Daughty & Fairhall (No 2) - [2024] FedCFamC1F 869

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daughty & Fairhall (No 2) [2024] FedCFamC1F 869

File number(s): ADC 1712 of 2016

Judgment of: BERMAN J

Date of judgment: 19 December 2024

Catchwords:
FAMILY LAW – CHILDREN – Where the mother was the child’s primary carer – Where interim orders were made in 2023 for the reversal of primary care – Where the Court ordered nominal time between the mother and the child – Where the mother was considered to be a psychological risk and unable to support a relationship between the child and the father – Where the mother now seeks orders for primary care – Consideration of risk – Consideration of whether the mother would adversely impact the child’s relationship with the father – Where the evidence suggests that the mother has gained insight into her behaviour and supports the relationship – Consideration of whether the father can promote a relationship between the child and the mother – Where the father concedes he did not facilitate or promote the relationship between the child and the mother as an act of retribution – Consideration of best interests – where the child is settled at her school – Consideration of the geographical distance between the parties – Consideration of impact of the child changing schools – Where the child’s needs are being appropriately met in the father’s primary care – Where the evidence supports a finding that the child’s best interests are supported by the child spending as much time as is possible in the care of the time spending parent – orders for the child to remain living with the father.

FAMILY LAW – DECISION MAKING – where the father seeks sole decision-making responsibility – where the mother promotes equal decision making responsibility – Consideration of the child’s autism diagnosis – Where the mother asserts the father does not accept the diagnosis – where the father asserts the mother takes the child to unnecessary medical appointments – where the father now concedes the child’s autism diagnosis – Consideration of whether the father can accept the child’s autism diagnosis and appropriately support her – where the father may lack the diligence and vigilance necessary to best promote the child’s development – Orders made for joint decision making.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,61D, 69ZT

Cases cited:
Andrew & Delaine [2009] FamCAFC 182

Doughty & Fairhall (2022) 65 Fam LR 537

Doughty & Fairhall [2024] FedCFamC1F 383

L v T (1999) FLC 92-875

M v M [1988] HCA 68

Maluka & Maluka [2012] 47 Fam LR 272

Vasser & Taylor-Black (2007) FLC 93-329

[2023] FedCFamC2F 113 (unreported)

Division: Division 1 First Instance

Number of paragraphs: 329

Date of hearing: 14 – 18, 21 & 22 October 2024

Place: Adelaide

Counsel for the Applicant: Ms Boyle

Solicitor for the Applicant: Adelaide Family Law

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Pittaway Lawyers and Conveyancers

Counsel for the Independent Children’s Lawyer: Ms Olsson

Solicitor for the Independent Children’s Lawyer: Silkwoods
ORDERS

ADC 1712 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DOUGHTY

Applicant

AND:
MR FAIRHALL

Respondent

AND: INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The parties do have joint decision making responsibility for X born 2015 (“the child”).
3.The child live with Mr Fairhall (“the father”).
4.The child shall spend time with Ms Doughty (“the mother”) every second weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school Monday (or 9.00 am if a non-school day).
5.The mother and the child shall communicate via FaceTime each Tuesday and Thursday from 5.00 pm to 5.30 pm.
6.The child shall spend equal time with each of the parties during terms 1, 2 and 3 school holidays as follows:
6.1The school holidays at end of terms 1, 2 and 3 shall be divided into two equal parts, with the child spending the first half with the father and the second half with the mother in even numbered years and the first half with the mother and the second half with the father in odd numbered years.
6.2The handover of the child shall occur at 10.00 am on the midpoint day of the school holidays.

7.The child shall spend week about time with the parties during Christmas school holidays with handover to occur at 5.00 pm on the first Friday of the holidays and then occur at 5.00 pm each Friday thereafter.
8.The parties do spend additional time with the child as follows:
8.1With the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2024 and each alternate year thereafter.
8.2With the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2024 and each alternate year thereafter.
8.3With the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2025 and each alternate year thereafter.
8.4With the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2025 and each alternate year thereafter.
8.5With the father from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2025 and each alternate year thereafter.
8.6With the mother from 3.00 pm on Easter Saturday until the commencement of school on Tuesday in 2025 and each alternate year thereafter.
8.7With the father from 3.00 pm on Easter Saturday until the commencement of school on Tuesday in 2026 and each alternate year thereafter.
8.8With the mother from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2026 and each alternate year thereafter.
8.9With the father from 9.00 am until 5.00 pm on Father’s Day.

8.10 With the mother from 9.00 am until 5.00 pm on Mother’s Day.
9.The party who does not have the child in their care on the child’s birthday is to spend time with her from 9.00 am to 12.00 pm.
10.If either party has a birthday when the child is not in their care, then the child is to FaceTime that parent between 5.00 pm to 5.30 pm.
11.All handovers that do not occur at school do occur at the Service Station in Town J or such other place as the parties may agree.
12.The child shall continue to attend at her current school or such other school as the parties may agree.
13.In the event of a medical emergency involving the child, the party who has the care of the child shall notify the other party as soon as reasonably practicable and shall allow the other parent to attend upon the child.
14.Each party is to keep the other party informed as to the name and contact details of any medical practitioner or allied health professional treating the child.
15.The parties will keep the other of them informed of any significant medical, therapeutic or other health appointment as may be attended by the child from time to time, including the name and contact details of the treating professionals.
16.Each of the parties shall be at liberty to attend events at the school that parents are ordinarily invited to including but not limited to sporting events, concerts and parent teacher interviews.
17.The parties be at liberty by arrangement with the child’s school to have copies of all reports, newsletters, photographs and any other information which the party would ordinarily be entitled to receive at their own expense.
18.The parties have leave to provide a copy of these orders to the child’s school or to any treating health professional or allied health provider to the intent that these orders shall be sufficient authority for either party to obtain from all medical and health practitioners or other allied medical/health providers all such information in relation to the child, whether either party shall reasonably request from them at the cost of the requesting party in all things.
19.The parties are restrained and an injunction is granted hereby restraining each of them from:
19.1Communicating with the other party other than in relation to the care, welfare and development of the child save and except in the case of an emergency, shall occur via email; and
19.2Recording any communication with the child or the other party or causing or permitting any other person to do so.

20.The appointment of the Independent Children’s Lawyer is hereby discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Doughty (“the mother”) and Mr Fairhall (“the father”) are unable to reach agreement in respect of the future parenting arrangements for X born 2015 (“the child”).
Consequent upon orders made by Judge Jenkins on 27 January 2023 as set out in [2023] FedCFamC2F 113 the child transitioned to the primary care of the father with no time to be spent with the mother.
The mother’s time with the child was minimally restored by an order made on 17 February 2023 which provided for the child to spend supervised time with the mother at a Children’s Contact Service with the Independent Children’s Lawyer (“ICL”) to obtain an observational report upon the conclusion of the sixth visit.
The mother’s time continued on a supervised basis at a Children’s Contact Service for two hours each alternate Saturday from 9 November 2023. By Consent Orders made 1 February 2024, the child was to spend time with the mother as follows:
(1)Commencing 11 February 2024, each alternate Sunday morning for a period of three hours from 9.00 am until 12 noon for three visits and thereafter four hours from 9.00 am until 1.00 pm to be supervised by the paternal grandmother or, if the paternal grandmother is unavailable, the paternal grandfather or paternal aunt.
(2)On the occasion of the child’s birthday, for a period of three hours from 9.00 am until 12 noon under the same conditions of supervision.
(3)On such other occasions as may be agreed between the parties from time to time.
It is uncontroversial that the parties were not able to agree for the mother to spend additional time with the child.
Following a contested interim hearing on 29 May 2024, for the reasons as set out in the judgment Doughty & Fairhall [2024] FedCFamC1F 383, Kari J made extensive orders by way of trial directions, the preparation of a Family Assessment Report pursuant to s 62G(2) of the Family Law Act1975 (Cth) (“the Act”) and orders that the child continue to spend time with the mother each alternate Sunday from 9.00 am until 1.00 pm supervised by the paternal grandmother or, if unavailable, then the paternal grandfather or paternal aunt.
A significant issue as between the parties was the added complexity arising from the distance between the two parties’ living arrangements. The father lives in City B and the mother lives in Town K, the distance of which is over 100 kilometres apart with a travel time of more than 90 minutes.
A common feature of the orders was that handover was to occur at a Service Station located in City B.
For reasons that will be discussed, the following interim orders were made at the conclusion of the trial on 24 October 2024:
1. That the child live with the father.
2.That the child spend time with the mother from 9.00 am to 3.00 pm each alternate Sunday commencing 3 November 2024.
3.That handover of the child between the parties or their nominee shall take place at [a Petrol Station, Town J], South Australia.
4.That the mother be at liberty to attend any school function including but not limited to Sports Days, Assemblies, Liturgies and Book Week Parade.
5.That the mother be at liberty to attend any sporting event or extra-curricular activity involving the child that occurs in a public place.
6. That the parties are restrained from:
6.1Denigrating the other party within the presence of the child or permitting any other person to do so; and
6.2Discussing these proceedings in the presence of the child save as is necessary to inform the child of the change in the interim parenting arrangements.
Whilst the interim orders increased the time that the child was to spend with the mother to six hours, the important observation is that it was no longer a part of the father’s case that the mother’s time with the child should be the subject of supervision.
The venue for the handover of the child between the parties or their nominees is now to occur at Town J which is almost equidistant between the homes of the parties. Previously, the restricted time and the requirement for handover to take place at City B meant that it was not practical for the child’s time with the mother to be taken at her home in Town K. Given the traveling time between Town J and Town K is more than 40 minutes, it is anticipated that the mother would now have the option of the child being able to spend some time with her and the maternal grandparents in their home.
ORDERS SOUGHT
It appears that each of the parties have given careful consideration to the orders that they now seek.
For her part, the mother seeks orders summarised as follows:
(1)That the parties have joint decision making responsibility for the child.
(2)That the child live with the mother.
(3)That the child spend time with the father every second weekend from the conclusion of school Friday (or 3.30 pm if a non-school day) to the commencement of school Monday (or 9.00 am if a non-school day).
(4)That the father and the child shall communicate via FaceTime each Tuesday and Thursday from 5.00 pm to 5.30 pm.
(5)That the parties spend additional time with the child as follows (at which time, the time in paragraphs 2,3,6 and 7 is suspended):
(a)With the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2024 and each alternate year thereafter;
(b)With the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2024 and each alternate year thereafter;
(c)With the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2025 and each alternate year thereafter;
(d)With the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2025 and each alternate year thereafter;
(e)With the mother from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2025 and each alternate year thereafter;
(f)With the father from 3.00 pm on Easter Saturday until the commencement of school on Tuesday in 2025 and each alternate year thereafter;
(g)With the mother from 3.00 pm on Easter Saturday to the commencement of school on Tuesday in 2026 and each alternate year thereafter;
(h)With the father from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2026 and each alternate year thereafter;
(i)With the mother from 9.00 am until 5.00 pm on Mother’s Day;
(j)With the father from 9.00 am until 5.00 pm on Father’s Day;
(6)That the child shall spend equal time with each parent during school holidays with the child to spend the first half of the holidays with the mother and the second half of the holidays with the father in even numbered years and the first half of the holidays with the father and the second half with the mother in odd numbered years.
(7)That the child do spend week about time with the parties during Christmas holidays with handover to occur at 5.00 pm on the first Friday of the holidays and then occur at 5.00 pm each Friday thereafter.
(8)That all handover’s that do not occur at the school do occur at the Service Station in Town J.
(9)That the parent who does not have the child in their care on her birthday do spend time with her from 9.00 am to 12.00 pm.
(10)That if either party has a birthday when the child is not in their care, then the child is to be FaceTime that parent between 5.00 pm and 5.30 pm.
(11)That the parties do all acts and things as are necessary to enrol the child in the M School within 14 days of the date of these orders.
(12)That the parties notify each other as soon as is reasonably practicable in the event of a medical emergency involving the child.
(13)That each party is to keep the other informed as to the name and contact details of any medical practitioner or allied health professional treating the child and shall advise of any significant medical, therapeutical or other health appointments as may be attended to by the child from time to time.
(14)That each of the parties be at liberty to attend the events at the school that parents are ordinarily invited to including but not limited to sporting events, concert and parent teacher interviews.
(15)That the parties be at liberty by arrangement with the child’s school to have copies of all reports, newsletters, photographs and any other information which the parties would ordinarily be entitled to receive at their own expense.
(16)The parties communicate via email except in the case of an emergency involving the child.
The orders sought by the mother seek to restore the outcome of final orders made 30 July 2020 with the child remaining in the mother’s primary care.
As at the commencement of the trial, the father sought that he have sole decision making authority for the child and that there be no time spent with the mother save and except for FaceTime communication each Thursday between 6.45 pm and 7.15 pm.
At various stages during the trial it became apparent that the father gave consideration to ameliorating the orders sought by him which he conceded would affectively deny any meaningful relationship between the child and the mother such that at the conclusion of the evidence, but prior to the commencement of final submissions, the father’s counsel tendered a proposed minute of order which provided for the following:
(1)That the father have full parental responsibility and sole decision making for the child.
(2)That the child live with the father.
(3)That the child spend time with the mother commencing on Sunday 17 November 2024 from 10.00 am to 2.00 pm and increasing by 1 hour in each subsequent year such that on 29 April 2028, the child would spend time with the mother each alternate Saturday from 3.00 pm until 4.00 pm Sunday. The overnight time would increase such that on 26 April 2030 at age 15 years the child would spend time with the mother from 4.00 pm on Friday until 5.00 pm Sunday and each alternate weekend thereafter.

