, formed a view as to the most appropriate course of action in the best interests of the children. There is nothing before the Court to support the mother’s contention that he did not come to this view independently or impartially, or that it was not based on the evidence available to him. The Court thus declines the mother’s application to discharge and replace the Independent Children’s Lawyer.
THE RICE & ASPLUND ISSUE
The mother argued that there is no significant change in circumstances that warrants making any further parenting orders or reopening the matter. The father and the Independent Children’s Lawyer submitted that there is.
Applicable Law
In Rice & Asplund, Evatt CJ stated at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
This long-standing rule is usually dealt with by way of preliminary hearing and was considered by Warnick J in SPS & PLS (2008) FLC 93-363 at [81] as follows:
Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing…
At [110] of Walter & Walter [2016] FamCAFC 56, Murphy J emphasised a “notorious fact” is that “continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them”. Therefore, the rule in Rice & Asplund has long been regarded as a manifestation of the best interests principle, to protect children from ongoing conflict, balanced alongside changes in circumstances that actually warrant relitigating.
The Full Court in Marsden & Winch (2009) 42 FamLR 1 provided considerations that the Court must look to when deciding whether to embark upon another hearing as follows:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Discussion
The mother submitted that there is no change in circumstances that allows any further parenting orders being made. In her case outline, she states that X had been running away from the father since 2022 and the Court was aware this was an ongoing risk. X has always expressed a wish to live with the mother and both parents have struggled at times to get X to comply with Court orders. The mother ultimately submitted the current situation is a continuation of the same issues that were before the Court during the final hearing. In oral submissions, she further stated that the father did not give the final orders an opportunity to work before filing these proceedings. She states that he filed his Application in a Proceeding two days after the children returned to his care without giving them an opportunity to settle into their new routine. When I asked the mother how I could be confident that the final orders could work out, she responded that this was the same question that I posed to the parties last year.
Many of these issues were before the Court last year. As referred in [5] of these reasons, I stated at [101] of my final reasons for judgment that it was the father’s submission that he has managed the issue of X running away as well as he could and, if the situation arises again, both parties being motivated to overcome the problem would be enough to manage it. This is clearly not his case now.
Putting aside the parties’ motivations to overcome the problem, the events from February 2024 show the final orders are not working. The Court has underestimated the risk of X running away. The Court and the parties had only considered a scenario where X would run from the father to the mother, and there was an order in place that required the mother to return X to the father. However, X has been running to the police station and the parties failed to anticipate police involvement. The parties overestimated their ability to cope with, and contain, X’s running away behaviour.
As well as that, X has been tested for STIs and there has been further DCJ and police involvement. In my final reasons for judgment at [185], I emphasised that X had not been psychologically harmed as she did not believe she had been sexually abused by the father. This is no longer the case. In relation to the STI test, the AP Hospital records (Exhibit C7) state:
[X] discussed that she wanted to get herself check on the inside to make sure everything was ok. She reported wanting a “test” to check if she was “ok on the inside”
…
[X] reported that between the ages of 3 and 6 years, she recalls an incident where her “dad forced himself on her”
On further questioning she reported there were “lots of blanks” but remembers he “pushed me down” and then “seeing his penis” and then “him leaning down” and then “my vagina” hurting a lot.
(As per the original)
The following paragraph has been extracted from DCJ material (Exhibit C2) about an interview that occurred between X and caseworkers in February 2024:
…Caseworkers interviewed [X] at school on […]/02/2024 . Without prompting from caseworkers, [X] told caseworkers that she believes that her father enters her bedroom at night, 'forces himself onto her' while she is asleep, then she wakes up with a really sore stomach and vagina. When talking with caseworkers she was crying, and appeared distressed. She indicated she may have been sexually assaulted by her dad when she was younger, however cannot remember. [X] stated that she had spoken with other people about these concerns, including police. When caseworkers asked about more details about actual assault, she was unable to provide specific details of what had occurred. While disclosures of sexual assault are concerning, [X] was unable to explain specific times, type of harm, when it occurred or where. She stated that she wakes up in the morning, and thinks that dad came in throughout the night. When questioned about the specifics of the abuse she noted she did not want to talk about it as she has previously disclosed the abuse to child abuse squad and would state "I don't remember". CW's watched the footage from the child abuse squad interview and [X] provided a number of different versions of abuse and police are worried about their being inconsistencies. [X's] counsellor's and and detectives are worried that these allegations are false.
