Duff & Nalani - [2023] FedCFamC1F 328

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Duff & Nalani [2023] FedCFamC1F 328

File number(s): BRC 12172 of 2020

Judgment of: CAREW J

Date of judgment: 3 May 2023

Catchwords: FAMILY LAW – CHILDREN – Change of residence – Where the mother’s serious allegations of family violence severely restricted the father’s relationship with the child for two and a half years – Where the mother’s allegations of rape and choking against the father are found to be false – Where there is overwhelming evidence in support of the mother’s concession that she perpetrated family violence against the father – Where the mother engaged in coercive and controlling behaviour designed to manipulate the father into remaining in the relationship – Where the evidence raises a real possibility that the mother has a personality disorder – Where the Court cannot be satisfied that the mother has the capacity to facilitate an ongoing relationship between the father and the child if the child remains in the mother’s primary care – Where the family report writer expressed optimism at the child’s ability to cope with a change of residence into the father’s care – Where an order for a change of residence to the father is in the best interests of the child – Where the child will live with the father and spend time with the mother, supervised for a period of two years to enable the mother to undergo intensive therapy

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley [2022] FedCFamC1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Division: Division 1 First Instance

Number of paragraphs: 158

Date of hearing: 20 – 24 March 2023

Place: Brisbane

Counsel for the Applicant: Mr R Horsley

Solicitor for the Applicant: Legal Aid Queensland

Counsel for the Respondent: Mr T Jordan

Solicitor for the Respondent: O’Neill Family Law

Counsel for the Independent Children’s Lawyer Ms K Oakley

Solicitor for the Independent Children’s Lawyer Forest Glen Lawyers
ORDER

BRC 12172 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DUFF

Applicant

AND:
MS NALANI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

3 MAY 2023

THE COURT ORDERS THAT:
Parental responsibility
1.The father shall have sole parental responsibility for the child X born … 2019 (“the child”).
2.In the exercise of the father’s sole parental responsibility, he shall:
(a)inform the mother in writing (via the Parenting App, ‘Our Family Wizard’, as agreed to by the parents) about decisions to be made 21 days prior to making any decisions, save in the case of an emergency and then such notice to be provided as soon as practicable;
(b)seek a response from the mother in writing about the decision to be made, with the mother to have 7 days to provide such a response; and
(c)consider the mother’s response and keep in mind the best interests of the child as his paramount consideration.

3.The father shall be responsible for the daily care, welfare, and development of the child when she is living with or spending time with him.
4.The mother shall be responsible for the daily care, welfare, and development of the child when she is living with or spending time with her.

Living arrangements, spending time arrangements and communication
5.The child shall live with the father.
6.The mother shall spend time and communicate with the child as agreed in writing between the mother and father and failing agreement as follows:
(a)subject to paragraph 7 of this order, for two years from the date of this order:
(i)once each week for two hours on a supervised basis at the B Contact Service or such other contact service as agreed in writing after the mother relocates to Region C;
(ii)on special occasions such as the child’s birthday or Christmas, at such times as can be arranged with the contact service;

(b)for eight weeks from the date of this order:
(i)by the mother sending a video of no longer than two (2) minutes, a photo, or a text message to the father’s mobile telephone no more than once per day; and
(ii)by the father sending a video of the child or a photo of the child to the mother’s mobile telephone no more than once per day;

(c)after eight weeks from the date of this order:
(i)by telephone/FaceTime each Tuesday and alternate Thursday between 6.00pm and 6.30pm;

(d)subject to paragraphs 7 and 8 of this order, after the expiration of two years from the date of this order:
(i)for six hours each Saturday and Sunday for a period of eight weeks;
(ii)after the expiration of eight weeks, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday or 5.00 pm Monday if the Monday is a public holiday, SAVE THAT if the mother is living in Region C, the alternate weekends commence on Thursday after school and conclude on Monday before school or Tuesday if the Monday is a public holiday;
(iii)after the commencement of alternate weekend time, for the first half of all school holidays in even numbered years and the second half of all school holidays in odd numbered years;
(iv)on Mother’s Day weekend from after school Friday until before school Monday;
(v)on the child’s birthday when she is not otherwise spending time with the mother, from 3.00 pm to 6.00 pm if a school day or from 1.00 pm to 6.00 pm if a non-school day.

7.Upon the mother providing to the father a written undertaking from each of the maternal grandmother and maternal grandfather:
(a)that they have read the Reasons for Judgment dated 3 May 2023;
(b)that they understand their role as supervisor is to protect the child from harm and to intervene and prevent harm, and if necessary, terminate the time the child is spending with the mother and return the child to the father’s care; and
(c)that they each agree to provide a supporting presence to the child and the mother by one or the other of them remaining in company of the child and the mother at all times while the mother spends time with the child as provided for in this order;

THEN:
(d)the mother’s time with the child may occur as provided for in paragraph 6(d)(i), (ii), (iv) and (v) prior to the expiration of two years from the date of this order.

8.After the expiration of two years from the date of this order, the mother shall provide to the father a written report from her treating psychiatrist and/or psychologist confirming:
(a)that they were provided with and have read the following documents:
(i)a copy of this order;
(ii)family reports prepared by Ms D on 8 June 2021 and 6 March 2023;
(iii)psychiatric assessment of Dr E dated 2 June 2022; and
(iv)a copy of the Reasons for Judgment of the Honourable Justice Carew dated 3 May 2023.

prior to commencement of therapy with the mother; and
(b)that the mother has addressed the mental health issues and/or personality disturbance and/or personality disorder discussed in the Reasons for Judgment; and
(c)that in the opinion of the treating psychiatrist and/or psychologist, the mother does not present a risk of harm to the child;

AND UPON THE MOTHER COMPLYING WITH THIS PARAGRAPH
(d)the mother’s time with the child will no longer be required to be supervised either at a contact service or by the maternal grandparents as provided in paragraph 6 of this order.

9.Nothing in this order is intended to restrict the ability of the maternal grandparents to spend time with the child at the contact service while the mother is spending time with the child at the contact service in the event that the maternal grandparents do not provide the undertaking referred to in paragraph 7 of this order.
10.From the commencement of the child spending school holiday time with the mother, the mother and father shall facilitate the child communicating with the other parent:
(a)during all school holiday periods by telephone/FaceTime each Tuesday and Thursday between 6.00pm and 6.30pm; and
(b)at any reasonable time that the child expresses a desire to speak with the other parent;

on the basis that each parent shall facilitate such communication, ensure the child is able to receive the telephone/FaceTime call, and have privacy during the conversation.
11.Notwithstanding any other provision of this order, the child shall spend time with the father on Father’s Day weekend each year from after school Friday until before school Monday.
12.Upon the commencement of the child spending school holiday time with the mother, and notwithstanding any other provision of this order in relation to school holidays, the child shall spend time with the mother and father over Christmas as follows:
(a)in odd numbered years, with the father from 3.00pm Christmas Eve until 3.00 pm Boxing Day and with the mother from 3.00 pm Boxing Day to 3.00 pm on 28 December;
(b)in even numbered years, with the mother from 3.00 pm Christmas Eve until 3.00 pm Boxing Day and with the father from 3.00 pm Boxing Day until 3.00 pm on 28 December.

Changeovers
13.Unless otherwise agreed in writing between the mother and father, changeovers are to occur inside McDonalds F Town at G Street, F Town (“McDonalds F Town”) until the child commences school, and thereafter at the child’s school during school term and at McDonalds F Town during school holidays.
14.The parents shall:
(a)be prompt to changeover and notify the other by text message if they are to be more than five minutes late for changeover;
(b)be polite, respectful, and courteous to the other in the presence or hearing of the child;
(c)not discuss any parenting matters at changeover that may subject the child to conflict; and
(d)use their best endeavours to ensure anyone accompanying them at changeover is polite and courteous to the other parent and does not cause any conflict that the child may be exposed to.

Obligations imposed on the parents
15.Within 30 days of this order, the mother shall attend upon a suitably qualified psychiatrist and/or psychologist to seek on-going therapy/treatment to address any mental health issues and/or personality disturbance and/or personality disorder and to seek support with regards to parenting and co-parenting support and strategies, and to continue with therapy/treatment for so long as recommended, and the mother is directed to forthwith provide to her treating psychiatrist and/or psychologist:
(a)a copy of this order;
(b)family reports prepared by Ms D on 8 June 2021 and 6 March 2023;
(c)psychiatric assessment of Dr E dated 2 June 2022; and
(d)a copy of the Reasons for Judgment of the Honourable Justice Carew dated 3 May 2023.

16.The father shall continue to attend, for so long as recommended, upon Ms J, or such other mental health practitioner engaged by him, to seek support with regards to parenting and co-parenting support and strategies, and the father is directed to forthwith provide to that person:
(a)a copy of this order;
(b)family reports prepared by Ms D on 8 June 2021 and 6 March 2023;
(c)psychiatric Assessment of Dr E dated 2 June 2022; and
(d)a copy of the Reasons for Judgment of the Honourable Justice Carew dated 3 May 2023.

17.The mother and father shall:
(a)keep the other parent informed at all times of their residential address, landline/ mobile contact telephone numbers and e-mail;
(b)keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the child and authorise the practitioner to provide the other parent with information that they are lawfully able to provide about the child at the other parent’s expense, and this order authorises any treating medical practitioner to release the child’s medical information to the parents;
(c)inform that other parent as soon as reasonably practicable of any emergency medical condition, significant health issue or significant illness suffered by the child;
(d)consult the other parent prior to enrolling the child in sport or other extra-curricular activities that will impact the others parent’s time and acknowledge that each parent is able to attend any sporting or other extra-curricular activities the child participates in during any time that the child is in that parent’s care;
(e)advise the other parent in writing of their intention to travel with the child to any location outside of a radius of 250 kilometres from their usual residence, with such notice to be provided at least 48 hours prior to the intended travel, including details of the address where the child will be residing, contact telephone numbers, and the date of intended departure and return.