The father also provides for the child to spend time with each of the parties on her birthday, over the Easter period albeit of more limited duration, Mother’s Day, Father’s Day and during the Christmas period.
The father was also prepared to concede that from April 2025 the handover arrangements would occur at Town J.
The father seeks to retain primary care, however his counsel confirmed that if there was a change in the primary care, he would accept the orders proposed by the mother.
Whilst the distance between the parties should not be considered insurmountable, there is acceptance by each of them that in the absence of primary care, more time than each alternate weekend and half school holidays would be impractical taking into account the child’s curricular and extra-curricular activities.
It is acknowledged that there is broad agreement between the parties as to each of their interaction with the child’s school, their separate ability to attend curricular and extra-curricular activities and that there should be an appropriate exchange of medical and allied health information.
The ICL identified the following issues in dispute:
(1)Whether the mother and father should have joint or sole decision making authority.
(2)Whether the child should live with the father in City B or the mother in the Town K area.
(3)Whether the mother should be permitted to spend supervised or unsupervised time with the child if the child lives with the father and, if so, whom the supervisor would be (if supervised) and where such time spending should occur.
(4)Whether the mother should have telephone contact with the child if she lives with the father and if so, how frequently and when.
(5)Whether the child should remain at L School in City B or start a new school in the vicinity of Town K (eg. M School).
(6)Whether the mother is willing to support the relationship between the child and the father given the history of the matter.
The orders sought by the ICL, whilst subject to the evidence in the proceedings, were initially to support the child living with the father and that he have sole decision making.
The ICL did not consider that continued supervision was required but did not support an extension of time beyond the following spend time with arrangements:
(1)Each alternate Sunday from 9.00 am until 12.00 pm in the City B area.
(2)Such further and other periods of time spending as agreed between the parties in writing from time to time.
(3)By FaceTime or telephone each Thursday between 6.45 pm to 7.15 pm with the father to initiate the call and noting that the father will ensure that the call is in the absence of any other person.
Similar to the position adopted by the parties, the ICL broadly supported an appropriate exchange of information regarding the child’s education, medical and allied health issues but did not support the mother attending at the child’s curricular or extra-curricular activities.
In final submissions, whilst the ICL did not support the primary position of the mother namely, that the child be returned to her primary care, it is reasonable to summarise the ICL’s position as being broadly supportive of the final orders sought by the father albeit with a more truncated time frame for the introduction of extended time including overnight time.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:-
(1)Initiating Application filed 14 October 2022.
(2)Mother’s trial affidavit filed 27 August 2024.
(3)Affidavit of Ms N (maternal grandmother) filed 20 September 2024.
(4)Affidavit of Mr O (maternal grandfather) filed 20 September 2024.
(5)Mother’s affidavit in Reply filed 11 October 2024.
(6)Report of Ms P.
(7)Report of Ms E.
(8)Outline of Case filed 11 October 2024.
The father relies upon the following documents:-
(1)Response to Initiating Application filed 16 January 2023.
(2)Father’s trial affidavit filed 27 September 2024.
(3)Affidavit of Ms Q (paternal grandmother) filed 27 September 2024.
(4)Outline of Case filed 12 October 2024.
The ICL relies upon the following documents:-
(1)Family Assessment Report prepared by Ms R dated 20 September 2024.
(2)Child Impact Report prepared by Ms H dated 17 December 2021.
(3)Case Outline document of the ICL filed 9 October 2024.
TREATMENT OF THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The consideration as to the extent to which s 69ZT of the Act should apply arises in respect of the matters as set out in the mother’s Outline of Case as follows:
(1)The mother contends that it is in the child’s best interests to live in her primary care;
(2)That the father’s conduct does not demonstrate that he has the capacity or willingness to support the relationship between the mother and the child;
(3)That there is an unacceptable risk of psychological harm to the child if she remains in the primary care of the father as he is likely to entirely estrange the child from the mother; and importantly;
(4)That the Court make a positive finding that in mid-2014 the father had sexual intercourse with the mother without her consent.
The context of the alleged sexual assault is that the parties commenced a dating relationship in early 2014 with the alleged sexual assault to have taken place in mid-2014. A further assault is alleged to have occurred in mid-2015. Following the birth of the child in 2015 the father issued proceedings on 11 May 2016.
The mother sets out the details of her relationship with the father at paragraphs 22 to 60 inclusive of her trial affidavit.
Whilst the relationship was of short duration the mother says that the father was aggressive and would be insistent that the mother engage in sexual intercourse.
In mid-2014 the mother alleges that the father sought to engage in sexual intercourse. By that, stage the mother wanted to end the relationship and she resisted the father’s advances. The mother contends that the father was angered at her refusal to engage in sexual intercourse, became angry and threw her to the floor. He then is alleged to have pulled down her pants to just above her knees at which point he sexually assaulted her. The mother considers that she did her best to resist the father but was overwhelmed by his size and strength. Further sexual assault then occurred.
It is admitted by the mother that whilst she told the maternal grandmother and her General Practitioner of the assault, she did not go to a hospital, nor had she immediately reported the matter with police.
An important consideration in the history of the matter is that whilst the mother told others of the alleged assault, she did not tell her father until 2017 for fear of how he might react. The mother reports that a police statement was made in mid-2020.
According to the mother, there was a further aggressive and violent interaction between the parties on a second date in mid-2014. The mother wanted to end the relationship with the father and attended at his home to collect her belongings after 8.00 pm hoping that he would be at his parents’ home however, the father was present. Whilst packing up her belongings from the father’s bedroom, she alleges that the father would not let her leave the room and knocked the belongings from her hand and pushed her against the door. Without warning, the mother alleges that the father punched her with a right fist to the centre of her stomach and then requested sex.
Whilst the mother states that she resisted, she alleges that the father grabbed her breasts and then pulled out his penis and commenced to rub it over her exposed stomach. The mother managed to break free and whilst the father followed her to her car, eventually she was able to leave his property.
The details of the alleged sexual assault in mid-2014 are consistent with the mother’s initial position namely, that she sought a finding that on the balance of probabilities the father had sexually assaulted her. The mother did not necessarily seek a finding of sexual assault arising from the father’s conduct on the second date in mid-2014 even though on the mother’s evidence if established amounted to a serious assault.
In M v M [1988] HCA 68 (“M v M”) the High Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted at [51] with approval, the following passages from M v M (supra) at pages 77,080-82:-
19.In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.
21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
The Court was not assisted in understanding the context and relevance to the current proceedings of the history of the alleged aggressive behaviour of the father generally during the course of the short relationship but specifically in relation to the purported allegations of events that occurred in mid-2014.
Even though the mother initially sought that the Court make a positive finding that the father was the perpetrator of sexual assault on the first date in mid-2014, the mother entered into final Consent Orders in 2020 which provided for the child to spend time with the father. Moreover, the current orders sought by the mother seek joint decision making and that the child spend significant time with the father.
Whilst the mother contends that there is an unacceptable risk of psychological harm to the child if she remains in the primary care of the father, this is not as a result of family violence including overt sexual assault but rather out of a concern that the father would not properly support the child’s relationship with her.
It is not asserted by the mother that the father presents as an unacceptable risk by reason of family violence.
The father argues that the case presented by the mother is inconsistent with her consent to final orders made in 2020 and the orders now sought which include joint decision making for the child.
The allegations of sexual assault were raised by the mother at various trial management stages with the Court foreshadowing that a serious allegation of sexual assault, if pressed, would require a consideration as to the application of s 69ZT of the Act.
In determining whether the provisions of the Evidence Act should apply, consideration must be given to s 69ZT(3) of the Act namely, I must be satisfied that the circumstances are exceptional and in doing so, I have had regard to the following matters:
(1)The importance of the evidence in proceedings;
(2)The nature of the subject matter of the proceedings;
(3)The probative value of the evidence; and
(4)The power of the Court (if any) to adjourn the hearing to make another order or to give a direction in relation to the evidence.
In the decision of Maluka & Maluka [2012] 47 Fam LR 272, Coleman J said:
28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
The method and manner in which the evidence of each of the parties was presented is problematic. Counsel for the mother sought to press objections to the father’s affidavit. Whilst the exercise was lengthy given the allegations and counter allegations between the parties involving serious factual issues to be determined, I heard and determined the objections of the mother’s counsel. The father’s counsel did not seek to undertake a similar exercise. Given the voluminous nature of the mother’s affidavit it may well have descended into a herculean task.
It is a trite observation that significant portions of the mother’s affidavit would either likely be inadmissible or alternatively of limited evidentiary weight.
Whilst it was apparent that the primary trial affidavits of the parties had not been the subject of counsel scrutiny nor any proper consideration by the parties’ solicitors as to narrowing the issues in dispute, the allegation of sexual assault in early 2014 was sufficiently serious such that the father was entitled to have the mother’s allegations tested with due regard to the factors mentioned in Briginshaw (supra). Specifically, the provisions of the Evidence Act apply only to the alleged sexual assault and not to any other aspect of the evidence including the further allegation of the mother arising from the incident on the second date in mid-2014.
Whilst more will be discussed, the father was trenchant in his denials that he had ever been aggressive or forceful in the parties’ sexual encounters, that at all times the mother was consensual and that specifically, he did not sexually assault the mother on either date in mid-2014.
DECISION OF JUDGE JENKINS DATED 27 JANUARY 2023
Whilst the matter was listed before Judge Jenkins on 25 January 2023 concerning a determination of where the child would attend school, the substantive matter to be determined on an interim basis was the father’s application seeking a change in primary care.
Her Honour brought to account the background of the proceedings and in particular, the final Consent Orders made on 30 July 2020. Those orders provided for the mother to have sole parental responsibility, for the child to live with her and spend time with the father gradually increasing from 8.30 am to 3.30 pm but without any overnight time.
Whilst the orders appear to have regulated the parenting arrangements for the child, it is conceded by the mother that as and from 5 December 2020, the child did not spend time with the father pursuant to the 2020 Consent Orders other than the last visit on 26 December 2020.
The father filed a Contravention Application on 11 August 2021 and pursuant to orders made 29 September 2021, a Child Impact Report dated 17 December 2021 was prepared.
Pursuant to Consent Orders made on 30 March 2022, the father’s time with the child progressed to include overnight periods.
Upon appeal by the mother, as set out in Doughty & Fairhall (2022) 65 Fam LR 537, the Full Court dismissed the orders made by Judge Jenkins on the basis that there was no viable application before the Court save and except for Contravention proceedings which did not permit the power to make parenting orders even by consent.
An important aspect in the proceedings before Judge Jenkins, and repeated by the mother in the current proceedings, is the mother’s contention that the child was so distressed that she had tried to commit self-harm on two occasions.
The Department for Child Protection (“DCP”) became involved following an order made pursuant to s 91B on 20 October 2022.

