Edhouse & Edhouse (No 4) - [2024] FedCFamC1F 647

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edhouse & Edhouse (No 4) [2024] FedCFamC1F 647

File number(s): SYC 4161 of 2021

Judgment of: KARI J

Date of judgment: 25 September 2024

Catchwords: FAMILY LAW – CHILDREN - Where the father presses an interim application to change the primary care of the child – Where the mother has fabricated a medical diagnosis, treatment and medical records - Where there has been an independent psychiatric evaluation of the mother undertaken by the single expert –Where the single expert considers the mother has an undiagnosed personality disorder – Where the single expert considers that the mother presents a risk of psychological and physical harm to the child - Where the mother makes recent allegations that the father has caused bruises to the child – Nature of interim hearing and fact finding - Where the mother’s evidence filed in these proceedings is not consistent with the reports she made to the child’s General Practitioner and school –– Assessment of whether the risk posed by the mother is chronic and underlying as against acute and immediate–– Where the Court cannot rule out that the mother has involved the child in her “deceptive behaviours” and incorporated the child into her “lies” – Where the Court considers the risk of harm posed by the mother is acute and immediate – Orders for the father to have sole parental responsibility for the child – The child is to live with the father – Where it would be detrimental to the child’s emotional wellbeing to separate her from either parent – Orders for the mother to spend supervised time with the child twice per week pending the testing of all of the evidence at trial

Legislation:
Evidence Act 1995 (Cth) s128

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 67ZBD

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102

Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111

Goode & Goode (2006) FLC 93-286

Hall & Hall (1979) FLC 90-713

Marvel & Marvel [2010] FamCAFC 101

Division: Division 1 First Instance

Number of paragraphs: 92

Date of hearing: 9 and 13 September 2024

Place: Adelaide

Counsel for the Applicant: Mr Grew

Solicitor for the Applicant: Coleman Greig Lawyers

Solicitor for the Respondent: Mr Lowry of Matt Lowry Criminal Law

Solicitor for the Independent Children's Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors

ORDERS

SYC 4161 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR EDHOUSE

Applicant

AND:
MS EDHOUSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That until further order:
(a)the child X (born 2019) (“the child”), shall live with the father;
(b)the father shall have sole decision making responsibility for the child in relation to all major long term issues;
(c)the child shall spend time with the mother as follows:
(i)Each Saturday from 9.00 am to 12 noon AND each Tuesday from the conclusion of school (or 3.00 pm if a non-school day) to 6.00 pm.
(ii)That all time spending be supervised by Y Family Services.
(iii)That the father pay all costs associated with Y Family Services.

3.That to facilitate the child’s time spending with the mother, each of the parents shall:
(a)Forthwith make contact with Y Family Services and abide by any directions given by Y Family Services to complete their intake assessment to facilitate the commencement of time spending at the earliest possible time; and otherwise
(b)Comply with all reasonable directions, requests, policies, obligations and appointments made by Y Family Services.

4.That all interim parenting applications be dismissed, including in particular:
(a)The extant balance of the Application in a Proceeding filed 23 August 2023 (being paragraphs 2, 3, 4 and 5); and
(b)The Response thereto filed 3 October 2023.