18.During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully and refer to the other parent as “mum”, "dad", "mummy”, or “daddy” as the case may be;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Access to educational information
19.This order authorises the day care facilities and schools attended by the child to give each parent information about the child’s education, progress and other day care/school related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the requesting parent’s cost).

Communication between the parents
20.By agreement between the parents, they shall use the “Our Family Wizard” Parenting App or such other platform that they may agree upon in writing and will ensure they pay for any subscription and annual cost for such communication App and agree to inform the other parent promptly about:
(a)age-appropriate developmental stages that impact on the care of the child;
(b)start and finishing time and locations of any special requirements of any extra-curricular activity that the child is scheduled to attend during a relevant period;
(c)any special medication the child requires;
(d)any special homework, assignment or school work the child is required to carry out; and
(e)any other unscheduled or periodic activities or events of which the other parent should be aware.

21.The parents shall ensure that all communications between them are respectful and not used to insult the other parent.
22.In the event of emergency, the mother and father shall communicate by text message.

Miscellaneous
23.All outstanding applications are otherwise dismissed.
24.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this order create and the particulars of the consequences that may follow if a person contravenes this order and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in this order.

IT IS FURTHER ORDERED
25.The mother shall not remove the child from Court Children’s Service, where she was delivered by the mother on 3 May 2023, other than by order of this Honourable Court.

IT IS NOTED THAT:
A.In preparation for the delivery of Judgment the mother was requested to bring the child to Court Children’s Services on Level 3, Harry Gibbs Commonwealth Law Courts, North Quay and Tank Street, Brisbane by no later than 12.30pm on Wednesday, 3 May 2023 and has done so.

IT IS FURTHER NOTED
B.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
C.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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

X is four years of age and the only child of a relationship between her parents, Mr Duff and Ms Nalani. To assist in the anonymisation of these Reasons, I propose to refer to X as “the child”, Mr Duff as “the father” and Ms Nalani as “the mother”.
The child has always lived with her mother. As a result of serious allegations made by the mother against the father, the child’s relationship with her father has been restricted for the past nearly two and a half years, to two hours each alternate Wednesday, supervised at a contact centre. During the trial, the mother abandoned her case that the father should spend no time with the child and indeed proposes that the father spend unsupervised time with the child. The father wants the child to live with him contending that this is the only way the child can have a relationship with both parents.
The parents’ brief relationship is chronicled in the estimated 27,000 text messages exchanged between them. While only a small proportion of the 3,500 pages of text messages are in evidence, many more were the subject of cross-examination and concession. The text messages reveal a very troublesome relationship in which each parent at times engaged in appalling abuse of the other and at other times exclaimed their deep love and affection.
For the reasons which follow, I have found that the mother has made false allegations of rape and choking against the father and has engaged in coercive and controlling behaviour designed to manipulate the father into remaining in a relationship with her. I have concluded that the impact of the child spending unsupervised time with the father is likely to have a significant impact on the mother’s mental health which may even put the child’s life a risk. I have also concluded that the only way the child can maintain a meaningful relationship with both parents is for her to live with the father and spend time (supervised for at least two years) with the mother, while she undergoes intensive therapy.
WHAT PARENTING ORDER IS SOUGHT BY THE PARTIES?