Her Honour had significant regard to the DCP reports and the observations of the father and the child in the Child Impact Report.
In [2023] FedCFamC2F 113, Judge Jenkins summarises the basis upon which a change in the primary care of the child warranted is readily ascertained from the following paragraphs:
44.In this matter I have taken into consideration the risk to [the child] of being removed from the mother’s care as well as the risk to [the child] of remaining with the mother, and this includes a risk to [the child] of emotional harm because she is potentially being led to believe that there is something to be fearful of in her father’s care. The mother’s evidence is that [the child] has made disclosures that the father has sexually abused her. These disclosures are either true, in which case [the child] has made extremely serious allegations against her father, and yet the mother delayed taking any action in regard to same, or the mother is not telling the truth. In either case, [the child] is at potential risk of harm.
45.As I have mentioned, the other of the primary considerations (sic) is the right of [the child] to have a meaningful relationship with her father. There is a real risk in this case that the mother will not promote a relationship between [the child] and her father, and indeed may be doing all she can to prevent any relationship from occurring. I have done my best to assess the veracity of the evidence before me in regard to these risks, and in my view, [the child] faces a greater risk of harm in the mother’s care, and ought to be placed immediately into the care of the father.
The justification for the child to spend no time with the mother is set out as follows:-
48.Furthermore, I am not satisfied that if [the child] were to spend time with the mother at this stage that she would be returned to the father, and I am concerned about the potential for negative influence on [the child] from the mother and her family. Therefore, the only option is to make no orders for the mother to spend time or communicate with [the child].
Consequential orders were made by her Honour such that the mother was ordered to undergo a psychiatric assessment and then the proceedings were to be transferred to Division 1 of the Federal Circuit and Family Court of Australia (“FCFCOA”).
As discussed, a number of months elapsed before orders were made by Kari J that the child resume spending time with the mother albeit under supervision initially of a Children’s Contact Service and then supervised by the paternal grandparents.
At the commencement of final submissions by the mother’s counsel, the Court was advised that the mother no longer sought a finding that she was the victim of a sexual assault by the father in early 2014. What is not clear is whether the mother relies upon the general allegation that the father perpetrated family violence which included aggressive conduct and behaviour by the father involving sexual intercourse but falling short of non-consensual sex.
It is not apparent from the presentation of the mother’s case how family violence, if alleged by the mother, is to be brought to account in the parenting orders sought by the parties. It appears that the mother’s reliance upon her belief that she was at least the subject of aggressive behaviour by the father and at worst, conduct that she considers falls into the category of non-consensual sexual intercourse, has application in providing in part an explanation for her initial lack of support for the father’s continued involvement with the child.
THE EVIDENCE
The mother
At the commencement of the mother’s evidence, the ICL tendered school reports for the child’s attendance at L School for the 2023 and 2024 school years (Exhibit “1”). It is notable that the child is in a mainstream class and has received intervention to support literacy.
The school reports assume a level of importance greater than was apparent at first consideration. It is also noted that they cover the period after the child was placed in the sole care of the father. The attendance records are satisfactory demonstrating a 98 per cent attendance in 2023 and a 94 per cent attendance in 2024.
The end of year summaries are uniformly consistent in their acknowledgment of the child’s achievements. The child presents as a gentle and reserved student who has established strong peer group relationships. It is noted that the child takes pride in the presentation of her work and appears to be responding to further input to assist in reading, writing and language fluency.
Whilst maybe a simplistic overview, it appears that the child is meeting expectations and achieves at a satisfactory level although more is required in some subjects.
In evidence, the mother concedes that the child was meeting reasonable milestones whilst in the father’s care. However, it is the mother’s position that the child was capable of a higher level of achievement not properly reflected in the reports arising from her ongoing concern that the father remains resolute in not accepting the child’s diagnosis of Autism Spectrum Disorder (“ASD”) and the need to pursue allied health input, in particular, therapy.
This aspect of the mother’s evidence assumes a greater level of importance consequent upon the subsequent belated disclosure by the father that the child had undergone a comprehensive assessment which coalesced in the T Family Services Assessment Report dated 14 August 2024 (Exhibit “11”). At the time of the mother’s evidence, she was unaware of the existence of the report and in particular its contents.
As is apparent from the judgment of Judge Jenkins, for reasons that are not entirely clear, her Honour was persuaded by the submissions made on behalf of the father and the ICL that the mother should be psychiatrically assessed.
It is the mother’s evidence that she has been diagnosed with ASD and Attention Deficit Hyperactivity Disorder (“ADHD”). The mother was not challenged as to her asserted presentation. It is to be assumed that the reason that underpins the order directing the mother to be psychiatrically assessed arises from an assertion by the father and, likely supported by the ICL, that the mother’s early and initial resistance to the child spending time with the father and then her subsequent allegation that the father may have perpetrated sexual abuse may be indicative of an underlying mental health issue.
A secondary feature of potential concern is an observation that the mother’s attention to the needs of the child arising from the diagnosis of ASD may amount to an excessive focus and hypervigilance.
It is a trite observation that the order for a psychiatric assessment was not allied to a parenting order and as such, may have amounted to an impermissible investigation by the Court as to the mother’s mental health.
The decision of the Full Court in L v T (1999) FLC 92-875 considered an order made that a party attend upon a psychiatrist “for assessment of her present psychiatric state and thereafter abide by such a therapy program as is recommended by such a psychiatrist”. The issue was considered by the Full Court at 86,391 as follows:
51.Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court's power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
The Full Court considered that the Court does not have power to make orders that require the parties to do things on the basis that the Court might consider it would serve the best interests of a child.
As matters have transpired, the mother underwent a psychiatric assessment resulting in the preparation of a psychiatric report prepared by Dr F dated 25 May 2023 (Exhibit “17”).
The mother’s evidence is that her diagnosis of ADHD and ASD does not affect her ability to care for the child.
The mother’s contention is that the unexpected change in the primary care of the child on 27 January 2023 caused her sufficient anguish and upset such that she sought assistance from Ms E, a counsellor, who considered that the mother may have Post-Traumatic Stress Disorder (“PTSD”). Whilst more will be said of Ms E’s therapeutic engagement with the mother, it is ongoing and although the mother retains NDIS status, it will likely continue into the foreseeable future.
The mother was also challenged as to the need for continued therapy with Ms D a psychologist who assists the mother with her presentation of PTSD in relation to the alleged sexual assault that occurred in 2014.
Given that the mother continues to engage in ongoing therapy, it is a reasonable finding that she holds the view that she was the subject of sexual assault by the father.
In addition to the engagement with Ms E and Ms D, the mother has commenced therapy on a weekly basis. Whilst it is the mother’s evidence that she has gained benefit from therapy she acknowledges that her ability to attend is dependent upon continued NDIS funding which is likely to come to an end.
The mother’s evidence is that her continued therapeutic engagement has enabled her to function at a high level as is evidenced by the mother commencing a business in 2023 together with the continuation of another business.
The mother currently resides in the home of the maternal grandparents and it is likely that she will remain with her parents for the foreseeable future.
It is a feature of the circumstances of each of the parties that they continue to live with their parents. It is not suggested by either party that the maternal or paternal grandparents present as a risk or danger to the child although, it is the father’s contention that the maternal grandfather is openly hostile towards him.
The mother’s evidence as to what she would ask the Court to accept as demonstrative of her personal development and insight is summarised in the following paragraph from the mother’s trial affidavit:
475.The Father continues to say that I am a risk to [the child] because I will negatively influence perception of him. Losing primary care of my daughter has been a sobering experience and I would not jeopardise my relationship with her again. I have done significant soul searching and work on myself and I am willing to recognise the ways in which I could have done better.
The mother’s evidence is that if the child is returned to her primary care, then she would be enrolled in M School.
The mother was challenged as to opposition demonstrated by her to the education provided by the S School in 2022. In broad terms, the mother considered that the school did not provide appropriate support for the child’s special needs.
Again, it is a feature of the proceedings that the parties each adopt a differing approach to both the recognition and acceptance of how the child presents and the extent of external supports required.
The mother was asked whether she now accepted that the father was not the perpetrator of sexual abuse. The mother conceded that the father had been the subject of a full and comprehensive investigation and that not only were the allegations not substantiated but that they were without foundation.
Whilst difficult to assess the extent to which the mother now accepts that the allegations were without basis, her response was both credible and without equivocation.
Following a s 91B order made on 20 October 2022, DCP prepared a report dated 12 December 2022 (exhibit “2”) which set out the child protection concerns. At that time, it was noted that the child was spending no time with the father and concerns had been raised as to the mother’s presentation in particular, in relation to allegations made by the mother in mid-2022 that the father was the perpetrator of sexual abuse. There were concerns that the mother was manifesting a false narrative as to the child’s mental health and attempting to pursue a causal link between the child’s adverse presentation and her fear of the father.
At the time of the report, the departmental workers also expressed concern that the mother was fixated upon her belief that the father perpetrated sexual abuse and that the mother was involving the child in unnecessary assessment, therapeutic intervention and the promotion of a plan to withdraw the child from mainstream schooling.
Of particular concern to DCP was the mother’s assertion that the child had expressed suicidal ideation. The department considered that the child may be experiencing emotional harm in the mother’s care in that she was manipulating the child which was resulting in alienation from the father.
The department acknowledged that the mother was proactive in seeking support services but remained concerned that:[1]
[the mother] is influencing assessments conducted for [the child], by providing her biased information pertaining to [the child]. [The child] is engaged with various service provisions, which appear to be out of proportion with the child’s developmental needs and presentation of her abilities. Of concern, [the child]’s engagement with the large number of services is impacting on her ability to actively engage and attend school, as [the child] has been absent for a significant amount of her education.
[1] Exhibit “2” page 12.
The mother had considered the contents of the DCP report particularly as it was significant in the decision of Judge Jenkins to change primary care.
The mother did not resile from her view that the child required more and not less intervention in order for her proper support. She considered that all the information concerning the needs of the child together with assessment and diagnosis had been properly put before the Court with the implication that its importance had been either downplayed or ignored.
Orders made on 30 March 2022 provided for the child to spend time with the father initially for one occasion each fortnight from the conclusion of school to 6.15 pm and then by orders made 20 May 2022, his time increased to overnight time on one occasion each fortnight commencing on 27 May 2022.
The period between the resumption by order of the father’s time with the child and the change in primary care on 27 January 2023 is significant in the proceedings.
As considered, the father’s allegation, to a significant degree accepted by Judge Jenkins, was that the mother was attempting to hinder and limit the child spending time with the father.
The mother’s evidence is that the child demonstrated increasing anxiety that appeared to coincide with the anticipation of the child spending time with the father and on the mother’s case, the child’s anxiety reached its zenith when on two dates in mid-2022, the child engaged in self-harm.
The mother gives evidence that on a date in mid-2022, she left X to play on the playground equipment whilst she went inside the house to prepare lunch. Shortly thereafter, she records that the family dog was barking and upon further investigation, she found X in a harmful situation. The mother’s evidence is that X said she wanted to change her situation.
Similar circumstances occurred on a second date in mid-2022 when again the mother was alerted by the dog barking to find X in a harmful situation.
The mother relies on evidence from Dr U being a medical report dated 8 July 2022, (annexure “[MD14]” to the mother’s trial affidavit). The report sets out that over a period of time the child has presented with abdominal migraines that the doctor considers may be triggered by anxiety, resulting in cramping, high temperature in the abdominal region, nausea and vomiting.
It is likely that the medical report relies heavily upon the history as provided by the mother that the child has told her repeatedly that she does not wish to spend time with the father.
The importance of the mother’s evidence is whether it supports the father’s contention that if allowed to do so, the mother will actively seek to interfere with the child’s relationship with the father.
The mother’s presentation both in oral evidence but also in her trial affidavit is redolent with considerable detail that suggests a level of hypervigilance by the mother.
I bring to account correspondence from the mother’s solicitor to the father’s solicitor advising of the difficulties purportedly experienced by the child but nonetheless indicating a preparedness to do the best that she can to comply with the Court orders.
I am not able to find that the mother has fabricated either the events that she describes or the medical presentation of the child that could be consistent with the child experiencing high anxiety. There is however a component to the mother’s evidence that enables a finding that a more benign presentation by the child has been given a more serious and sinister interpretation by her.
It is possible that the period under consideration was distressing for the mother and potentially adopted by the child without it necessarily being seen as overt and active engagement by the mother to resist the child resuming and developing a relationship with the father.
It is also a relevant concession by the father that there were occasions when despite what appeared to be the mother’s best endeavours, the child was not prepared to transition into the father’s care. The focus of the cross-examination was to attempt to explain the child’s reluctance to go into the father’s care from time to time as a result of the mother’s inability to support the child’s relationship with the father. An equally credible explanation to the child’s reluctance is her young age and the circumstance that she was in the mother’s sole care since birth.
The mother’s evidence of her reaction to the change in primary care consequent on the orders of 27 January 2023 was compelling. I accept that the mother experienced significant grief and she had difficulty in reconciling the basis for the changed arrangements.
I am satisfied that the mother acted appropriately and was careful to comply with the Court orders in respect of her inquiries as to the child’s health and medical status.
I am also satisfied that the father was difficult in providing information in respect of the child’s wellbeing, not as a result of inadvertence but rather deliberately intending to limit the extent of the mother’s relationship with the child.
Similarly, I accept the mother’s evidence that she has engaged in a civil and appropriate manner with the paternal grandmother during periods of supervised time.
Ms N
Ms N is the maternal grandmother of the child. She presents as being supportive of the mother and that gave evidence that her home is suitable for the mother and the child to reside.
The maternal grandmother has also been present on a number of supervised visits with the child.
An important aspect of the maternal grandmother’s evidence is her involvement following the mother’s report to her that she had been the subject of sexual assault by the father in mid-2014. The maternal grandmother confirms that notwithstanding her preparedness to support her daughter, the mother determined that she would not make a report to the police.
Mr O is the maternal grandfather. The mother and the maternal grandmother decided that they would not inform the paternal grandfather of the alleged assault. It is the maternal grandmother’s evidence that the maternal grandfather only became aware of the allegation of assault when he was shown the mother’s first affidavit in the proceedings filed 19 July 2016 (Exhibit “10”). The relevance of the affidavit is that it was silent as to any alleged sexual assault had occurred in mid-2014. At paragraph 16 of the affidavit the mother alleges that the father was frequently forceful when it came to sexual intercourse and “he would psychically (sic) push me into having sex when I really did not feel like it at all”.