(As per the original)
Whether or not X truly believes she is being sexually abused, it is a significant change in circumstance that she is making allegations of sexual abuse to authorities. Further, it should be noted that the mother herself proposes changes to the final orders although she submitted that she considers those to be “minor tweaks” to the final orders to attempt to “make the children settle in better”.
Therefore, the Court is satisfied that there is a significant change in circumstances to establish a new inquiry and that it is in the children’s best interests that the Court consider making further parenting orders.
FURTHER INTERIM PARENTING ORDERS?
The parties’ proposals in relation to parenting orders have been traversed above in these reasons.
Senior counsel for the father submitted that what is happening to X is child abuse. She referred to the AP Hospital documents and emphasised that when X first spent time with the mother after the period of no contact, she had an STI test. It is common ground that the mother took X to the hospital, not the father. The mother was the only adult who was either present, or in the vicinity, when X was interviewed and examined. X’s request for an STI test is of concern. She is only 12 years old. It is unclear to the Court whether consent was needed from an adult for such test to be administered. The records produced to the Court are unclear on this issue. The mother must have been conscious about the potential significance of this issue because the hospital records indicate that she told hospital staff that they needed to call the father for any consents as the final orders dictate she cannot provide consent. In her affidavit, as well, she reiterated that she made it very clear to the staff that she was not to be involved at all. The hospital records show that they did not call the father but they also do not state that the mother provided consent. Senior counsel for the father submitted that even if the mother did tell the hospital to call the father, they were hardly going to do this in the context of him being the alleged perpetrator in X’s allegations. Counsel also submitted that when the mother eventually returned X to the father, she did not advise him that this test occurred. The father’s case in relation to this issue is that even though the mother states she was “playing by the rules”, the fact of the matter is that the mother took X to the hospital, and she ended up getting tested for STIs. The Court agrees that X getting an STI test is very concerning. It is an alarming escalation in her allegations against the father. It occurred during a time when she was being cared for by the mother.
The Court has already referred to DCJ material where X discloses that she is being sexually abused by the father in her sleep. Senior counsel for the father also referred to DCJ material where a phone call between the caseworker and a police officer is recorded as follows:
…Once they told [X] that there would be a standard ADVO in place and she would return to her fathers place she became upset and said 'what if I tell you something else he did' – She then disclosed sexual abuse however was unable to provide any details - All of the details were inconsistent and he stated that many of the details didn't make sense and she would change her story. He determined that it is likely false- He stated that it is clear she does not want to live with her father however it is not clear that there is any abuse happening in the home.
(As per the original)
The documents before the Court indicate that X began making vague disclosures and when it became clear to her that she would still need to go home with the father, she proceeded to provide more “disclosures” in the hopes that she would get her way. This is concerning. Senior counsel for the father submitted that she did not believe she was getting sexually abused last year and she probably does not believe it this year, but she is saying it to the authorities in the hopes that she would be allowed to live with the mother. Moreover, the mother is not discouraging this behaviour.
The Court has traversed the events of 14 February 2024 when X ran away from the mother’s home. The mother deposes in relation to this event at paragraphs 110–135 of her affidavit. She states that she found X’s school bag outside of her front door when she returned home at 5.00 pm so she searched her house and the neighbourhood but could not find her. She gave evidence that X does not have a key to her house in accordance with the final orders. The father annexed a photograph of the mother’s home that shows there is no way of getting into the house other than through the front door. The mother stated that she might have left the “balcony door” open or X might have snuck in while she was talking to the neighbour. Other than that, she was unable to provide a plausible explanation as to how X might have entered the house without her knowledge. The police records state that in relation to the mother, there “was an apparent lack of cooperation in locating her child”. The inference that I drew in relation to the mother at the urgent interim hearing on 16 February 2024 was that the recorded police impression of her apparent lack of cooperation in locating X, and the fact that X was at that time in her own bed, in conjunction with the mother’s failure to disclose this information to the Court, suggested at the very least that the mother was not disclosing all relevant information to the Court. The mother’s further evidence, summarised in this paragraph, strengthens, rather than diminishes the inference that was drawn. One possible finding at a final hearing is that it is implausible that the mother did not know that X was at home at the time she was being interviewed by the police about X being a missing person. If such a finding were made, the mother’s willingness to allow the police to use social media to enlist the public in their enquiries about X as a missing person would be of further concern to the Court. It might suggest, for example, that there are few boundaries the mother would not cross in order to ensure that X lives with her.