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

These are parenting proceedings relating to the parties’ child X (born 2019), who is aged five years.
The parties are in dispute about the appropriate living and time spending arrangements for X.
The current parenting arrangements are those embodied in orders made by Austin J on 22 September 2021, which provide for X to live with the mother and spend each weekend with the father from 5.00 pm Saturday until 7.00pm Monday. An order was also made on that occasion allocating sole parental responsibility to the mother.
The proceedings are listed for trial before me in February 2025.
The father now presses an Application in a Proceeding that he first made in August 2023 for X’s primary care arrangements to be changed such that henceforth X live with him, he have sole parental responsibility for her and that she spend supervised time with the mother. In advancing his position, the father relies on two recent reports prepared by the single expert in the proceedings.
The mother opposed the father’s application. While her position vacillated and was different to that originally advanced by her in the Response that she filed on 3 October 2023, by the conclusion of the interlocutory argument the mother promoted orders providing for X to live with her for four nights each week and with the father for three nights each week; being an additional night of time spending with the father to be added to the existing weekend time spending.
An Independent Lawyer (“ICL”) has been appointed in the proceedings. The ICL’s views were tempered by the single expert’s opinion that X is progressing well and has strong and secure attachments with each of her parents. The ICL however equally acknowledges the single expert’s opinion of the risk posed by the mother and submits that if the Court considers the current risk is acute and immediate, the orders sought by the father are supported.
Argument was heard over two hearings on each 9 September 2024 and 13 September 2024.
At the conclusion of the hearing on 13 September 2024, short ex tempore reasons were delivered and orders made pending the delivery of these reasons and the making of parenting orders which would subsist until the trial.
The order made on 13 September 2024, provided for X to live with the father pending the delivery of these reasons.
For the reasons that follow, orders shall be made until further order (envisaged at this stage to likely be at least until the making of orders following the trial), that provide for:
(a)X to live with the father; and
(b)X to spend supervised time with the mother on two occasions each week.
BACKGROUND
The parties to the proceedings are X’s parents. The father was born in 1968. He is 56 years of age. He is a healthcare professional. The mother was born in 1983. She is 41 years of age. She is presently engaged in home duties. She is a permanent Australian resident, and she has both Country V and Country Z citizenship.
The parties married in 2015, they separated on 10 February 2021 and they divorced in 2022.
The parenting proceedings were commenced by the father on 4 June 2021. When the mother filed her response in the proceedings on 28 June 2021 she also sought orders adjusting the parties’ property interests.
The financial proceedings are not directly relevant to the interlocutory parenting arrangements which now fall for determination. However, some events which have taken place in the shadow of the financial proceedings are of direct relevance to the parenting issues now before the Court. In that regard:
(a)The financial proceedings were resolved by agreement between the parties following a settlement conference which took place on 29 November 2022. Final orders were thereafter made in chambers by a Judicial Registrar at the mutual written request of the parties effecting a division of property on 23 December 2022.
(b)On 19 September 2022 and in the context of settlement negotiations pertaining to the financial proceedings, the mother disclosed to the father (through their respective solicitors) that she had been diagnosed with a medical condition, her solicitor advising (Exhibit F11):
With regard to my client’s future needs, they have increased by her recent diagnosis of [a medical condition]. My client is currently receiving treatment.
My client will obtain medical documentation to provide to your client in due course which sets out her diagnosis, prognosis and treatment.
(c)On 29 November 2022 and in the lead up to the financial settlement conference later that same day, the mother’s solicitor sent the father’s solicitor a document by email described as “my client’s [medical condition] Treatment Plan” (Exhibit F12). The document attached to the email bears a date on the first page of 9 May 2022, and it sets out relevant information, including the following:
(i)The mother’s “Leading Specialist” was identified as Dr U, with a “Speciality” of “Surgical [Procedures]”;
(ii)The mother’s “Medical [Specialist]” was identified as Dr G;
(iii)The “Principal Diagnosis” is identified as “[…]”;
(iv)The “Diagnosis date” is 9 May 2022;
(v)The “Treatment Plan” provides:
Surgery:[…]
[Therapies:] […]
(vi)The mother had “existing supports” from her Psychiatrist Dr J, with “Concerns/issues” identified as “PTSD, Anxiety”.
(vii)The document is “finalised” by Dr U and Dr G on 8 May 2022, and by Dr AA, with no date specified.
(d)By letter from the mother’s solicitor dated 20 December 2022 to the father’s solicitor (Exhibit F13), sent three days prior to the making of the orders resolving financial proceedings, an update of the mother’s health was conveyed in the following terms:
My client was diagnosed with [a medical condition] in May 2022. She has had [surgery]. My client has finished her treatment, which included [medical intervention].
(e)On 22 December 2022, and in support of the parties’ mutual request that a Judicial Registrar make final orders adjusting property between the parties, a jointly signed communication was sent to the Judicial Registrar (Exhibit F14) which of significance identified:
2.4The Wife’s ability to work has been impeded by her caring commitments for the child of the relationship who is currently 3 years of age and her current [medical] diagnosis for which she is receiving treatment.
(Emphasis added)
(f)The letter identifies that the adjustment of property between the parties in the proposed orders amounted to a 55/45 division in favour of the father, with the mother retaining assets totalling approximately $1,567,314. In addition, the father agreed to make payments of spousal maintenance to the mother for a period of 24 months, together with the parties entering into a Binding Child Support Agreement for the support of X.
The financial proceedings progressed concurrently alongside the parenting proceedings.
The parenting orders made in the proceedings were summarised by me in Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102, at [20] in the following terms:
(a)On 25 August 2021, a Senior Judicial Registrar made orders for [X] to live with the mother and spend time with the father for three nights each fortnight, with the same to increase to four nights each fortnight in January 2022. No orders were made with respect to allocation of parental responsibility. A further order however was made at the request of and with the consent of the parties for the preparation of a single expert family report by [Dr F].