Paragraph 19 of the affidavit refers to an incident that occurred on a second date in mid-2014 wherein the mother alleges that the father had punched her in the stomach and “then almost as though he was joking pulled out his penis and started to rub it against my stomach”. It is apparent that the alleged incident that occurred on the second date in mid-2014 is a separate matter to the allegation that the mother was the subject of sexual assault on the first date in mid-2014.
The last involvement by the maternal grandmother was to attend with the mother for a supervised visit on 5 June 2021.
It was apparent from the evidence of the maternal grandmother that she did not hold the father in high regard. She considered that the relationship was problematic from the start given the age difference of about 14 years.
It is open to find on the evidence that the maternal grandmother is not supportive of the father.
Mr O
The maternal grandfather was not complementary towards the father. Consistent with the position of the maternal grandmother, he considered that the father was unsuitable as a partner to the mother. He made observation of the father smoking an illicit substance from time to time and was concerned that the father was quick to temper particularly if challenged.
The maternal grandfather refers to the allegation of sexual assault in paragraph 11 of his affidavit. His evidence does not assist as to the veracity of the mother’s allegation other than to confirm that he only became aware of an allegation of sexual assault consequent upon the commencement of the proceedings and presumably having been shown the mother’s first affidavit.
The observations of the maternal grandfather are largely historical and are of diminished significance to the current circumstances.
The maternal grandfather did attend some supervised visits across 2018 to June 2021. His observations of the reluctance of the child to engage with the father is consistent with the observations of the maternal grandmother and the evidence of the mother.
The presentation of the maternal grandfather was such that he remains hostile towards the father and whilst entirely supportive of the mother in particular, her ability to continue to reside in his home, it is unlikely that he will reconcile his differences with the father.
The father
The father currently resides with the paternal grandparents and in evidence, he expressed no intention to seek alternate accommodation. The father has not re-partnered and is currently the manager of a business.
The father’s concern is that he considers the mother is not able to control herself and is likely to engage the child in a range of unnecessary medical and alternate health treatments and therapy. Moreover, the father’s contention is that the mother is fundamentally opposed to the child having a relationship with him and if the child is returned to the mother’s primary care, she will, at best, pay lip service to the father’s continuing involvement and, at worst, actively interfere to disrupt the relationship between the father and the child that has now developed over a period almost two years.
It is now apparent that as the proceedings progressed and the father’s evidence was the subject of cross‑examination, his trenchant attitude towards the mother having any relationship with the child or in the alternative a resumption of time but with the condition of supervision has now been reconsidered.
The orders sought by the father proposes a resumption of time structured such that over a period of several years, the duration and frequency gradually increases. The father does not seek a condition of supervision.
It is apparent from the father’s presentation that he and the mother are not agreed as to the current medical and behavioural presentation of the child.
The diagnosis of the child with ASD is a relevant consideration, not just because of the diagnosis but rather how that would manifest itself in the ability of the parties to cater for the particular needs of the child.
As was openly discussed with the parties, the Court indicated that an aspect of the proceedings required a consideration of the advantages and disadvantages to the child of the separate proposals of the parties.
The mother’s case was that consequent upon a diagnosis of ASD, she then put in place the necessary allied health professionals, assistance and support to maximise the developmental opportunities for the child. It is her contention that the father has never accepted that the child presents with ASD and as such, the father has been resistant to the holistic involvement of the child with appropriate support including occupational and speech therapy together with psychological and therapeutic support for the child.
During the course of the father’s evidence, he disclosed that he was in possession of a comprehensive assessment report following a psycho-educational assessment conducted in 2022 in order to monitor the development of the child’s reading abilities and in particular to explore whether X presented with a learning disorder.
A relevant consideration is that the first assessment was conducted during the period that the child was in the mother’s primary care.
The second assessment described as the “[T Family Services] Assessment Report” is exhibit “11” in the proceedings.
The father did not deny that whilst he provided information in respect of the child through interview and review of written information, his advice that he had sole parental responsibility, and that the child did not spend time with the mother meant that she was excluded from the assessment.
The full-scale score representing an overall level of cognitive functioning was considered to be in the average range.
Whilst the assessment was predicated upon a former diagnosis of ASD, the child’s presentation as recorded by the assessment team observed that the child’s behaviour and presentation was consistent with autism diagnosis.
In terms of overall phonological awareness, the report considered that the child demonstrated a below average ability to repeat words and whilst stronger when blending words, overall, the child’s score was within the “below average” range.
The test results which assessed the child’s listening comprehension, sentence building and phonological awareness fell within the below average range but were indicative of the child having made some progress. As such, the child’s academic results did not meet the clinical threshold of a diagnosis of a learning disorder.
The report provides for recommendations initially to be considered by the school and the father and then to consider re-engaging speech pathology services to support the child.
There is little doubt that the report is an important and timely assessment of the psychoeducational functioning of the child, and it is likely that the assessment may have been further enhanced with input from the mother.
The father did not give a credible explanation for the non-disclosure of the T Family Services Assessment Report given that he would have been aware of the mother’s interest in the child’s wellbeing and history of management of specialist services for the child.
The father admitted that he had only considered half of the document and agreed that it is likely he told Ms V in 2018 that he did not necessarily accept the mother’s assertion that the child had been diagnosed with ASD.
The potential importance of the extent to which the father is properly invested with the child’s care is highlighted by the following paragraph of the judgment by Judge Jenkins:
47.I have also taken into consideration the ability of the father to meet [the child’s] needs. [The father] is assessed by the DCP to be child focussed and to confidently meet the needs of [the child]. In particular, I am satisfied the father is able to meet all of [the child’s] day-to-day needs, including taking [the child] to her appointments.
The father also agreed that the child had received some school-based counselling which finished in the second term however, this had not been conveyed to the mother.
The father’s evidence focusses on the child’s school reports for 2023/2024 academic years. Consistent with the T Family Services Assessment Report, the child appears to be functioning at either an average or in some areas below average range albeit in a mainstream classroom and environment.
It could not be said that given the child’s presentation and ASD diagnosis that overall psycho‑educational functioning is certain.
The concern which arises from the evidence suggests that it is from year 4 and onwards that presents as the most challenging phase of the child’s education.
The father’s evidence in relation to the child’s presentation, recognition of her difficulties and support needs was poor. Moreover, I find that whilst the father was critical of the mother alleging that she was attempting to alienate the child from him, he was deliberate in his decision to exclude the mother from the assessment and to fail to disclose the T Family Services Assessment Report and other information concerning the child’s progress. For the avoidance of doubt, I reject the father’s evidence that his failure to disclose information was inadvertence.
The father did make an important concession that he considered the mother to be a good parent and did not doubt that she loved the child and that her love was reciprocated by the child.
The father’s concession sits uncomfortably with his initial position that there should be no affective relationship between the mother and the child and his failure to provide information to the mother across a period of almost two years.
He specifically denied that the parties had sexual intercourse on a date in mid-2014 and whilst postulating that the mother alleges the assault occurred on a Monday night when he traditionally attended his parents’ home for dinner, he does not remember that day.
The mother’s evidence is that the father did ring her and ask her to dinner at his parents’ home and it was after the meal that they went home and the father allegedly forced her to engage in sexual intercourse.
The specific allegations of the mother were put to the father and were the subject of clear denial.
Whilst not resiling from the allegation of sexual assault in mid-2014, the mother no longer seeks a finding on the balance of probabilities that sexual assault consisting of nonconsensual sexual intercourse took place.
As considered, there is some uncertainty as to the status of the mother’s allegations made in respect of the father, but it is an appropriate observation that in cross-examination the father was not subjected to robust questioning and as such there is no evidence that suggests the father’s denials should be disbelieved.
It was put to the father that since 2020 when the Court ordered that the parties communicate via email, the mother sent 119 emails to the father of which 80 have gone unanswered with the father initiating six email conversations. The mother’s evidence is that in 2024 she sent 39 emails to the father with only six being the subject of a reply.
The father was candid in his acknowledgment that he did not respond to the mother’s emails because he considered it appropriate “payback” to restrict information about the child. The father agreed that the mother’s emails were neither aggressive nor inappropriate. Furthermore, to the extent that some inquiries of the mother were the subject of further requests, the father accepted that this may have been reasonable given his decision not to respond.
Whilst the father conceded that his behaviour was poor, his evidence was such that his conduct was motivated by revenge and an intention to teach the mother a lesson notwithstanding that it was the mother’s similar purported behaviour which resulted in the child being placed in his primary care.
The father was referred to paragraphs 425 to 431 of the mother’s trial affidavit.
On 9 May 2024 during a Facetime call the child told the mother that she would not be spending time with her on Mother’s Day. The mother records that the child said to her “Dad told me that I have to tell you that you are not my mum and that I don’t love you”. The father acknowledged that the child was distressed and was brought to tears.
In May 2025 the child told the mother via Facetime that she had received a school award. The father conceded that he did not tell the mother about the award and was not able to explain why that information had not been conveyed to her given that the child was apparently proud of the recognition she had received. It was put the father that the child had said the following “Dad said whatever you say is just a lie”.
The father was asked to consider the following email exchange as set out in annexures ‘[MD19]’ and ‘[MD20]’ to the mother’s trial affidavit:
Monday, […] 2023 6:16 PM
Subject: [the child] Birthday
Hi [Mr Fairhall],
Hope […] weekend has been great, and [the child] has had a great weekend celebrating.
With her birthday […], I would like to have a phone call with [the child] to beable (sic) to wish her a Happy Birthday. I don’t mind if it’s a quick call (ie 10 minutes) but I would really appreciate if you would allow this phone call to happen for her birthday. Can’t believe she is nearly 8.
Can you please let me know what phone number I can call to speak with [the child] along with a time slot that would be ok to ring […].
How is [the child] going at school?
Also the […] nurse keeps contacting me following up on how [the child] is. Can you please give me your mobile number so I can pass on, so she can make contact with you?
How’s [the child] therapy occasions going?
Have a great week.
Many thanks [Ms Doughty]
The father’s response to the mother’s email is as follows:
Tuesday, […] 2023 10:17 AM
RE: [the child] Birthday
[Ms Doughty, Mr O and Ms N],
I have given serious consideration to your requests.
As previous communication, I will be strictly adhering to the court order stating that you have no contact with [the child].
Contrary to your assertion, this has nothing to do with power or control, this order was made solely in [the child]’s best interest.
I believe that we have been quite generous in providing the initial updates on [the child]’s transition, whilst receiving nothing in return, specifically [the child]’s medical information which formed part of the court order.
[Mr O’s] unexpected visit yesterday will have confirmed all the information provided to you previously.
Please do not attempt any further contact.
[Mr Fairhall]
The father conceded that at least some of the coparenting difficulties arose from his conduct.
The mother’s request for a phone call to coincide with the child’s birthday was reasonable with the father’s negative response inexplicable. The father also acknowledged that he was not prepared to consider additional time spending to coincide with the mother’s birthday, Mother’s Day or any other special occasions.
Again, the father conceded that his conduct was motivated by concepts of payback, leverage and an intention to teach the mother a lesson.
Given it was the father’s assertion that the mother would not promote a relationship between him and the child as the basis for his application for a change in the primary care arrangements, the father’s evidence demonstrated little or no insight.
As a counterfoil to the criticism of the father in terms of his preparedness to engage inappropriate communication with the mother, it was his evidence that of recent date the parties are better able to communicate. The father had no response when pressed as to why a more benign view of the mother arising from improved communication was not part of his evidence.
It was at this point in the father’s evidence that he withdrew his opposition to the mother attending curricular and extra-curricular activities involving the child.
The father’s evidence was more persuasive in discussing his involvement in the child’s extra‑curricular activities .
I am satisfied that even though the father and the child reside in the home of the paternal grandparents, whilst they have a significant involvement in assisting the father with the child’s care, where he is able to do so he engages appropriately.
At the conclusion of the father’s evidence, he conceded that the risks to the child included some speech and language conditions and the possibility of a further consideration and assessment as to whether the child presented with a learning disorder.
The father also supported a reengagement with the child’s speech pathologist.
It is of some assistance that whilst the father presented as an unimpressive witness, the mother accepts that the child is physically well cared for in the father’s care and that she appears to be looked after and loved. The mother also accepts that the father and the child have developed a strong bond and that “it is imperative that their relationship continues unhindered”.[2]
[2] Mother’s trial affidavit at paragraph 467.
T Family Services Assessment Report
Whilst residing with the father in the home of the paternal grandparents, the child attends L School in year 4.
The school was aware of an earlier diagnosis of ASD, and some speech and language conditions. In 2022 the child underwent a psycho-educational assessment and it was recommended that a further follow up assessment should be undertaken in the next one to two years to consider whether the child presented with a learning disorder.
The child’s current teacher identified that the child presented with learning difficulties in particular, she presented with a difficulty in comprehension. It is apparent that the teacher considered that there might be a connection between an inability to comprehend and a possible diagnosis of a learning disorder.
Exhibit “11” is the T Family Services Assessment Report dated 14 August 2024.
As previously discussed, the importance of the T Family Services Assessment Report is not just because of its existence but rather that it was a document in the possession of the father and not provided to the mother or exchanged as part of discovery in the proceedings until the date of tender on 16 October 2024. It is likely that the father disclosed the existence of the T Family Services Assessment Report when it became apparent that the parameters of the child’s current presentation taking into account the earlier assessment of autism would likely be an important consideration.
Read in conjunction with the 2018 diagnosis of ASD, it provides an uncontested assessment of the child’s current presentation.
Without attempting to be comprehensive of the important detail of the T Family Services Assessment Report, following the administering of various standardised tests designed to explore academic ability and literacy the following provides an appropriate summary of the assessment:[3]
Her average results across Early Reading Skills, Word Reading and Pseudoword Decoding indicated age-appropriate skills in letter-sound correspondence, phonological awareness/decoding. This performance was attributed to the interventions she had received at home and school. However, the results of the Neale (Neale analysis of reading ability) were within the below average to very low range, which indicated difficulties in reading fluency, rate and comprehension. Given the varied literacy results, it was difficult to confirm a learning disorder […] ([…]), given that [the child] is diagnosed with a [language disorder]. Therefore, it was recommended that [the child]’s reading development was monitored and that her academic abilities were re-tested in 1-2 years, to confirm a diagnosis of [a learning disorder].
[3] T Family Services Assessment Report dated 14 August 2024, page 3.
The consequence of the order made 27 January 2023 providing for the father to have sole parental responsibility meant that he provided information as to the child’s background and history with no input from the mother.