On 13 February 2023, the father reluctantly amended his application to seek an order that the child live with him. The father makes no criticism of the mother’s general care of the child. It is perhaps fair to observe that the father only ever wanted to spend ‘normal’ time with his child, but in the absence of a belief that such a relationship will be possible if she remains living with the mother, he now proposes that he have sole parental responsibility for the child and for the child to live with him. The father further proposes that the mother spend supervised time with the child at a contact centre until 1 January 2024 or, if the maternal grandparents undertake to be “present with, and responsible for supporting, the mother and the child”, then alternate weekends in the presence of one or both of the maternal grandparents. The precise terms of the order sought by the father (including in the alternative) are set out in exhibit 16.
The father is funded by Legal Aid Queensland.
The mother’s case drastically changed during the trial. Her position at the commencement of the trial was that the father should spend no time with the child. Then, on day two of the trial, the mother withdrew from her proposed order even any requirement for the father’s time with the child to be supervised. On day five of the trial, the mother also abandoned her application to relocate with the child to K Town, Queensland or L Town, Queensland. The mother now contends that if the child remains in her primary care she will relocate to Region C, where the father lives, in order to facilitate the child having a meaningful relationship with both parents. The mother proposes that she have sole parental responsibility and that the child continue to live with her.
Exhibit 2 no longer accurately sets out all of the terms of the order sought by the mother, as further amendments and concessions were made during submissions. In particular, the mother now proposes that the child spend alternate weekends from Thursday to Monday with the father (after a gradual introduction of unsupervised time and overnight time). In the alternative, if the child lives with the father, the mother proposes an eventual equal time arrangement (if she is living within 50 kilometres of the child’s school), broken up over each fortnight such that the child spends two nights with her mother, two nights with her father, and then five nights with each parent.
The mother’s parents have largely funded the mother’s legal fees, which are estimated to be in excess of $200,000 by the conclusion of the trial.
The independent children’s lawyer (“ICL”) recommends that the child live with the father, that he have sole parental responsibility, and that the mother’s time with the child be supervised initially at a contact centre for two hours each week, but after eight weeks, time be extended gradually to alternate weekends, supervised and supported by one of the maternal grandparents indefinitely. The precise terms of the order sought by the ICL are set out in exhibit 17 (with some minor changes made during submissions).
ISSUES
The parties identified the following issues as requiring determination:
(1)Has the father perpetrated family violence against the mother, including sexual assault? (concessions were made by the mother in relation to this issue, as discussed below)
(2)Has the mother perpetrated family violence against the father?
(3)What impact, if any, would the child spending time with the father have on the mother’s mental health?
(4)Does the mother have the capacity to support a relationship with the child and the father?
(5)Does the mother pose an unacceptable risk of emotional harm to the child by making and maintaining false allegations, if found to be false, of sexual assault and other physical violence perpetrated on her by the father?
(6)What impact, if any, does the mother’s mental health have on her capacity to meet the ongoing needs of the child?
(7)What impact would the child moving to live with the father have on the child’s relationship with the mother?
(8)Will the child be emotionally harmed if ordered to move to live with the father?
The following issues were abandoned by the mother:
(a)Does the father pose an unacceptable risk of harm to the child by reason of family violence?
(b)Is the mother’s mental health likely to deteriorate if she is unable to relocate to K Town with the child and what impact is that likely to have on her parenting capacity?
(c)Are there practical impediments to the father maintaining a relationship with the child if she relocates with the mother to K Town able to be satisfactorily addressed?
(d)Should the child’s surname be changed from Duff to Nalani?
The mother concedes that the father does not pose an unacceptable risk of harm to the child and contends that she came to that realisation after hearing and observing the father and his mother give evidence, although the mother was unable to identify anything in particular about their evidence which informed her adjusted view.
Although I regard the concession made by the mother, i.e. that the father does not pose an unacceptable risk to the child, to be properly made, the assessment of risk and the obligation to ensure that an order does not expose a person to family violence remains a determination for the Court. The assessment of risk is, of course, concerned with possibilities of future harm and in this case, while the father concedes perpetrating family violence against the mother as particularised at [60] of these Reasons, the risk posed by the father of future harm to the child from family violence or from exposure to family violence is low. The reasons for that assessment will become apparent.
As previously noted, the mother no longer proposes to relocate to K Town or L Town.
Even if the mother had not abandoned her application to relocate with the child to K Town or L Town, I would not have found that such an arrangement would be in the child’s best interests. The distance between the parents would have been too great and would have impeded the child having a meaningful relationship with both parents.
BACKGROUND
The father is 27 years of age and employed full-time as a tradesperson. He resides with his parents at Suburb M in Region C. The father has a child with another woman, Ms N, although they are not and never have been in a relationship. The father met Ms N online in 2021. The child, Y, was born in 2022. Y lives in City P with his mother and spends time with the father every second weekend. The father and Ms N appear to have an amicable co-parenting relationship, and Ms N is contemplating relocating to Region C. Ms N has another child, aged four, who has no current relationship with her father.
The mother is 23 years of age and is not currently employed. She receives a parenting payment and other benefits from Centrelink, in the amount of $1,300 per fortnight. She lives with her grandmother and her grandmother’s boyfriend in Q Town, Queensland for part of the week and for the other part with her parents in L Town, who recently obtained rental accommodation there. The mother previously lived with her parents in Q Town, prior to their interim move to K Town, Queensland in 2022. The mother’s parents have put their permanent relocation to K Town on hold.
The father and mother first met in 2018 in Q Town. The mother met up with the father and his friends to purchase an illicit substance from the father. The father disagrees with some of the mother’s recollection of events, clarifying that it was his friend selling the drug to the mother, not him. However, the father concedes he was present.
The parents commenced a de facto relationship in 2018 and separated a year later in March 2019. The parties briefly reconciled in late 2019 before separating on a final basis on 6 February 2020.
X is the only child of the relationship and was born in 2019.
In mid-2019, and while separated from the mother, the father relocated to Region C to live with his parents. The child was several weeks old at the time. The father contends that while he did not want to leave Q Town as he had a good job there and the support of friends, he felt that he “could not continue to live close to [the mother] and the roller-coaster we seemed to be on” and he believed that “making the break would reduce the stress, anxiety and upset that [the mother] and I both seemed to be experiencing”.
In June 2019, the mother informed the father that she would be coming to Region C to visit a former boyfriend called Mr R and that if they (she and Mr R) got back together she would relocate to Region C. The mother had previously told the father that Mr R had raped her during their relationship.
On informing the father of her planned visit, the mother extended an offer to “bring [the child] over and drop her off for a bit”. The father accepted this offer, sending the mother a text message that his aunt had offered her home for the visit. The mother proceeded to rescind her offer to leave the child alone with the father, indicating a fear the child would not be returned to her.
The father, paternal grandmother and paternal aunt spent time with the child in Region C the following day while the mother remained outside (for the majority of the five hour visit) talking to the father’s aunt. As it turned out the mother did not visit Mr R during her visit to Region C.
On her way home to Q Town that evening, the mother (or the mother’s friend, Ms S, with the mother’s knowledge) sent a number of text messages to the father representing that the mother and child had been involved in a car accident. A photograph of the mother’s car purporting to depict the damage to the mother’s motor vehicle was sent to the father. The mother conceded during the trial that the photograph was in fact taken after an accident she was involved in 12 months prior.
The following day, the mother sent the father a series of text messages suggesting that the alleged car accident the day before was, in fact, a deliberate act by her. As already noted, the child was in the car with the mother at the time of the alleged accident. The father arranged for police to undertake a welfare check on the mother.
On 9 July 2019, the father’s then lawyer wrote to the mother proposing a parenting agreement which would enable the father to spend regular time with the child. The mother replied, through her lawyer, refusing the proposal.
The father spent little time with the child between June and November 2019. I accept that this occurred, at least in part, because the father wanted to avoid spending time with the mother, in circumstances where all proposals by the mother for the father to spend time with the child during that period involved her being present.
The mother commenced a brief relationship with a Mr T in late 2019 but the relationship ended less than a month later. The mother and father reconciled in late 2019.
On 27 January 2020, the parents had an argument while the father was driving. The father hit the sun visor with such force that it cracked the windscreen. The father contends there was already a crack in the windscreen. The child was in the car.
The parents separated on a final basis on 6 February 2020.
In February 2020, the father and paternal grandmother spent time with the child while the mother attended a hairdressing appointment.
On 19 February 2020, the mother sent the father a series of text messages suggesting she would end her own life. The mother later informed police that she did not mean what she said in the text messages to the father. The father travelled from Region C to Q Town and the parents entered into a parenting agreement for the father to spend overnight time with the child on each alternate weekend.
In late February 2020, the father spent time with the child at a friend’s home in Q Town. The mother cut the visit short.
In March 2020, the father applied for a protection order against the mother, after receiving text messages from the mother on 1 March 2020 (and the days following) accusing him of being a rapist. The father sought an order preventing the mother posting about him on social media after discovering that the mother had made a number of online posts denigrating him, referring to him as a “drug addict” and alleging he had raped her.
The mother applied for a protection order against the father the same day.
In August 2020, mutual five year final protection orders were made by consent on a without admissions basis.
On 4 September 2020, the father commenced parenting proceedings in the Federal Circuit Court (as that court was then known).
On 20 October 2020, an order was made for the father to spend supervised time with the child at the B Contact Centre. An ICL was appointed and a family report was ordered. The first family report was released on 10 June 2021.
On 14 July 2021, the interim supervision order was continued. The order made on this date noted that the case “involves significant issues of sexual abuse of the mother and the effect, if found to be true, that this will have on the mother’s capacity to facilitate time between the child and the father”.
On 24 August 2021, the matter was transferred to this Court. The order noted that the matter involved “allegations of high level violence including sexual violence, allegations of rape and coercive control”.
The matter was referred to my docket in May 2022 and originally listed for trial in December 2022 for five days. All parties sought an adjournment of the December 2022 trial dates in order to obtain an updated family report.
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”), s 43 of the Act requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M & M”).
[4] Ibid.
[5] M v M (fn 3); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93-344 at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[12]
I turn now to consider the issues in this matter.
[12] Banks & Banks (2015) FLC 93–637.
HAS THE FATHER PERPETRATED FAMILY VIOLENCE AGAINST THE MOTHER, INCLUDING SEXUAL ASSAULT?
As already noted, the mother concedes that the evidence relied upon by her in relation to sexual assault, including rape, does not establish her allegations to the requisite standard of proof i.e. on the balance of probabilities. The mother nevertheless maintains her allegations that the father digitally raped her on an unknown date in September 2018 and raped her on an unknown date in February 2019 and choked her in January 2020.
The father seeks a positive finding that he did not rape or choke the mother.
Despite the mother’s allegations of rape and choking not being proven, the allegations remain of relevance in the broader assessment of any risk of harm posed by the father, and in the particular circumstances of this case, in the assessment of any risk of harm posed by the mother.
Family violence
The father concedes perpetrating family violence against the mother by: damaging, in anger, the windscreen of a car in which they were travelling on 27 January 2020, thereby causing the mother to be fearful; being verbally abusive on numerous occasions during and after their relationship; making repeated derogatory taunts in the form of name calling; and accessing the mother’s phone on one or two occasions to monitor her contacts. The father denies allegations of physical violence including sexual assault and choking.
Allegations of sexual assault
The mother alleges two incidents of sexual assault/rape of her by the father during the relationship, the first on an unknown date in September 2018 and the second on an unknown date in February 2019.
Prior to the September 2018 allegation, the mother contends that on 24 August 2018, while staying at the father’s parents’ home, the father was “extremely rough” with her during consensual intercourse. The mother contends that “it felt hateful” and that this was the first time she remembers feeling scared of the father.
The father points to the implausibility of the mother’s allegation that he had engaged in “hateful” sex with her on 24 August 2018, and that she was scared of him, when regard is had to the mother’s series of text messages to him on 25 August 2018:
At 9.20 pm
I
At 9.20 pm
Want
At 9.20 pm
To
At 9.20 pm
Have
At 9.20 pm
Sex
At 9.20 pm
With
At 9.21 pm
[…]
At 9.21 pm
[…]
At 9.21 pm
[…]
At 9.22 pm
I’m
At 9.22 pm
Kidding
At 9.22 pm
Daddy
At 9.22 pm
Please
At 9.22 pm
Fuck
At 9.22 pm
Me
At 9.23 pm
[Emoji indicating sexual intercourse]
At 9.23 pm
[Emoji of engagement ring]
At 9.23 pm
Put a ring on my finger first
The father responded to the last text message by stating “I did” and the mother responded “Wasn’t an engagement ring”.
As to the September 2018 incident, the mother contends that it occurred after the father had returned home from the pub where he had been drinking beer:
287. … [H]e sat with me on the couch. He smelt like beer. Initially he was sitting under my legs. He asked me to move and put rest (sic) my head on his lap. I did this. When I was lying there, [the father] pulled me over so that my torso was on his lap. He then tried to move his right hand under my underwear. I thought he was wanting to have sex so I said to him “No, I don’t want to have sex.” [The father] then held my back down with his left hand whilst with his right hand he inserted his finger inside my vagina and moved it in and out. It hurt, so I said “Ouch. That hurts.” I started to get up from [the father], at the same time he got up and pushed me to the side. He then picked up a cushion/pillow from the couch and threw it hard in my face. The force of the pillow hitting my face caused my face to sting in pain. I said “Ouch. That hurt.” [The father] then said “Get the fuck over it. If you would just have sex with me, then maybe I wouldn’t need to hit you.”
There are inconsistences in this version of the alleged digital rape compared with the version contained in the mother’s application for a protection order dated March 2020. In the protection order application:
(a)The mother alleged that the father was drunk rather than “smelt like beer” as she says in her evidence in chief;
(b)The mother makes no mention of the digital rape hurting her, or saying “ouch, that hurts” in relation to the digital rape;
(c)The mother alleges that after the digital rape the father “tried to have sex” with her and she said “no” whereas in her evidence in chief she says it was before.
The second incident is alleged to have occurred in February 2019, after the father returned home from drinking with friends, as follows:
285.… He had been drinking a lot and I could smell the alcohol on him as soon as he came inside the home. I asked [the father] to sleep on the lounge as he smelt so bad from the alcohol… I walked into the bedroom and when I got close to the bed, I felt [the father] push me with both of hand hands on my back. I landed with my stomach down on the bed. I was about seven (7) months pregnant. [The father] then began to pull at my pyjamas. I was wearing a shirt and knickers. He kept saying things like “We’re having sex.” I remember saying multiple times, “No”. He pushed my head into the bed a couple of times. It was hard to breath. I remember him saying “if you do what I say, I’ll let you live.”… [The father] said to me “If you don’t, I’ll punch you in the stomach to hurt you and the baby.” [The father] then removed my knickers and I felt him insert his penis into my vagina. I was so scared that I just laid there, frozen. I remember the sex hurting and my thigh hurting from being held by [the father]. When [the father] finished, he went to sleep… The next day, I said to [the father], “you know what happened last night was rape?” [The father] said to me “If you tell anyone about last night, I will fucking kill you and the fucking baby.”…
There are inconsistences in this version of the alleged rape compared with the version contained in the mother’s application for a protection order dated March 2020. In the protection order application:
(a)The mother says that on the night of the alleged rape the father arrived home at 2.00 am whereas there is no mention of a time in her evidence in chief;
(b)The mother says that the father picked her up and threw her on the bed whereas in her evidence in chief she says he pushed her in the back onto the bed;
(c)There is no mention of a threat by the father that “if you don’t, I’ll punch you in the stomach to hurt you and the baby”;
(d)The mother says the father “ripped” her clothes off but in her evidence in chief she says he “removed [her] knickers”;
(e)The mother says the father left bruises on her arms when no such allegation is made in her evidence in chief;
(f)There is no mention of the mother saying to the father the next day – “you know what happened last night was rape”;
(g)There is no mention of the father threatening to kill the child;
(h)There is no reference to any photographs taken by the mother of the bruising allegedly sustained as a result of the rape unlike her evidence in chief which exhibits a photograph allegedly taken one to two days later depicting several small bruises on the upper thigh of a person the mother alleges is herself.
The mother told her psychologist, Ms U that on the night of the alleged rape in February 2019, the father arrived home late and that she had fallen asleep and he had woken her up. This is inconsistent with her evidence in chief that she smelt the alcohol on him “as soon as he came inside the house”.
During the trial, the mother was given a further opportunity to review the text messages between the parents for the month of February 2019. The mother remained unable to be any more specific about the date of the alleged rape.
A number of things can be gleaned from the content of the text messages:
(a)The mother sent the father numerous text messages every day during February 2019 (827 text messages in total plus 29 photo messages and 21 messages depicting a digital phone game);
(b)The mother shared seemingly most thoughts she had throughout each day;
(c)There is no suggestion in any of her text messages that the father had raped her;
(d)There is no indication of any occasion during that month when the father was home late, let alone at 2.00 am.
The mother contends that she went to the doctor one or two days after being raped by the father in February 2019, as a result of her starting to experience “pain and discomfort” in her genital area “as though there were hundreds of tiny paper cuts on my genitals”. The mother contends that she took a photo at the time “which showed lots of tiny tears or cuts on my genitals”. There are no medical records produced for this appointment, if indeed there was an appointment. If the mother did go to the doctor, she does not explain why she did not say she had been raped and why she did not show the doctor the photograph (assuming she did not). The mother denies that this was the medical appointment during which she was diagnosed with thrush and provided with a cream to treat her condition. The mother maintained her denial even when faced with her text messages to the father dated 3 March 2019 in which she said:
Yeah. I showed her, and she brought me the cream for my thrush thing. It looks hectic.
The mother admits that on 7 March 2019, she sent the father a series of text messages in which she said, among other things:
I just think you aren’t into me anymore.
You hardly ever want to have sex with me anymore.
It’s not hard to say something before I insert the cream or even before I went to the hospital. You hardly showed affection unless I did first.
The father left Q Town in June 2019 after the mother repeatedly drove past his home and sent him text messages indicating she was watching who was coming and going from his home.
The father contends that the first time the mother accused him of sexually assaulting her was on 1 March 2020, after final separation, when he received the following texts from the mother:
At 8:13 pm
Just seen a girls snapchat story of you… hope you have fun sleeping with all the other girls [emoji of a thumbs up]
At 8:32 pm
Cya. Thanks for using me and lying to me. And for sexually assaulting me.
At 8.34 pm
Rapist
At 8.36 pm
Don’t need that around me child. Imagine what you’d do if you were alone with her.
At 8.38 pm
Your nothing more than a raping, drug addict and an abandoning father. Please leave us alone.
(As per originals)
On 6 March 2020, the mother sent the father a text message:
At 9.20 am
I have all the video evidence and photo evidence of bruises and things from when you did it those nights.
The mother agrees that there was only one night when she alleges the father raped her i.e. February 2019. The other occasion is described by her as a “sexual assault” in September 2018. The mother agrees that she does not allege that she suffered bruising in September 2018. Other than one photo of bruising to the upper thigh, the mother failed to produce any photo or video evidence of bruising which she attributes to rape or sexual assault. Rather unconvincingly, the mother sought to explain the reference in her text to “nights” as a “poor choice of words”.
A further serious allegation made by the mother in her protection order application but not repeated in her evidence in chief, is that in June 2019 the father had:
… offered someone money to spike [her] drink whilst [she] was at a local bar with some friends so that he would be able to call Child Services and Police to say that I am a mother and taking drugs, as a way for [him] to get [the child] full time.
In her evidence in chief the mother refers to what she agreed in cross-examination was the incident in question:
329. I have been sexually assaulted by a partner before [the father] and I believe I was sexually assaulted by an unknown person after [the child] was born, when I went out for some drinks with acquaintances.
330. I remember accepting a drink from an unknown male. The next thing I can remember is waking up in the garden with my underwear pulled off and blood on my genitals. I think I was drugged and raped.
331. I have not reported the sexual assaults that have been perpetrated against me, including that which was perpetrated by [the father], to the Police because I begin to have panic attacks thinking about it and I know I would have to relive my experiences in order to tell the Police and the Court in front of strangers. I have not disclosed these instances of sexual assault to my parents as I still feel ashamed and embarrassed about them.
The father says that the mother told him by ‘Messenger’ on 24 May 2019 that she had been “drugged and raped” after she went out with two friends. The mother then sent him a series of text messages:
At 11.44 pm
My drink got spiked…
At 12.13 am
I 'm so fucked
At 1.42 am
Think I need to go to Hospital to get my stomach pumped
At 2 .31 am
I 'm ... […] and house
At 2 .36 am
I think it's date rape
(As per originals)
The father says that the mother sent a further series of text messages on 25 May 2019:
At 11.14 am
I've got bruises on my wrist where someone grabbed my hand and was trying to drag me out of [the] party and into a bush to try and rape me.
At 12.06 pm
if you aren't doing anything in an hour or so can you watch [the child] for me while I go to the Hospital and get tested for drugs and a rape kit thingy done? I don't want to tell my mum what I'm doing that's all. If not that's fine I'll just take her with me
At 5.05 pm
someone did something bad to me last night and I don't know who it was, will you come over tonight and just hug me for a bit please
At 9.46 pm
did you pay someone to rape me last night? If this is true holy fuck
At 10.06 pm
well I know who did it, and they've told me that you and some other guys were talking about it the other weekend while you guys were all drunk and on drugs
At 10.18 pm
tell me right now if the drug thing and asking someone to rape me is true or not . . . I know who raped me and I don't believe the story he has come up with but I don 't know if I believe that you guys were fucked up on the weekend ...
(As per originals save for anonymisation)
The father contends that the mother told him she was going to go to the police on the following Monday. The mother admits that, contrary to what she told the father, she did not go to the police or to the hospital. The mother also admits sending a series of text messages to the father on 15 June 2019 in which she said:
At 3.56 am
The guy who raped me showed up to my house and told me he was going to kill me and [the child] because I took him to the police.
…
At 7.26 am
He’d showed up off his face on something, tried breaking into the house while I was asleep. He then spat in my face, called me a bunch of names, said he was going to kill [the child] and I, also tried to smash my windows. I called the police after you didn’t answer, and they came, and there was no evidence of an attempted break-in. He wasn’t here when they got here because they showed up with lights on so he obviously took off. I haven’t heard back from them but they said they were going looking and going to his house.
(As per originals save for anonymisation)
Contrary to what the mother told the father, she admits that she has never made a complaint to police about an alleged rape by any person. Despite stating in her evidence in chief that the person who allegedly sexually assaulted her was “unknown”, the mother said in her text messages to the father (set out above), “I know who did it” and that the man who raped her turned up at her house. During cross-examination, the mother named the person and said he was someone she said she had known since childhood. Contrary to what she told the father, the mother admits that the police never attended her home as a result of an alleged break-in (she was living with her parents in Q Town at that stage) but maintains the person she named “tried” to break in and somehow managed to spit in her face despite failing in his attempt to break in. The maternal grandfather, who was present in the home at the time, has no recollection of any such incident. It is inconceivable that he would fail to recall such an incident if it had occurred.
The mother also stated in text messages to the father that the person who had raped her had sent her text messages apologising for doing so, but no such text messages were produced by the mother. On 14 March 2020, the mother sent text messages to the father in relation to the person she alleges drugged and raped her saying:
At 6.00pm
…Oh and you asked someone to spike my drink with date rape drug that weekend. Yeah I have all the screenshots from those conversations between you and him.
At 6.10pm
Why would I need to say a name when you’re the one who clearly organised it?
(Emphasis added)
During cross examination, the mother conceded that she did not have any such screenshots and that she had lied to the father.
Allegations of physical assault
The mother alleges that the red marks on her wrists depicted in photographs taken by her at 6.17 am on 23 November 2018 (exhibit 15) were caused by the father. The mother contends that the father came to her house “around 11.45pm” on 22 November 2018 and that they continued an argument they were having by text message that same evening. The following morning the mother contends that the argument “continued where it had left off the night before” and that the father grabbed her wrists tightly while they were arguing to stop her walking away from him. The contemporaneous text messages establish that the father arrived at the mother’s home prior to 9.16 pm on 22 November 2019. The mother had asked the father in a text message at 7.44 pm to pick up some cat food on the way. All rather mundane. The following morning the mother asked the father to send her a text message when he arrived at work (a common request by the mother) and he did so at 6.39 am. The mother concedes that there was nothing in the series of text messages that morning to indicate any recent argument.
The mother alleges that the father physically assaulted her on 27 January 2020, on the occasion when the father hit the sun visor inside his car thereby causing the windscreen to crack. The mother took a photograph of the windscreen which included the meta-data of the date and time. The mother’s evidence in chief about this incident includes the following:
288. On 27 January 2020, [the father] … and I were driving home from a brief holiday … [The father] was driving. … [The child] was asleep in her car seat in the backseat. [The father] and I were arguing … [The father] became so angry that he punched the sun visor in front of him with his right fist. The sun visor hit the windscreen. … the windscreen was cracked. … [The father] pulled the car over. … and began to cry. … I took a photo of the windscreen and the time stamp on my phone tells me the photo was taken at 10.49am on 27 January 2020.
289. … I got out of the car to check on [the father] … [The father] grabbed me by the arm and pulled me closer to him. He then placed both of his hands around my throat. He squeezed his hands tight and began shaking me side to side and back and forward whilst his hands were gripped tightly around my throat. I remember it was hard to breathe and thinking to myself: “This is it. He’s going to kill me”. … [The father] let me go. … My neck felt sore and tender. Later when [the father] was not with me, I took two (2) photos on my phone of my neck. It was red. The redness had disappeared by the time we got home.
290. When I got back to the car, … As I was trying to climb through to the back seat, [the father] grabbed me by the legs and pulled me back into the front seat.
…
293. We were home for around ten (10) minutes … Whilst he had my phone, he opened my photo app and found the photos I had taken of my neck. … I saw him delete the photos.
[Emphasis added]