It is an agreed fact that when the mother returned X to the father that night, she did not inform him that X was found in her home. She also did not inform the Court on 16 February 2024 where X was found that night.
In the RR School documents, there is an email from Ms AR to Mr AS dated 5 February 2024. Ms AR appears to be both Y’s current teacher and X’s former teacher. The relevant parts of the email are copied below:
For a little context, [X] is a highly anxious child and in my own personal opinion was highly manipulated by mum to say incriminating things about dad and other caregivers so that the courts would swing towards mum having full custody. I am not surprised that this has popped up in high school as she has experienced a lot of change since the end of 2023, is growing into her body (hormones etc) and has been essentially removed from her support networks (friendship groups, teachers etc at [RR School]). I also believe at least one parent moved home and this would also be discombobulating. From what I see with dad he has been a caring guardian. This being said, he does set clear and firm boundaries which would not be necessarily appreciated by the children and may be seen as harsh compared to the lack of boundaries they experience with mum.
Of course, it is difficult to say what is happening behind closed doors but I will say what I saw occur and that is that [X] was a shambles, worried, anxious mess that was confused, frustrated and sometimes angry at the beginning of 2023 and only after dad took on more care responsibilities did she learn, grow and come into her own. Dad was also the only one who came in to see me at least once a term to inquire of her academic, emotional and social progress and took on some suggestions to assist her throughout 2023.
(Emphasis added)

The subpoena records from Ms DD (X’s therapist since the substantive proceedings) on 29 February 2024 states as follows:
[X] said she went to the police because she doesn’t want to be with her dad. I asked if something had happened. [X] said she wont talk about it. She says she doesn’t care any more and she has given up. I asked about the visit to the hospital and she said she had a sore stomach.
I explained that it was really important that she try to explain to me what she has been saying to Police, child protection, etc. I explained that her speaking with me was very important in working out what was best for her. She said she didn’t care anymore and wasn’t talking about any of it anymore.
The subpoena records from DCJ provide a file note of a phone conversation that occurred between the caseworker and Ms DD on 15 February 2024 as follows:
Mum only just starting seeing the children unsupervised a few weeks ago and this is when the ROSHs began - She stated that Mums MH is significant and she presents with a distorted view of things and delusional. – [Ms DD] stated that [X] has never made any disclosures of sexual abuse or anything of concern regarding her in her dads care - She stated that [X] has a very entangled relationship with mother and they are very close which is more damaging to [X] as it is not normal parent child relationship - She stated that she has no contact with the mother because the mother does not return her calls and refuses to engage in counselling - She stated that the mother presents are quite unwell mentally and her appearance looks as though- She stated that she does not believe sexual abuse is occurring in the home and believes that the allegations are false. She stated that there has been investigations before as the mother will allege a number of things however all allegations and many forensic psychiatrists determine that the allegations are unfounded. - She stated that the father is very reasonable and is currently living with his parents for extra support.
(As per the original)
All of the subpoena records are consistent in this sense. X is making vague disclosures to various authorities, but she is unable to clearly articulate any details. The DCJ and police have both concluded that the allegations are likely not true. X’s former teacher at RR School and Ms DD are of a similar view.
There are risks for the children whatever decision is made.
The Court notes that none of the parties propose separating the siblings (i.e., a period of no contact between X and the mother whilst maintaining contact between Y and the mother). The Court agrees.