Whilst it is likely that there was sufficient other information in particular from the child’s school and her presentation during the assessment process, there is no adequate explanation as to why the mother was not consulted given the clear history is that during her primary care, the mother was significantly invested with the child’s management.
As considered, it is open to find that the father had little regard for the mother and as such did not consider that she would have anything to offer the assessment process.
In summary, even though the assessment identified that whilst the child’s literacy and numeracy skills were within the “average” range, her listening comprehension was within the “low average” range.
What is important for the child’s development and therefore a significant and relevant consideration in the proceedings is that the child’s reading, writing and spelling are closely monitored.
The following recommendations provide an appropriate pathway forward for the child and properly raise a consideration to which of the parties is better able to support the child’s academic development:[4]
It is recommended that the school and father review this report together, to determine what further programs and accommodations may be put in place at school and reinforced at home to support [the child’s] academic development. Personalised and specific learning goals may be continued to be considered and reviewed on a regular basis. [The child] would also benefit from the continuation of available individual or small group literacy and numeracy support at school.
[4] T Family Services Assessment Report dated 14 August 2024, page 8.
A fundamental foundation to the T Family Services Assessment Report, its conclusion and recommendations is an acceptance of the child’s diagnosis of ASD.
The father did not impress as to his purported acceptance of the 2018 ASD diagnosis.
Ms Q
Ms Q is the paternal grandmother of the child. The father continues to reside in his parents’ home.
As a result of orders made, Ms Q was nominated to act as a supervisor initially between the father and the child and then following orders that resulted in the change of primary care Ms Q supervised the child’s time with the mother.
The evidence of Ms Q given during the proceedings was significantly more expansive than that as set out in her trial affidavit filed 27 September 2024 at paragraph 37. The child’s contact with the mother was observed to be without incident other than in March 2024 when the mother identified that the child had evidence of lice infestation in her hair.
Of more relevance, however, was the evidence that even though the maternal grandmother considered that the mother would be angry, upset and likely distressed by the change in the primary care arrangements, to her surprise the mother was calm, courteous and appropriate.
The evidence of the maternal grandmother provided significant assistance in accepting that even though the mother found herself in them most difficult of circumstances, she was able to compartmentalise her distress and focus on her time with the child limited as it was.
Ms P
Annexures “A” and “B” to the affidavit of Ms Y filed 12 July 2018 annexes a copy of the BB Children’s Services Multidisciplinary Assessment for Autism Spectrum Disorder dated 12 May 2018 and an Autism Spectrum Diagnostic Assessment dated 12 May 2018. Both reports were undertaken by Ms P, psychologist and Ms W, speech pathologist.
The report is self-explanatory and in summary, it considered that the child met the DSM-5 criteria for ASD. It highlights that the child’s social communication deficits satisfy the criteria for level 3 which indicates that the child requires “very substantial support” and in respect of restricted and repetitive behaviours, a level 2 assessment is satisfied and indicates that “substantial support is required”.
For reasons that remain unclear, the father required Ms P to give evidence.
Ms P impressed as highly qualified in the area of autism diagnosis. The information that was collected involved the observations of the child in play, at age three years, the parent interview and a comprehensive parent questionnaire.
The cross-examination of Ms P did not diminish her evidence but rather established that from as early as the date of the report, the diagnosis of ASD was clear and unequivocal.
The importance of the evidence of Ms P is not as to her unchallenged diagnosis of ASD but rather to consider that no proper basis existed for the father to not accept that the child presents with ASD.
It also places into context his contention that a prime concern is the purported propensity of the mother to engage the child in unnecessary assessment involving medical and allied health practitioners. The opposite may well be a more accurate finding.
Dr F
The orders of Judge Jenkins made on 27 January 2023 required that the mother forthwith attend for a psychiatric assessment with a psychiatrist nominated by the ICL.
Dr F was nominated by the ICL and following a consideration of a raft of court documents including the judgment of Judge Jenkins, he undertook a psychiatric assessment of the mother in May 2023. A copy of his psychiatric report dated 25 May 2023 is annexed to the affidavit the ICL dated 26 May 2023.
There is no challenge to the professional qualifications of Dr F. He is properly described as a specialist in psychiatry, with College and Association memberships.
Dr F regularly gives psychiatric evidence in criminal, civil, youth and family law cases and his opinions are highly regarded.
Whilst I am of the opinion that unless an order for a party to undergo a psychiatric or psychological assessment is a precondition to a parenting order, I consider that the Court lacks jurisdiction to make a stand-alone order.
Notwithstanding that observation, the mother submitted herself for the assessment to be undertaken without objection. No diagnosis of any mental illness was made although Dr F questioned the credibility of the mother consequent upon her description of an engagement with a psychologist who she alleges suggested that she video tape herself having sex.
As matters have transpired, the mother’s history of her appalling engagement with the psychologist in question is now understood to be accurate and as such, it was not open to Dr F to challenge the mother’s credibility.
Mr G
Mr G is a registered psychologist holding two Degrees. Mr G has held positions in forensic mental health overseas and recognised in his profession.
Mr G is well versed in the requirement to present evidence as an impartial expert. His expertise is unchallenged.
The mother was referred to Mr G for a psychological assessment in circumstances where it was foreshadowed by the father that he considered the mother presented with mental health issues that would be directly relevant to the proceedings and would demonstrate that the mother was not able to support the child’s relationship with the father if placed in her primary care.
Mr G was required for cross-examination and his report as to diagnosis (if any), prognosis and potential impact upon the mother’s ability to parent the child was unchallenged.
In broad terms, Mr G considered that given the support the mother has from the maternal grandmother and her focus on her daughter, to the extent that the mother presented with ADHD and a 2019 diagnosis of ASD, her prognosis was “reasonably good”.
At the time of the assessment, the mother rated her mental health at 9.5 out of 10 and that she was functioning well.
Mr G considered that the mother had sound parenting awareness skill understanding and given that the results of her psychometric measures, she presented as child focussed. That finding was consistent with the history of the mother’s engagement with the suite of medical and allied health practitioners engaged with the child.
Mr G did not consider that the mother was a violent person nor prone to attempt or commit suicide. He disagreed with the assessment by DCP that the mother was not “child focussed” or that she presented with “unstable mental health”. Rather, Mr G considered that the mother did not drink alcohol or use drugs, appeared to be involved in stable employment, was a recipient of NDIS funding and was managing her disabilities well.
Of interest was the evidence of Mr G that corroborated the mother’s evidence outlining the unprofessional conduct of the psychologist who had made unprofessional and inappropriate suggestions to her.
Ms E
The mother relied upon the evidence of Ms E as outlined in a “progress support letter” dated 17 August 2023. The mother sought counselling assistance from Ms E given that she presented her professional qualification as a “[…] person who specialised in the female presentation of Autism Spectrum Disorder via a therapeutic service”.
The mother sought counselling assistance and therapeutic intervention from Ms E since early 2023 which also encompassed the period when the child went into the father’s care. I accept that the mother suffered significant trauma from the orders that reversed the primary care of the child and that she may well have gained support from the therapeutic intervention.
I accept the evidence of Ms E that the mother is likely to continue to seek therapeutic counselling support into the future.
The evidence of Ms E was of concern in that the need for ongoing therapeutic intervention arose from the mother’s eligibility for NDIS funding rather than a considered position of identifying the necessary therapeutic goals and working towards a time when there would be no further utility in ongoing counselling.
However, I am satisfied that the mother is prepared to seek and obtain whatever assistance may be required in order to support a parenting role.
Ms R