The mother exhibits to her trial affidavit, photographs purporting to depict the redness to her neck caused by the father choking her on 27 January 2020 (included in exhibit 15) despite her evidence that she saw the father delete the photographs of her neck from her phone on 27 January 2020, within ten minutes of them arriving home. Curiously, the mother makes no mention of any photographic evidence of any injury in her application for a protection order dated March 2020, nor does she mention having taken photographs which the father deleted. The mother contends that she recovered the deleted photographs of her neck and legs (the mother contends she took photographs of bruising to her legs one or two days after 27 January 2020) from her ‘iCloud’ account when preparing an affidavit in October 2020. The mother failed to provide a satisfactory explanation for the alleged ‘recovery’ in circumstances where she indicated that her ‘iCloud’ storage was full at the relevant time, or how the photograph remained in her ‘iCloud’ account if her phone was ‘synced’ to her account and the photo had been deleted on her phone. The mother also failed to provide a satisfactory explanation of why the father would only have deleted the photographs she had taken of her neck and not of the windscreen. The windscreen is the only one ‘date stamped’ and the mother was unable to produce the original photographs of her neck and legs. The mother gave a rather confused explanation for the photographs during cross-examination, even suggesting that she had deleted the photographs of the bruising to her legs.
The mother gave a different version of the ‘choking’ allegation on 27 January 2020 to the family report writer in April 2021. At that time, the mother alleged that the father started choking her when she was trying to comfort the child in the back seat of the car i.e. not when she was outside the car.
There is a more feasible explanation for the photographs depicting two red marks at the front of the mother’s neck. The mother admits sending the following text message to the father on 12 May 2019:
You can’t love someone and not want to be with them. You’ve obviously fallen out of love with me. I have changed. I know I have. We have had a lot of fighting over [the child] lately, I just hate that you don’t want to be a father to her properly. It hasn’t worked and I tried to end my life because of how much I’d given up. I even tied something around my neck tightly because I’d given up that fucking much on myself.
(Emphasis added)
The mother contends that she was lying in the text message when she said she had tied something around her neck.
Particular admissions by the mother
The mother admits to lying to the father on numerous occasions including the following:
(a)Telling the father on 13 March 2019, that ‘Mr R’ had “kneed” her while she was at a bar when he had not done so;
(b)Telling the father on 26 May 2019 that she had taken money from the person who raped her when she had not done so;
(c)Telling the father on 29 May 2019 that doctors had told her that there was something wrong with the child’s heart and that she was taking the child to hospital in City P when there was nothing wrong with the child’s heart and the mother did not take the child to hospital in City P;
(d)Telling the father on 7 June 2019 that she was pregnant to the father when she was not pregnant;
(e)Telling the father on 20 February 2020 that she had been to the doctor that day for an abortion and had been given the abortion pill, which she had taken at the doctor’s surgery and that she was experiencing cramps, bleeding and had fainted, when none of that was true (the mother even swore on the child’s life that it was true at the time);
(f)Telling the father on 14 March 2020, that she had screenshots of a series of text messages between the father and another person in which the father asked for the mother’s drink to be ‘spiked’, when that was untrue;
(g)Telling the father on 6 April 2019 the child had died in utero.
Conclusion – allegations of family violence including sexual assault
Other than where admissions are made by the father, I reject the allegations made by the mother that she was subjected to family violence perpetrated by the father, including sexual and physical assault. My reasons for so concluding include the following findings:
(a)The many inconsistencies in the mother’s version of events including as set out in [66], [68], [69];
(b)The failure to mention any alleged rape until 1 March 2020, shortly after the parents separated, and seemingly as a result of suspecting that the father had engaged in sexual activity with another woman;
(c)The manufacture of evidence by the mother e.g. taking a photo of neck redness caused by herself and attributing it to an injury caused by the father after allegedly choking her;
(d)The implausibility of the mother’s statement that she was scared of the father as a result of him engaging in “hateful” sex with her on 24 August 2018 given the content of her sexually suggestive text messages to him on 25 August 2018;
(e)Despite the incessant chronicling of daily life in text messages, there is nothing in the text messages for the month of February 2019 suggestive of any rape;
(f)Contrary to the mother’s allegation that the February 2019 rape occurred late at night or at 2.00 am, the text message exchanges throughout February 2019 do not support the contention that the father arrived home late on any occasion during February 2019;
(a)The insistence by the mother that the description by her of “paper cuts” in her genitals was unrelated to the diagnosis of a medical condition despite her text messages to the father on 3 March 2019 and 7 March 2019 referring to the diagnosis of a medical condition and/or the treatment;
(b)The incongruence with her allegation of rape in February 2019 and her text message to the father on 7 March 2019 complaining about him not wanting to have sex with her;
(c)The incongruence with her allegation of rape in February 2019, and her text message to the father on 26 May 2019 stating that she felt safe with the father and regretted breaking up with him;
(d)The failure to produce any video or photographic evidence of the alleged rape (other than one photo of bruising to a thigh) despite alleging she had videos and photographs of bruising caused by the father in her text to the father on 6 March 2020;
(e)The reference in her text message on 6 March 2020 to the video and photographic evidence of bruising received as a result of those “nights” when the allegation made by the mother is that there was only one occasion she suffered bruising as a result of rape/sexual assault;
(f)The baseless allegation that the father had conspired with someone to spike her drink in or about May 2019, an allegation the mother now disavows;
(g)The likely fabrication of an allegation that she was drugged and raped by a third party in or about May 2019;
(h)The fabrication of the mother’s claim in a text message to the father on 26 May 2019, that as a result of the alleged rape she had bruises “all over my body”;
(i)The fabrication of the alleged rapist coming to her home and spitting in her face;
(j)The admitted fabrication of a claim by her on 26 May 2019 to the father that she had told her alleged rapist that "he has to give me 20 grand and he has already given me $400 so I'll see how much money he gives me and then I'll go to the Police".
(k)The many extraordinary lies admitted by the mother including as set out at [91];
(l)The mother’s attempt to shift some of the blame for the falsehoods told or maintained by her to a friend of hers called “Ms S”, when even if the friend had written the particular text messages, the mother maintained the lies e.g. that in the late stages of her pregnancy she had been taken by ambulance to City P Hospital because no heartbeat for the foetus could be found;
(m)The mother’s use of an old photograph of damage to her car in an attempt to bolster her claim that she had been involved in a car accident on 22 June 2019;
(n)The manipulation of the father into agreeing to her spending overnight with him on 14 February 2020 (discussed later in these Reasons);
(o)The manipulation of the father into being in a relationship with her by using his wish to spend time with the child;
(p)The attempted manipulation of the father into being in a relationship with her by threatening self-harm;
(q)The suggestion to the father that he had or would in the future sexually abuse the child when, on her own admission, she at no time held such a belief or held such concerns.
I find in particular that the mother’s allegations that she was sexually assaulted by the father in September 2018, that she was raped by the father in February 2019 and that she was choked by the father on 27 January 2020 are false allegations.
HAS THE MOTHER PERPETRATED FAMILY VIOLENCE AGAINST THE FATHER?
It is conceded on behalf of the mother that she perpetrated family violence against the father in the nature of derogatory taunts and coercive and controlling behaviour. The concession is appropriately made in circumstances where the evidence in support of such a finding is overwhelming.
The coercive and controlling behaviour was particularly egregious as it directly involved the child. The mother repeatedly sought to manipulate the father into resuming a relationship with her by using his wish to spend time with the child.
The risk of the father and child being subjected to or exposed to coercive and controlling behaviour from the mother is likely to be heightened if the child remains in the primary care of the mother.
WHAT IMPACT, IF ANY, WOULD THE CHILD SPENDING TIME WITH THE FATHER HAVE ON THE MOTHER’S MENTAL HEALTH?
It is difficult to assess what impact the child spending time with the father would have on the mother’s mental health given the contradictory nature of much of the evidence relating to this issue.
The mother contends that she now supports the father and child spending unsupervised time together and that she would even move to Region C to enable the father and child to have a meaningful relationship. The mother’s reasons for her change of heart are rather unconvincing i.e. after listening to the father and paternal grandmother during cross-examination she no longer has the concerns about them expressed as recently as 27 February 2023 (in her trial affidavit). The mother’s inability to identify anything specific about their evidence that caused her views to change, makes it difficult to accept that the mother’s change of heart is genuine. It seems more likely that the mother became concerned about the possibility of the child being removed from her primary care and that this was the real motivation for her changed position.
Despite her stated change of heart, the mother continues to believe that the father may kill her or the child in the future (at least that was her evidence in the earlier part of her cross-examination). If the mother’s beliefs genuinely changed on this matter by the end of the trial, it remains unclear why that is so. The basis for the mother’s belief that the father may kill her or the child was difficult to fathom. On the one hand, the mother claimed during cross-examination that the father had threatened to kill her when he stated on an occasion – “if I can’t have you, no one can have you” – and the mother is reported by the family report writer to have said in April 2021 that the father threatened to kill her and the unborn child. On the other hand, the mother concedes that she has never made an allegation that the father threatened to kill her or the child in any affidavit nor did she make such an allegation in her application for a protection order. The mother’s Notice of Risk filed 14 October 2020 makes no such allegation. It is inconceivable that such serious threats, if they had been made, would not have been included in previous material. It is also unlikely, in my view, that the father would have said to the mother – “if I can’t have you, no one can have you” – having regard to the history, as chronicled in the text messages, of the father repeatedly wanting to distance himself from the mother and the mother persistently pursuing the father to rekindle their relationship. The father even moved to Region C in mid-2019 to put distance between himself and the mother, who was stalking him at the time. I reject the mother’s allegation that the father made threats to kill the mother and/or the child.
The mother also contends that, until very recently, she believed the paternal grandmother would kill the child. The rationale for that belief was said, by the mother, to be based on the pressure exerted by the paternal grandmother (on the mother’s case) for the mother to have an abortion. The mother struggled to understand the difference between pressure to have an abortion and murdering the child after she was born. In my view, there was never any rational basis for the mother’s asserted belief that the paternal grandmother would kill the child.
The mother’s treating psychologist, Ms U, expressed “serious concerns” about the mother’s “long term mental health and functionality and her relationship and attachment to her daughter if the child were to have unsupervised time with the father and any time with the father’s mother”.
The mother’s counsel submitted that having regard to the mother’s instructions (i.e. that she now supports the father’s spending unsupervised time with the child), it “might mean that Ms U’s opinion is not correct”. It was submitted that the Court could take comfort in the fact that the mother is prepared to agree to “any proposals that Dr E had to say”. I assume counsel was referring to the mother undertaking therapy to address her mental health issues and/or her personality vulnerabilities.
Dr E suggested that Ms U’s “serious concerns” might need to be seen in the context of a likely acceptance by Ms U of the mother’s allegations of family violence and sexual assault at face value, which in turn led to her likely acceptance of the mother’s alleged diagnosis of post-traumatic stress disorder (a diagnosis not necessarily supported by Dr E).
So much of the mother’s evidence is untrue or at least unreliable, which in turn makes the diagnosis of any mental health issue problematic.
The mother does have a history of threatening to kill herself and the child, including in terms that demonstrate a considered means of achieving that outcome i.e. by driving into an oncoming truck with the child in the car. The mother suggests that she did not really have an intention to kill herself or the child when she made those threats. It may be that the threats were part of the pattern of behaviour designed to manipulate the father into resuming a relationship with her. Whether or not the mother meant to carry out her threats, they are suggestive of at least some underlying personality disturbance.
Despite her alleged current support for the father and child to spend unsupervised time together, the mother maintains her allegations that the father raped and choked her and seems to maintain some underlying concern that the father may kill her and the child. It is difficult to reconcile the mother’s competing positions. It might be that the mother is prepared, as she says she is, to “move on” and that might explain how she could support the child’s relationship with the father yet maintain her allegations of his conduct towards her. However, a belief that he might kill her and/or the child cannot be rationalised in the same way. Further, the mother has previously expressed a preparedness to “move on” but her commitment lasted all of two hours. This was in 2019 after the paternal grandmother had apologised to her for suggesting she consider an abortion in 2018. I simply cannot accept that the mother can “move on” such that any impact on the mother’s mental health or personality, of the child spending unsupervised time with the father, is ameliorated.
The mother’s counsel candidly conceded that the mother would experience “some difficulties … with sending [the child] off for unsupervised time early on” but submitted that, given her instructions, “she must, seemingly, have some confidence in her capacity, to a greater or lesser extent, to be able to deal with that emotionally herself”. Counsel for the mother also submitted that the mother’s history must be considered in the context of her very young age, her immaturity, and her apparent infatuation with the father.
The mother’s history of manipulative behaviour and extraordinary lies, designed, in my view, to have the father remain in or resume a relationship with her, cannot be put down to immaturity and infatuation alone. Indeed, even the mother herself contends that her “mental health” went into decline from the date of her pregnancy. The evidence does not go so far as to support a finding that the mother has a personality disorder but it certainly raises that as a real possibility. It does seem that the mother’s maladaptive patterns of behaviour e.g. manipulation of the father, poor impulse control, threats of suicide, false allegations against the father of rape and choking, likely false allegations of rape against third parties both before and after her relationship with the father etc., may well indicate a severe personality disturbance if not disorder and, if that be the case, her condition will be more difficult to treat than a mental illness e.g. an adjustment disorder or post-traumatic stress disorder.
Dr E expressed some optimism that a personality disturbance or disorder could be treated over a period of about two years and that if the mother were undergoing treatment and had someone present with her when the child was with her for say six months, this may well ameliorate any risk posed by the mother. If the child were living with the mother as opposed to spending time with her, it is difficult to see how it would be practical for her to have someone with her at all times the child is with her for six months. This was not the subject of any submission.
Conclusion – impact on mother’s mental health
As earlier noted, coming to a firm conclusion about the precise impact on the mother’s mental health of the child spending time with or indeed living with the father is difficult to determine given the contradictory nature of the evidence. The evidence certainly raises risks of harm to the child from the mother should the child spend unsupervised time with the father.
In my view, those risks include:
(a)The risk of the mother killing herself and the child, which she has previously threatened to do by driving into oncoming traffic whilst the child was in the car;
(b)Decompensation in the mother’s mental health and functionality if the child spends unsupervised time with the father, as opined by the mother’s treating psychologist;
(c)The possibility that the mother has post-traumatic stress disorder (arising from alleged trauma unrelated to the father) or an adjustment disorder, or a very real possibility that the mother has a severe personality disturbance if not disorder characterised by a significant pattern of behaviour involving:
(i)repeated threats of self-harm or suicide;
(ii)lies told to the father that she was seriously unwell;
(iii)lies told to the father that the child was seriously unwell and had even died in utero;
(iv)lies told about the father organising for her drink to be spiked resulting in her being raped;
(v)fabrication of evidence to implicate the father e.g. photographs of redness to her neck;
(vi)suggesting to the father that she was considering reconciling with a former boyfriend, whom she had told the father had previously raped her;
(vii)manipulation of the father to try to continue her relationship with him e.g. on 14 February 2020;
(viii)extraordinarily detailed lies told to the father with the apparent intention of gaining his attention and seeking to persuade him to reconcile with her e.g. that she was at a doctor’s surgery, had been given the abortion pill, was bleeding and had fainted etc.;
(ix)lack of insight and empathy as to the impact of her behaviour on the father and child e.g. suggesting to the father that he may sexually abuse the child;
(x)significant immaturity;
(xi)deflection of responsibility to other persons e.g. her friend “Ms S”;
(xii)impulsive behaviour;
(xiii)an obsession with being traumatised including an exaggerated fear of murder/ suicide.