History is often the best indicator of the future. The most recent history in this matter demonstrates that when the children live with the father, as challenging as that might be from time to time for both the father and the children, the children nonetheless experience a period of stability in their lives. This is manifested by the absence of dramatic events when with the father. Conversely, however, almost immediately after the children resumed spending time with the mother what occurred was that X experienced what was, arguably, the most tempestuous week in her life with multiple visits to police stations, and engagement with both the child welfare and medical authorities. She made new and escalating disclosures. She ran away several times. She exposed herself to risk of physical harm. She suffered emotional harm. These are the facts. Currently, the Court neither knows the precise genesis for this extraordinary period nor its sequelae.
What the Court does know is that X’s behaviour escalated rapidly whilst she was spending time with the mother. A clear association is evident, but not causation. But even that mere association must be assessed by reference to the panoply of findings made in my final reasons for judgment. One of those findings was that X’s relationship with the mother is an enmeshed one. The Court referred to the subtle risk profile in this case. The Court found that the mother’s unwillingness to facilitate X’s relationship with the father was unlikely to be found in obvious manifestations of words said, or actions undertaken, but rather in nuances and subtlety, and in what is not said, or not done. The Court alluded to the likely subtlety of the encouragement to X to say things, even if it is not true. Those same reasons lead to a conclusion that the Court must proceed cautiously in terms of resuming the children’s relationship with the mother. Whilst, on the one hand, that relationship cannot be interrupted indefinitely, to resume it too quickly likely invites a repetition of the events that brings this matter to Court once again, or events similar. This would be an unacceptable risk to X directly, and indirectly to Y.
Nonetheless, the children’s relationship with the mother is a critically important one and needs to be resumed, as soon as it is safe to do so. It is not presently safe. It is the view of this Court that sufficient time needs to pass for the orders for children’s therapy, the mother’s therapy, and family therapy made on 13 December 2023 to not only commence, but to hopefully have a positive impact. Doing the best the Court can, that period will be six months calculated from the date when X returned to the father’s care, 14 February 2024, being the last day that she has spent time with the mother. It is consistent with the views expressed by Dr U at an earlier stage of these proceedings. This period will, hopefully, allow sufficient time for X’s relationship with the father to further consolidate. It will enable her to settle into her new school with all of its curricular and extracurricular activities. It will hopefully provide a period in the children’s lives where all they need to be focused on is being children and enjoying a developmentally appropriate life. It will hopefully provide the parents with much welcome respite from the litigation that seems to have been the focus of their lives for so long.
The children should have telephone communication with the mother, as proposed by the mother and consented to by the Independent Children’s Lawyer for five minutes per child. This order for communication shall commence in April 2024. A few more weeks of no communication between the mother and the children will be difficult for them, but it is important to give the mother the opportunity to reflect on the concerns that the Court has expressed about her, both in these reasons, and the final reasons for judgment.
The father has filed a fresh application for final orders in this matter. That application will be adjourned to a date five months hence to review the situation in relation to this family, and to assess whether further litigation is necessary.
The mother sought a number of orders in relation to children's expenses. In the absence of financial information about the parents, it was not possible to deal with these orders.
The Independent Children’s Lawyer has leave to relist on seven days’ notice. All outstanding applications are adjourned to that date.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 19 March 2024

File number(s):	SYC 3614 of 2021
Judgment of:	ALTOBELLI J
Date of judgment:	19 March 2024
Catchwords:	FAMILY LAW – Interim parenting – Where final orders were made in December 2023 – Significant change in circumstances – Where the final orders are clearly not working for the subject children – Where the older child is self-presenting to the police station – It is ordered that time be suspended between the children and the mother for a fixed period.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 69ZW
Cases cited:	Acheson & Begbie [2023] FedCFamC1A 240 Dickens & Dickens [2016] FamCA 11 Franklyn & Franklyn [2019] FamCAFC 256 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Horner & Horner [2018] FamCA 487 Marsden & Winch (2009) 42 FamLR 1; [2009] FamCAFC 152 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16 Walter & Walter [2016] FamCAFC 56
Division:	Division 1 First Instance
Number of paragraphs:	97
Date of hearing:	7 March 2024
Place:	Sydney
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	Pearson Emerson Lawyers
The Respondent:	Litigant in person
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:	19 MARCH 2024