Consequent upon an order made on 29 May 2024, Ms R, in her capacity as a Regulation 7 Family Consultant, prepared a Family Assessment Report dated 20 September 2024.
Ms R conducted interviews with each of the parties and the child on 20 August 2024 and set out a significant quantity of filed material in the proceedings that had been forwarded to her.
Ms R holds a Degree and in private practice has prepared family reports and given evidence in court in her capacity as a Regulation 7 Family Consultant for over 10 years.
There was no challenge to Ms R presenting her evidence as a single expert witness.
Ms R adequately summarised the parenting dispute between the parties, their separate proposals and in particular, she identified the issues in dispute to be as follows:
(1)Primary care of the child.
(2)The mother’s mental state and her allegations as to family violence perpetrated by the father.
(3)The mother’s alleged historical difficulty in supporting the child’s time with the father.
(4)The current progress of time spending.
(5)The child’s developmental needs and whether the father was able or prepared to adequately support them.
(6)The parties coparenting relationship.
It is apparent that Ms R brought to account the circumstances surrounding the court order that resulted in the child being placed in the father’s primary care.
It is a reasonable finding by reference to the Family Assessment Report that Ms R considered that the mother had not supported the child’s relationship with the father based upon her allegations of family violence encompassing sexual assault. Ms R was less certain as to whether the mother was now able to properly compartmentalise her concerns in respect of the father going forward to support the child’s relationship with the father even if the child remains in the father’s primary care and she spends limited but unsupervised time with the mother.
Ms R recognises that the sudden transfer of primary care would likely have had a traumatic effect on the mother and given the child’s diagnosis of ASD may have resulted in the child experiencing significant distress.
Ms R considered the extent to which the mother’s presentation inclusive of the psychiatric assessment by Dr F dated 25 May 2023, the mother’s diagnosis of ADHD and possibly ASD and the psychological assessment of Mr G dated 2 May 2024 could be relied upon to better understand the ability of the mother to support the child’s relationship with the father.
The child was observed to separate easily and without distress from the father to engage and interact with Ms R. In an attempt to firstly identify any wishes as may be expressed by the child and then to consider what weight should be attached, the following summary appears in the Family Assessment Report:
80. In relation to her parents, [the child] described her dissatisfaction that her father “won’t let me shave off all of his beard…I don’t like it…he gets food stuck in it”. She described her mother as “nice and loving” and that “she can take care of me a lot”. When asked if her father can also, [the child] responded “he’s at work all the time”, but then confirmed that in the mornings and evenings it is her father who assists her/cares for her. She concluded that the biggest difference (in the primary care) is that her mother did not work outside the home.
Ms R did not doubt that the child expressed strong affection and emotional attachment to the parties but in particular, the mother. When asked to consider where she would like to live, the child readily nominated living in the mother’s primary care and spending limited time with the father. The child is recorded as saying that she would feel “sad” if the Court determined that she should remain living with her father.
An interesting consideration is the extent to which the child had thought about changing schools if she were to return to the mother’s primary care and it is recorded that whilst she enjoyed engaging in her extra-curricular activities, she would be prepared to give this up as well.
Careful consideration was given by Ms R to the observations of interaction by each of the parties with the child. It is a fair summary that the favourable observations of the child with the father did not mirror the less enthusiastic remarks of the child in interview.
An important consideration which was not the subject of detailed exploration by Ms R was the strong relationship between the child and the mother even though at the time of interview the child’s time with the mother had been limited and supervised.
Ms R recorded the mother’s acknowledgment that she now accepted the child had a positive relationship with the father and despite her earlier misgivings, she did not hold a substantial concern for the child’s care.
It is apparent that Ms R remained unconvinced that even though the mother appeared to accept the importance to the child of a continuing relationship with the father, her support may be confected. In a similar vein, Ms R considered that any disclosures made by the child as to her remaining in the primary care of the father may not be reliable.
The child’s current presentation was demonstrative of a positive relationship with the father.
Ms R considered that the child was thriving in the father’s care and had a range of experiences that were beneficial.
The mother’s presentation was such that whilst now supportive of the child maintaining a relationship with the father, she still considered that he did not fully accept the child’s developmental needs and as such might not have the requisite vigilance to engage the services necessary for the child to reach her full potential.
A significant concern of Ms R was that the child might adopt the mother’s negative view of the father resulting in a breakdown of what is considered at present to be a highly beneficial relationship. The concerns of Ms R are adequately set out as follows:
104.During her interview, [the child] confirmed she has some awareness about her mother’s feelings about past time spending with her father, and also considered it unlikely time spending would occur in future due to her mother’s perspective/feelings. This raises concern for the Consultant, given the suspected compromised sense of autonomy [the child] experiences with her mother, and the high likelihood that [the child] will continue to be led by her mother’s perspective. This added to the Consultant’s lack of support for [the mother’s] proposal for primary care also, as it creates significant doubt as to how [the child] will be able to gain an accurate reflection of her father. These concerns have already been voiced by the Court, in their speculation that [the child’s] response to [the father] potentially reflected her mother’s stance/beliefs. Further, whilst [the mother] asserts that she will encourage time spending in the event [the child] returns to her primary care, there has been existing doubt conveyed by the Court as to the mother’s bona fides in relation to this, and in the absence of [the mother] being able to convey a meaningful and detailed insight into her contribution to the past difficulties and to what extent her view has changed, this concern remains.
The concern of Ms R extended not just to a consideration of whether there should be a change in the primary care arrangements for the child but also the extent to which the child should spend unsupervised time with the mother.
In summary, it was considered that the potential for the mother to adversely to impact the child’s relationship with the father could be placed at risk.
Ms R did not have the advantage of the evidence and as discussed, there is nothing that arises in respect of either the psychiatric assessment or the psychological report as to the mother’s functioning that would adversely impact upon her ability to parent the child.
Ms R also did not have the advantage of the father’s evidence wherein he acknowledged even though he recognised the importance of the child’s relationship with the mother, he had not facilitated or promoted the relationship as an act of retribution for the mother’s earlier behaviour. What the father did not consider is that revenge was not in the child’s interests and the mother’s conduct, as considered by the Court was the basis for a change in the child’s primary care.
The recommendations as contained in the Family Assessment Report are summarised as follows:
(1)The father continue to have sole decision making authority on major issues affecting the child but with the obligation to convey significant information to the mother;
(2)The child remain in the father’s primary care; and
(3)The child spend unsupervised time with the mother for three hours on alternate Sundays and that there be a continuation of FaceTime communication.
The assessment undertaken by Ms R cannot establish the truth of specific matters nor the credibility of the parties. It is the task of the Court to bring together the threads of evidence and whilst the evidence of Ms R is to assist the Court in its decision as to what in in the child’s best interests, it is not determinative of the outcome. (see Andrew & Delaine [2009] FamCAFC 182).
A theme that arises from the content of the T Family Services Assessment Report and continued through the evidence of Ms R is that there are significant gaps in the child’s early learning and to a significant degree a crossroads has now been reached where unless there is more active engagement with the child to address learning deficiencies, the child’s progression may be stilted.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and to have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interest.
Subject to the parties seeking a consent order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in ss 60CC(2) and (2A) which places emphasis on the history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.