Accordingly, I conclude that the impact of the child spending unsupervised time with the father will likely have a significant impact on the mother’s mental health which may even put the child’s life a risk.
DOES THE MOTHER HAVE THE CAPACITY TO SUPPORT A RELATIONSHIP WITH THE CHILD AND THE FATHER?
Up to the second day of the trial, the mother did not support the child having any relationship with the father. The order she sought was that he spend no time with the child. Extraordinarily, the mother sought to distance herself from the extremely limited relationship the child has had with the father as a result of her allegations against the father of physical and sexual assault of her (the mother), suggesting that the requirement for the father’s time with the child to be supervised was solely at the instigation of the Court. The restrictions imposed on the father’s time with child were as a direct result of the serious allegations made by the mother.
When asked to identify any benefit to the child of having a relationship with the father the mother referred to “the benefit of both parents” and “having the ability to choose herself … if she wants to continue the relationship … as she gets older I believe that it’s her own choice”. The mother suggested that at around the age of 12 the child should be able make her own choice and that at age ten she would take the child’s views into account. The idea that the child does not want to see the father is already one that has been raised by the mother. As such, it is problematic and raises the prospect of the mother failing to facilitate the child’s relationship with the father in the future. The child is only four, yet in an attempt to prove her point, the mother took a video recording of the child on 12 October 2022, which she contended supports her contention that the child is already rejecting the father. The mother commenced to record the child in the car after she became upset. The child said that she did not want to go (to see the father), she wanted to go on a slide at a children’s playground. The child had been on the slide when the mother told her it was time to go and see the father. The recording was an evidence gathering exercise conducted at the child’s expense. It does not support the mother’s contention and it certainly gives me no confidence that the mother would support the child’s relationship with the father in the future in circumstances where the mother even appeared unable to comprehend the context of the child’s distress i.e. being deprived of an enjoyable activity.
The family report writer expressed the following opinion in relation to the mother’s capacity to facilitate the child’s relationship with the father:
92. [The mother] has not facilitated any other type of communication between [the child] and her father. She does not volunteer any information about [the child] to [the father]. [The mother’s] negative perceptions and unfavourable portrayal of [the child’s] visits with her father suggests she is likely to have trouble supporting [the child’s] relationship with her father, if a decision is made for her to spend time with him. [The mother’s] refusal to allow the paternal grandmother to spend time with [the child], suggests she cannot prioritise [the child’s] needs over her own feelings. If it is determined that she has fabricated the reports about her experiences with [the father], then her representation of [the child’s] experience of spending time with her father, could suggest this may be a pattern of behaviour that will continue.
The mother’s allegations against the father, which I have largely rejected, resulted in the child’s relationship with the father being severely restricted for nearly two and a half years. The mother’s attempt to deflect responsibility for that situation to the Court did her little credit.
If the child remains living with the mother and spends unsupervised time with the father, I can have no confidence that the time would be successful. The two occasions when the mother did leave the child with the father were nothing short of disastrous.
On the first occasion, the mother agreed for the father to spend time with the child at his parent’s home on Region C on 15 February 2020. As the mother was driving with the child from Q Town on 14 February 2020, the mother was invited to stay overnight in the ‘granny flat’ at the father’s parent’s home, but the mother declined. The mother suggested that if she did so, the father would lock her out of the house and keep the child. The mother arranged to stay with the child in a motel on the night of 14 February 2020. The mother sent a series of text messages and photographs to the father that night suggesting that she and the child were at risk from three male strangers who were affected by drugs. One of the photographs showed the child being held by one of the men. As a consequence of the impression created by the mother, the father invited the mother to come to his parent’s home immediately. The mother and child stayed in the father’s room that night. In my view, the mother manufactured a situation of imminent risk which had the desired effect, namely, that she spent the night with the father. The following day, the mother left the child with the father and his mother while she drove to the V Region to have her hair done. The child remained with the father for six hours. The mother sent approximately 100 text messages to the father during this time, including asking the father to “prove” that his mother was still there, insisting that he take a photograph of the cars parked at the house, chastising the father for sending her a photo of the child rather than a video, and telling the father that he was “ungrateful” to the mother for facilitating his time with the child. The mother was abusive to the father upon her return, accusing him of not complying with one of her conditions, namely that he not drive anywhere with the child. The father maintained that he had not done so and was in turn abusive to the mother. It is also of some significance that the mother only agreed to the father spending time with the child in order to get him to agree to the resumption of their relationship. The content of a text message sent by the mother to the father on 15 February 2020 is as follows:
6:40am
… and I hope you realise I only did this today because I thought it would make us get back together… So please don’t take this as something that can happened (sic) every second weekend. I’m doing it because I want you back and I am willing to do whatever it takes
On the second occasion, the mother agreed to the child staying overnight with the father at Mr W’s (a friend of the father’s) place in late February 2020. The child was dropped off to the father by the mother at 2.15 pm. At 2.50 pm, the child became unsettled and it was then that the father noticed that the child’s ‘dummy’ was not in the nappy bag provided by the mother. The father contacted the mother to ask her where the ‘dummy’ was and this set in train an extraordinary series of text messages in which the mother made all sorts of irrational allegations against the father. The father was able to settle the child and he bathed and fed her and gave her an evening bottle before ‘FaceTiming’ the mother as requested. In another series of torrid text messages the mother accused the father of “denying me my child”. At about 8.30 pm, the mother arrived and demanded that the child be returned to her and the father complied.
Both occasions exposed the child to conflict.
Even the father’s supervised time with the child has not been without difficulty. The father has been spending two hours of supervised time with the child at a contact centre for nearly two and a half years. The return journey between Suburb M and City P takes him six hours. It is a two hour round trip for the child from Q Town to City P. The mother seems to have gone out of her way at times to undermine, if not sabotage, the father’s time with the child. For example, the mother banned the father providing the child with any food during the visits, ostensibly because of some alleged food allergies. One might have thought a list of suitable foods could have been provided or alternatively the mother could have provided the food. The issue came to a head when the child was given a sweet at the contact centre. The mother contends that the child is lactose intolerant and that the sweet had lactose in it. The mother even took a video recording of the child on 13 September 2022 to show the child allegedly saying that the father had given the sweet to her. The video shows the mother holding a chocolate within the frame of the camera and refusing to give the sweet to the child. The child can be seen approximately two metres away, sitting on the floor and exhibiting signs of distress. The mother was prepared to cause distress to the child just to prove a point.
The mother has also cancelled 17 visits at the contact centre ostensibly because of the child’s illness. The few medical certificates provided by the mother were very vague in identifying any medical reason for the child’s inability to attend.
The mother refused to facilitate make up time, responding to such requests by referring to the court order providing for time once a fortnight. The court order did not prevent make up time or extra time. The order specifically provided for the father to spend time with the child as agreed between the parties. The mother offered extra time in November 2022 when she wanted the father to consent to her interim relocation to L Town, a further four and a half hours from Q Town. The father did not agree. The mother has nevertheless spent part of each week in L Town since that time and enrolled the child in kindergarten in L Town without consulting the father.
Conclusion – mother’s capacity to facilitate relationship
Whether it is because of mental illness or personality issues or immaturity, I cannot be satisfied that the mother has the capacity to facilitate an ongoing relationship between the father and the child.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF EMOTIONAL HARM TO THE CHILD BY MAKING AND MAINTAINING FALSE ALLEGATIONS, IF FOUND TO BE FALSE, OF SEXUAL ASSAULT AND OTHER PHYSICAL VIOLENCE PERPETRATED ON HER BY THE FATHER?
I have found that the mother has made false allegations of sexual and physical assault against the father. The mother maintains those allegations.
If the child were exposed to such allegations there can be little doubt they would cause the child emotional harm.
The mother has undertaken eight counselling sessions with Ms U since November 2022 via video link. The child has been at home at the time and has wandered in and out of the room during at least some of the sessions. This indicates at least a recklessness on the part of the mother that may have exposed the child to allegations and emotions of the mother that the child should have be protected from.
To date, the child has perhaps been too young to be seriously impacted by the mother’s allegations.
Conclusion – emotional harm from false allegations
There is certainly a risk that the child may be exposed to emotional harm from the mother as a result of the mother making and maintaining false allegations against the father. However, I cannot find on the current evidence that the risk of that harm to the child is unacceptable.
WHAT IMPACT, IF ANY, DOES THE MOTHER’S MENTAL HEALTH HAVE ON HER CAPACITY TO MEET THE ONGOING NEEDS OF THE CHILD?
Many of the matters discussed earlier in these reasons are also relevant to this issue.
The evidence does not establish that the mother’s mental health has to date compromised her ability to meet the ongoing day to day needs of the child. Indeed, the father accepts that the child is currently well cared for by the mother and, but for his belief that the mother will not facilitate his relationship with the child, he would not be seeking to change the child’s living arrangements.
If the child were to continue to live with the mother and spend unsupervised time with the father, the risks to the mother’s capacity to meet the ongoing needs of the child, are likely to be increased, as opined by the mother’s treating psychologist, Ms U. The child’s ‘needs’ include her having an ongoing relationship with her father. While the mother says she now supports unsupervised time between the father and the child, her support will come at a cost to her. It is difficult to conclude otherwise. That much was conceded by her counsel and that is certainly the opinion of her treating psychologist. Even with ongoing therapy, Dr E suggested that the mother would likely need to have someone present with her and the child for six months.
Conclusion – mother’s capacity to meet the child’s ongoing needs
The evidence does not support a finding that the mother has not and cannot meet the child’s ongoing day to day needs if the current circumstances do not change. However, there can be little doubt that if the child spends unsupervised time with the father or lives with him, there is a real risk that the mother’s mental health and functionality will be impacted. The extent and duration of that impact will depend upon the nature of any mental health issue or personality issue and whether they are amenable to treatment.
WHAT IMPACT WOULD THE CHILD MOVING TO LIVE WITH THE FATHER HAVE ON THE CHILD’S RELATIONSHIP WITH THE MOTHER?
The mother does not contend that the child’s relationship with her will be detrimentally impacted if there is a change in the child’s living arrangements, as long as the child continues to spend regular time with the mother.
Changing the child’s living arrangements will have a significant impact on the child but she has a strong attachment to her mother and as long as the child continues to spend regular time with her mother, the child’s relationship with her mother is likely to be maintained particularly if the mother embraces therapy.
The father proposes that if the child lives with him the mother will continue to have a meaningful relationship with the child and I accept the father’s evidence that he would promote and facilitate the continuation of the mother/child relationship. The order proposed by him is consistent with his stated intentions.
Conclusion – impact on the child’s relationship with her mother
While the child’s relationship with her mother would obviously change if she lives with the father, I am satisfied that the child would maintain a meaningful relationship with her mother and that the father would foster and facilitate that relationship.
WHETHER THE CHILD WOULD BE EMOTIONALLY HARMED IF ORDERED TO MOVE TO LIVE WITH THE FATHER?
A change in living arrangements for the child would certainly be devastating for her, at least initially. The child may well be inconsolable for a period. The child may withdraw emotionally. However, the father has demonstrated extraordinary patience and commitment to the child, and over time has developed an ability to console her and meet her emotional needs. Although, it must be said that the circumstances in which he has been called upon to demonstrate that ability have been limited and brief.
According to the family report writer:
97. Moving to live with her father, who she has only experienced as a playmate and carer for brief periods, will be a major transition for [the child]. This will be distressing for her and for [the mother]. The impact of this may depend on [the child’s] ongoing relationship with her mother. It is unknown what [the mother] would do in this situation, so it is not possible for the writer to speculate. Continuing to have a relationship with her mother will presumably lessen the impact of this for [the child]. This will need to be balanced with the potential for the child to be affected by her mother's distress at their separation, and for [the mother] to fabricate, depending on the determination, claims about [the father].
98. [The child] does not yet have the capacity to understand any explanation about her mother disappearing from her life. She does not have the capacity to understand and explain the feelings this will cause her. [The child] has not had much cause to be separated from her mother so has limited experience of coping with this. The problems it could cause [the child’s] sense of trust, and her emotions, and behaviour, could prevent her from forming a bond with her father. These problems could be hard for him to recognise and respond to because of his relatively limited experience of caring for her.
99. In summary, … If [the child] moves to live with her father this will be immediately distressing and could also have long-tern detrimental implications for her. This will depend on how [the child] copes with the transition, the quality of the relationship with her father that she then develops, and her capacity to maintain a relationship with her mother.
There are potential long terms issues that might arise for the child if she does not adapt to the significant change of living with her father. Those issues might include an inability to trust people or to form and maintain relationships. In extreme circumstances she may develop a personality disorder. However, the loss of either parent may have similar consequences for the child. In such a speculative exercise it is impossible to rule out all potentialities.
Despite the likely challenges identified by the family report writer, she expressed a level of optimism about the child’s ability to cope with such a significant change. The family report writer assessed the child to be quite resilient and opined that because the child is “charming … people’s responses to her will be nice and pleasant and they will like her and she will respond in kind”. The family report writer identified the following approach as being most helpful in assisting the child’s transition:
The most important is to be consistently watching her and paying attention to all of her body language, her reactions, and responding to that with empathy and kindness and warmth, leaving discipline to the wayside until – you know, for quite a while, letting her know in advance, so trying to pre-empt and prevent any need for discipline by letting her know in advance what the expectations are, and then just a gentle reminder should suffice, so that she’s not in a situation where she’s being chastised, having things the same as much possible, so consistent routines, the same people, nice activities, fun activities, but they don’t have to be any – you know, just going to the beach or going for walks or just paying her a lot of attention, playing with her, doing a lot of play activities, and just concentrating on developing that relationship and being with her as much as possible, making sure that at night-time she is well soothed and comforted and following whatever routine her mother takes or has with her, trying to copy as much as possible what her mother does.
Conclusion – emotional harm to the child from change in living arrangements
It is likely that the child will experience some emotional harm if she ceases to live with her mother. However, I am comfortably satisfied that the father is motivated to take all necessary steps and seek out all necessary support to ensure that the child successfully transitions to live with him. Importantly, I accept his assurances that he supports and will facilitate the child retaining a meaningful relationship with her mother.
The father has sought out and undertaken appropriate courses and counselling to better equip himself to meet the needs of the child. I am satisfied that he will continue to seek the support of his counsellor and take advice on how to best meet the child’s ongoing physical, emotional and psychological needs.
In those circumstances, any emotional harm experienced by the child is unlikely to be long lasting.
WHAT PARENTING ORDER IS PROPER?

In arguing for the child to remain with the mother, the mother’s counsel submitted that the mother had “looked over the precipice”, which I take to mean she has realised that there may well be a change in the child’s living arrangements unless the Court can be satisfied that she can address the serious issues identified. Counsel for the mother further submitted that, if necessary, an interim order could well be a better option in this case than changing the child’s living circumstances, submitting that “the sword hanging over one, by virtue of an interim order, works”.
Changing the child’s living arrangements is an extreme outcome and one that I would avoid but for my concerns about the impact on the mother’s mental health (including issues of personality) of the child spending unsupervised time with the father, and my inability to be satisfied that the mother would facilitate the child’s relationship with the father long term.
It might well be that if an interim order were made the mother would comply with any order but what happens when a final order is made? At some point the mother would no longer have the Court looking over her shoulder. The mother’s sense of entitlement in relation to the child and her history of using the child to try and achieve her own desires does not auger well for the future prospects of the child maintaining a relationship with the father in the future, if the child remains primarily with the mother. In my view, it would only be a matter of time before the mother found some excuse to interfere with the child’s relationship with the father e.g. suggesting that the child does not want to see the father, or making further unfounded allegations against the father.
Counsel for the mother said all he possibly could in support of the child remaining with the mother. In short, he urges the Court to give the mother another chance. It was submitted that the mother will do whatever it takes to keep the child. The mother will move to Region C. She will undertake therapy.
It is important to stress that the Court is required to make an order that is in the best interests of the child in the particular circumstances of the case. The Court is not concerned with what a parent may perceive as punishment or in giving a parent “another chance”. The focus must remain on the child. It most certainly is not about punishing a parent.
I have given serious consideration to the submissions made on the mother’s behalf. The removal of the child from her mother’s primary care is a very serious step and is likely to be traumatic for the child, at least in the short term, and there is a possibility that the child will suffer long term consequences if removed from her primary, if not only, attachment figure. However, I must balance the risks identified if the child is removed from her mother’s primary care, with the risks identified if she remains with her mother. Those risks include, at the very least, the exposure of the child to a deterioration in the mother’s mental health and/or personality functioning, and the loss of a relationship with her father.
If the child does not have a relationship with the father, it could have, as opined by Dr E during cross-examination, “quite a significant impact on her overall emotional development and emotional trajectory” including feelings of loss and abandonment, insecurity, and could impact “significantly on her personality development” and result in her being “more prone to having anxiety and depression and perhaps even develop, … serious personality problems where she can’t cope with life, can’t develop relationships, can’t work”.
There is also a very real prospect of the child not having a relationship with her extended paternal family and half sibling if the child remains in the mother’s primary care. The mother has not been facilitative of the child maintaining such relationships in the past.
I have come to the conclusion that the best interests of this child require her to live with the father and spend time with her mother, initially at a contact centre for at least eight weeks, and upon the maternal grandparents undertaking to be present throughout the child’s time with the mother, then for extended periods supervised by them for two years. The requirement for supervision, hopefully by the maternal grandparents or either of them, will continue for two years. By this time it is likely that the mother’s therapy (which she contends she will willingly undertake), will have assisted the mother to satisfactorily address her mental health issues and/or her personality issues.
I do not consider the father’s proposal for the maternal grandparents’ presence until the end of this year to be sufficient. In my view, it is preferable to extend their involvement for at least two years. Although the ICL recommended the continuation of the maternal grandparents for an indefinite period I am satisfied that the order I propose to make will ameliorate the risks identified. While I am satisfied that the maternal grandparents are likely to do whatever is necessary to assist the mother, I cannot order them to do so. Hence, the order will provide for a continuation of supervised time at a contact centre until the grandparents each provide an undertaking in particular terms and a requirement for supervision even by the grandparents will only be removed upon the mother providing the father with a report from her treating psychiatrist/psychologist confirming that the mother has addressed the issues identified in these Reasons.
I should observe that all parties considered the maternal grandparents to be suitable supervisors despite the maternal grandmother not being a witness in the proceedings and despite the maternal grandfather choosing to remain ignorant of the details of the case (it had been recommended by the family report writer that the maternal grandparents read the first family report but they did not do so). It was noted during submissions that the maternal grandfather remained in Court throughout the last day (and submissions) of the trial. I am sure he now has a much better understanding of the significant issues in the case.
The risks to the child, as identified in these Reasons, will be ameliorated not only by the requirement for the mother’s time to be supervised for an extended period and the requirement for her to undertake therapy, but also by the child having the opportunity to live with the father for an extended period (before supervision is removed) and thus develop a secure relationship with him. The combination of these factors will hopefully ensure the child is less likely to be influenced by any attempt of the mother to undermine the father/child relationship in the future. The child will of course continue to be vulnerable to influence and suggestibility from the mother (if the mother is so minded) but, in my view, the risk to the child will have diminished to a significant degree after having lived with the father for an extensive period and having experienced him as a safe and caring parent.
The presumption in favour of equal shared parental responsibility does not apply in this case, given the history of family violence, and having regard to the submissions of all parties that an order for sole parental responsibility should be made in favour of the parent with whom the child is primarily living. I propose to order that the father have sole parental responsibility for all major long term issues in relation to the child.
All parties had the opportunity to make submissions about the terms of the order proposed by each other party. In fashioning the final parenting order I have had regard to each party’s proposed order and submissions and settled upon an order which, in my view, best meets the interests of the child.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 3 May 2023