A consideration of the question of the child’s safety is intended to emphasise a consideration as to how the future may be informed by a past history.
The focus of the relevant provisions of the Act is to ensure the best interests of the children, as opposed to the parties, is a preeminent consideration.
I consider that whilst the Act does not make specific mention of the importance of a child having a meaningful relationship with a parent, it is likely that the best interests of a child will be served if a relationship with a party or parent is maintained providing it is in all the circumstances safe to do so and will be of an advantage to the child.
The mother seeks an order that the child be returned to her primary care and taking into account the distance as between the homes of the parties, that the child spend each alternate weekend and half school holidays with the father. The father’s proposal is less benign in that he seeks the child remain in his primary care and spend unsupervised time with the mother gradually increasing over a number of years.
I do not consider that the issue of family violence or whether the child is at risk in the care of the father is promoted by the mother. I do not ignore the mother’s allegations of the father’s purported conduct leading up to the separation but as discussed, I do not consider that I can be satisfied on the balance of probabilities that the father was the perpetrator of sexual assault as alleged.
Moreover, the mother now concedes that it is of benefit to the child that she has a relationship with each of the parties and subject to a concern that the father may lack the diligence and vigilance necessary to best promote the child’s development, the child is thriving in his care.
It is an important consideration that at present and for the foreseeable future each of the parties will have the support of their maternal and paternal grandparents in terms of accommodation and assistance with parenting requirements. For his part, the father did not mount any effective challenge to the psychiatric and psychological evidence as to the mother’s fitness to parent nor was there any compelling rebuttal to the evidence of the mother that she has gained significant insight into her conduct and is now able to fulsomely support the child’s relationship with the father. To the extent that an issue remains, some uncertainty exists as to the ability of the father to put his differences aside and to promote the child’s relationship with the mother.
It is also an important consideration that the evidence of the paternal grandmother who was tasked with the supervision of the mother’s time with the child was compelling as to the appropriateness of the mother’s conduct given the obvious distress experienced by the mother from the change in primary care.
Section 61D gives consideration to parenting orders and parental responsibility. Section 61D(1) of the Act provides that:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
In the present case, the father seeks a parenting order that allocates sole responsibility to him for making decisions about major long-term issues. The mother seeks an order for joint decision making.
I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.
PARENTING CONSIDERATIONS
The developmental, psychological, emotional and cultural needs of the child
Whilst Ms R considered that the presentation of the parties and the child provided strong support for the father to retain primary care, she was less certain that any significant increase in the time currently spent with the mother pursuant to the interim orders would be to the child’s advantage.
Whilst upon first consideration the proposition that the Court is to consider the advantages and disadvantages of the separate proposals of the parties may be simplistic, I consider that the prime focus must be the best interests of the child as the paramount consideration with the potential impact on each of the parties an important but of necessity a secondary aspect.
The father made a late concession that there is no longer a requirement for the mother’s time with the child to be supervised. The current interim orders do not provide for supervision. There has been no application to suggest that the implementation of the current interim orders has been problematic in particular for the child but also the parties.
The father’s concession is tantamount to his recognition that there is an emotional bond between the mother and the child.
The observations of interaction between the mother and the child support a finding that it is important to this child to maintain and develop a strong relationship with each of the parties.
Whilst Ms R did not consider that significant weight should be attached to the expressed wish of the child to return to the primary care of the mother, there is nothing to suggest that the relationship between the mother and the child is not important.
The mother contends that she now has gained sufficient insight into her conduct and presentation such that the Court can have confidence that she will encourage and support the child’s relationship with the father. The proposition has currency both in terms of the mother’s primary application which is such that the child returns to her primary care or the alternative position which is that the child spends each alternate weekend and half school holidays with her.
As has been conceded by both parties, the physical distance between them is such that more expansive orders in terms of the spend time with party are not practical.
To some extent the evolution of the relationship between the parties and the child has moved beyond matters raised by Ms R in terms of her concern that the mother is able to support the child’s relationship with the father.
A significant tranche of the evidence arises from the involvement of the paternal grandmother in supervising the mother’s time with the child over an extended period.
The maternal grandmother is a credible witness and whilst opinion may vary as to the extent to which the mother has gained insight into her conduct and behaviour via self-reflection and ongoing therapeutic assistance, the evidence of the maternal grandmother being highly complementary of the civil and courteous approach of the mother in what was recognised to be difficult and challenging circumstances for her provides adequate corroboration for the mother’s evidence.
At one level, when the recent conduct of the parties is considered, it is a reasonable finding that the mother impressed in her evidence as engaging in genuine change rather than the father who was not prepared to engage with the mother either because of indifference or possibly explained by his evidence that it was a way of extracting payback.
The child appears to benefit from her relationship with the father and his extended family and at least up until the present, appears to have thrived in his care. It is not suggested that the child would not have found proper support if she had remained with the mother, but it is a recognition, endorsed by the mother that the child is well looked after in the father’s care.
The evidence supports a finding that the child’s best interests are supported by the child spending as much time as is possible in the care of the time spending parent.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s needs
The evidence supports a finding that the needs of the child are appropriately supported in the father’s household. Whilst there is some contention as to the division of duties, the observations of Ms R both during the assessment but also arising from her enquiries with the child’s school is that the father is very much hands on. In coming to that finding, I do not ignore the considerable and beneficial involvement of the paternal grandparents.
An issue of significance between the parties has been the mother’s claim that the father was not prepared to accept that the child had a diagnosis of ASD, that it had the potential for significant adverse impact on the child and that the needs of the child involved active rather than passive management.
There is little doubt that as between the parties, the mother is more attuned and prepared to actively engage in the therapies that are likely to be required by the child.
The issue is relevant not so much for a determination as to the live with arrangements but rather as to a consideration of the competing orders of the parties as to decision making. The father seeks to have the sole decision making responsibility for the child whereas the mother considers that it should be shared.
As considered, the father’s evidence as to his acceptance of the 2018 diagnosis of ASD and the failure to advise the mother of the child’s circumstances and in particular the T Family Services Assessment Report are matters of concern and go directly to the well-being of the child.
The counterfoil to that finding is the father’s late concession that the parties appear to be able to better communicate of more recent date and the evidence of the paternal grandmother as to the appropriate engagement by the mother when her time with the child was required to be supervised.
All things considered, the recent period of primary care by the father and the evidence of the mother as to the therapeutic assistance received by her supports a finding that each of the parties has the capacity to provide for the child’s needs with the caveat that it is likely the mother is more vigilant but perhaps unnecessarily so as to the extent of medical and allied health support for the child.
Advantages and disadvantages of the parties’ proposals
The father seeks to retain the child’s primary care. The advantage to the child arises from the evidence of Ms R and other information relating to the child’s beneficial engagement in her current school.
The consequence of the orders sought by the mother is that the child would be required to leave her school noting that the child attended two schools whilst in the mother’s care and then transitioned to her current school as a result of the orders. There would need to be yet again a further change to the mother’s nominated school if she had the child’s primary care.
In addition, the child would need to leave what has now become her familiar environment to the mother’s home in circumstances where up until recent date, since the making of the interim orders, the child has spent limited time with her.
The potential for the disruption to the current arrangements to be averse to the child requires a consideration of the child’s temperament and resilience in respect of change. Whilst I appreciate that when spoken to by Ms R, the child did not foresee any difficulty in leaving the father’s home, her current school, her social network and her extra-curricular activities, no other evidence is available to independently assess the weight that should be given to the mother’s confidence that a transition into her primary care will be without incident, distress or anxiety.
The relevance of the child’s diagnosis of ASD, now supported by the T Family Services Assessment Report suggests that there is a critical period for the child where fulsome support needs to be made available to the child to stop there from being any regression in terms of academic skills, language, comprehension and phonetics.
There is no evidence that would support the finding that a transition to the mother’s primary care would be without disadvantage to the child. Inherent in the evidence presented by Ms R consequent upon enquiries with the child’s school, it is apparent that the child is well settled, and the mechanics involved in the preparation of the T Family Services Assessment Report strongly points to the school being proactive and professional in the assistance able to be provided to the child.
I do not dismiss the child’s wishes that seeks a return to the mother’s primary care, the evidence is such that at this stage it is lesser consideration and other countervailing factors.
There is however evidence that supports the child spending as much time with the mother as the circumstances of the parties will allow.
Supervision is no longer a requirement by the father and I consider that there is no evidence to support the overly cautious approach that the father seeks in terms of a graduated increase in the child’s time spent with the mother.
Ms R did not have the advantage of hearing the evidence of the parties nor of the paternal grandmother.
To a significant extent, the desire of the child to return to the mother’s primary care is likely to be substantially satisfied by the child spending time with the mother as sought by her in terms of the alternate proposal.
DECISION MAKING
I accept the evidence of the mother that it fell to her to coordinate the various health services necessary to properly support the child’s development. The father’s evidence was unimpressive concerning his belated acceptance of the ASD diagnosis and its consequences.
Of real significance is the clear evidence arising from the T Family Services Assessment Report that the child is at a critical crossroad in terms of the support necessary to ensure that she is able to advance academically.
There is some concern as to her reading and comprehension and some indicators that at least support a vigilant approach to the potential for the child to be diagnosed with a learning disorder.
As between the parties, the mother has much to bring to the support that the child needs.
To a significant degree, the child has the advantage of two loving parents and the paternal and maternal extended families who are all invested with the child’s care and support.
The mother’s evidence as to the extent to which the father historically was prepared to communicate with her is accepted. The father’s inability to adequately explain his reticence to respond to the mother’s enquiries, other than to suggest that he considered her to be hypervigilant, was unsatisfactory.
The orders that are to be made by the Court should focus on what would represent the best possible outcome for the child and then to discount such an outcome the evidence would suggest that it was not in the child’s best interests.
The order sought by the father for sole decision making is likely to lead to an outcome that would provide little information to the mother about the child’s development and would not enable her to bring to account her considerable knowledge of what might benefit the child into the future.
If it was suggested that the change from the mother’s primary care to the father was necessitated by the proposition that she was overly vigilant as to engaging the child with allied health services, then that is not supported by the evidence. It is likely that the mother was not prepared or able to support the child’s relationship with the father and to the extent that the mother promoted and/or was prepared to accept allegations that the father may have engaged in inappropriate conduct with the child, it was not reasonable or proper for her to do so.
Given that I am satisfied that the mother has gained significant insight into her behaviour the risk of the mother not supporting the father’s relationship as considered by Ms R, is now no longer necessary.
Given the father’s concession that the parties are better able to communicate with each other and the overarching needs of the child for the best possible support, I consider that there should be an order for joint decision making. Each of the parties need to be invested with the child’s care and support.
OTHER MATTERS
I have given careful consideration to the orders sought by each of the parties and the ICL.
I propose to order that the parties have joint decision making responsibility for the child.
The child will remain in the primary care of the father and will spend time with the mother every second weekend from the conclusion of school Friday (or 3.30 pm) to the commencement of school Monday (or 9.00 am).
Each of the parties consider that the child should continue to communicate with the other via FaceTime. Such an order is supported by the ICL. It is important that given the geographical distance between the parties, whatever arrangement can be put in place that maximises the continued relationship between the child and each of the parties is important.
The orders sought by the mother as to the arrangements in respect of the Christmas period encompassing Christmas Eve to Boxing Day and then Easter are sensible and broadly consistent with the orders sought by the father and supported by the ICL.
It is a necessary consequence of the matters raised that the child should spend equal time with each of the parties during school holidays and I propose to fall in with the orders as sought by the mother in that regard.
As has been considered in terms of the implementation of the interim arrangements, I consider that the child’s interests are best served if the parties handover at a point broadly equidistant between them namely, the Service Station at Town J when changeover does not occur at the child’s school.
It is reasonable that arrangements be made for the parties to spend time with the child on her birthday and similarly that she is able to communicate by FaceTime with each of the parties if not in their care at that time.
The order for joint decision making invites an appropriate exchange of medical information and fulsome engagement with the child’s school.
The Court is assisted by the involvement of the ICL however, in terms of the final orders that are to be made, there is no further reason for the appointment to continue and the order is to be discharged.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 19 December 2024

File number(s):	ADC 1712 of 2016
Judgment of:	BERMAN J
Date of judgment:	19 December 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the mother was the child’s primary carer – Where interim orders were made in 2023 for the reversal of primary care – Where the Court ordered nominal time between the mother and the child – Where the mother was considered to be a psychological risk and unable to support a relationship between the child and the father – Where the mother now seeks orders for primary care – Consideration of risk – Consideration of whether the mother would adversely impact the child’s relationship with the father – Where the evidence suggests that the mother has gained insight into her behaviour and supports the relationship – Consideration of whether the father can promote a relationship between the child and the mother – Where the father concedes he did not facilitate or promote the relationship between the child and the mother as an act of retribution – Consideration of best interests – where the child is settled at her school – Consideration of the geographical distance between the parties – Consideration of impact of the child changing schools – Where the child’s needs are being appropriately met in the father’s primary care – Where the evidence supports a finding that the child’s best interests are supported by the child spending as much time as is possible in the care of the time spending parent – orders for the child to remain living with the father. FAMILY LAW – DECISION MAKING – where the father seeks sole decision-making responsibility – where the mother promotes equal decision making responsibility – Consideration of the child’s autism diagnosis – Where the mother asserts the father does not accept the diagnosis – where the father asserts the mother takes the child to unnecessary medical appointments – where the father now concedes the child’s autism diagnosis – Consideration of whether the father can accept the child’s autism diagnosis and appropriately support her – where the father may lack the diligence and vigilance necessary to best promote the child’s development – Orders made for joint decision making.
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,61D, 69ZT
Cases cited:	Andrew & Delaine [2009] FamCAFC 182 Doughty & Fairhall (2022) 65 Fam LR 537 Doughty & Fairhall [2024] FedCFamC1F 383 L v T (1999) FLC 92-875 M v M [1988] HCA 68 Maluka & Maluka [2012] 47 Fam LR 272 Vasser & Taylor-Black (2007) FLC 93-329 [2023] FedCFamC2F 113 (unreported)
Division:	Division 1 First Instance
Number of paragraphs:	329
Date of hearing:	14 – 18, 21 & 22 October 2024
Place:	Adelaide
Counsel for the Applicant:	Ms Boyle
Solicitor for the Applicant:	Adelaide Family Law
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Pittaway Lawyers and Conveyancers
Counsel for the Independent Children’s Lawyer:	Ms Olsson
Solicitor for the Independent Children’s Lawyer:	Silkwoods

ADC 1712 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DOUGHTY Applicant
AND:	MR FAIRHALL Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	19 DECEMBER 2024