File number(s):	BRC 12172 of 2020
Judgment of:	CAREW J
Date of judgment:	3 May 2023
Catchwords:	FAMILY LAW – CHILDREN – Change of residence – Where the mother’s serious allegations of family violence severely restricted the father’s relationship with the child for two and a half years – Where the mother’s allegations of rape and choking against the father are found to be false – Where there is overwhelming evidence in support of the mother’s concession that she perpetrated family violence against the father – Where the mother engaged in coercive and controlling behaviour designed to manipulate the father into remaining in the relationship – Where the evidence raises a real possibility that the mother has a personality disorder – Where the Court cannot be satisfied that the mother has the capacity to facilitate an ongoing relationship between the father and the child if the child remains in the mother’s primary care – Where the family report writer expressed optimism at the child’s ability to cope with a change of residence into the father’s care – Where an order for a change of residence to the father is in the best interests of the child – Where the child will live with the father and spend time with the mother, supervised for a period of two years to enable the mother to undergo intensive therapy
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley [2022] FedCFamC1A 101 Isles and Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92–655
Division:	Division 1 First Instance
Number of paragraphs:	158
Date of hearing:	20 – 24 March 2023
Place:	Brisbane
Counsel for the Applicant:	Mr R Horsley
Solicitor for the Applicant:	Legal Aid Queensland
Counsel for the Respondent:	Mr T Jordan
Solicitor for the Respondent:	O’Neill Family Law
Counsel for the Independent Children’s Lawyer	Ms K Oakley
Solicitor for the Independent Children’s Lawyer	Forest Glen Lawyers

BRC 12172 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DUFF Applicant
AND:	MS NALANI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	3 MAY 2023