(b)On 22 September 2021, and as a consequence of an application for the review of the Senior Judicial Registrar’s decision, Justice Austin made orders for [X] to live with the mother and spend time with the father for two nights each week (from 5.00 pm Saturday until 7.00 pm Monday). An order was also made allocating sole parental responsibility to the mother. These orders continue to be the living/time spending arrangements for [X].
(c)On 2 June 2022, an appeal commenced by the father was dismissed by McClelland DCJ, Tree & Christie JJ in relation to the orders that had been made by Justice Austin on 22 September 2021.
(Footnotes omitted)
The proceedings were docketed to me in approximately April 2023. I have been actively case managing the proceedings since that time in an attempt to progress the matter to a final hearing.
A final hearing addressing parenting arrangements was first scheduled to take place commencing 4 March 2024. The hearing however did not proceed as a result of the mother’s Application in a Proceeding filed 9 February 2024 seeking orders that I be disqualified from further hearing the proceedings on the grounds of apprehended bias (“the disqualification application”). That application was heard by me on 16 February 2024 and dismissed by orders made on 29 February 2024 (Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102). The mother, however, commenced an appeal in relation to those orders on 1 March 2024 on the eve of the final hearing. The appeal was dismissed by orders made 12 July 2024 (Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111).
Whilst it shall be discussed in more detail later in these reasons, on 4 March 2024, on what would have been the first day of the trial, the Court vacated the trial dates and made orders at the request of the parties, which included an order that the single expert Dr F undertake an independent psychiatric assessment of the mother.
For ease, and because the background is relevant to the current application, I repeat matters that I set out by way of background in the reasons I published dismissing the disqualification application on 29 February 2024 (Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102):
22The proceedings first came before me on 28 April 2023. The parties at that stage were in receipt of the Family Report prepared privately by [Dr F] dated 14 January 2022. At that hearing the parties indicated to the court (through their legal representatives) that they wished to participate in a mediation in an attempt to amicably resolve the parenting proceedings. Accordingly, orders were made by consent for a mediation to take place prior to the adjourned case management hearing on 19 July 2023.
23In addition, orders were also made by consent for the mother to obtain and file reports from her treating specialist and General Practitioner. This order was made at the request of the father as recorded in the notation, in circumstances where the mother had disclosed to the father that she had been diagnosed with [a medical condition] and had undergone treatment for the same.
24When the matter returned before me for case management on 19 July 2023, the mother was not in attendance. Moreover, the mother’s legal representative at that time, advised the court that she had been unable to contact the mother or take instructions from her from about 30 June 2023. In that circumstance, the mediation that had been scheduled to take place on 18 July 2023 pursuant to the to the orders of 28 April 2023, had not proceeded. In addition, the mother had not complied with the order made on 28 April 2023 for the filing of reports from her treating specialist and General Practitioner. Against that backdrop, the mother’s solicitors indicated that they intended to file a Notice of Withdrawal.
25As a result of this information being conveyed to the court, orders were made to adjourn the case management hearing for a short period of time in an attempt to ascertain the position of the mother and have her engage in the proceedings. The proceedings were accordingly adjourned to 28 July 2023. A notation was also made that in the event that the mother did not attend the adjourned hearing, then the court would give consideration to issuing a warrant for the mother’s arrest.
26At the hearing on 28 July 2023, the mother’s solicitor again appeared for the mother. This appearance was despite the fact that they had filed a Notice of Ceasing to Act for the mother on 24 July 2023. The mother’s solicitor explained to the court that the mother had been hospitalised and that this was the reason for her non-engagement. A hospital discharge summary report, in support of the same, dated [mid] 2023 had been provided to my chambers and the father’s solicitors by email shortly prior to the commencement of the hearing. That discharge summary set out the mother’s principal diagnosis as “[Condition]– Community acquired” and indicated that the mother had been admitted after presenting to the emergency department in [in mid] 2023 and discharged [some weeks later].
27By the time of that hearing however, the mother remained in default of her obligations pursuant to the order made on 28 April 2023 for the filing of reports from her treating medical practitioners.
28In all of those circumstances a range of orders were made on 28 July 2023, including orders which provided for:
(a)The mother’s solicitors to file and serve a Notice of Address for Service;
(b)An extension of time for the mother to obtain and file the reports from her treating specialist and General Practitioner;
(c)Leave for the father to issue subpoenas to five different medical facilities/specialists in relation to the mother’s medical treatment;
(d)The mother to file and serve a copy of the Discharge Summary dated [mid] 2023; and
(e)No further case management hearing was allocated in circumstances where the proceedings were already listed for a First Day of Trial hearing on 24 August 2023, with a view to listing the matter for final hearing.
29In addition, orders were made by consent placing [X’s] name on the Airport Watchlist and restraining each of the parents from removing [X] from the Commonwealth of Australia. These orders were made as the father had filed an Application in a Proceeding on 21 July 2023 seeking the same.
30       Following the hearing on 28 July 2023:
(a)The mother’s solicitors duly filed the Notice of Address for Service, but not the Discharge Summary, nor any affidavit annexing the medical reports from her treating specialist and General Practitioner.
(b)The father issued the five subpoenas he had been given leave to issue to each [Dr G] of [H Medical Centre], [Dr J] of [K Medical Centre, Suburb BB], [Dr L], [Dr M] of [N Medical Centre and P Hospital] as well as an additional subpoena to [Dr Q] of [R Medical Centre].
31On 23 August 2023 the father filed an Application in a Proceeding, which he sought to have heard urgently. By that application, the father sought orders which significantly provided for him to have sole parental responsibility for [X] and that she live with him and spend supervised time with the mother.
32By that application the father sought a range of additional orders including but not limited to:
(a)       Orders for an updated Family Report to be prepared by [Dr F];
(b)Orders permitting the father to provide to [Dr G and N Medical Centre] a number of documents that the mother had produced to the father through the discovery process in the proceedings, all being letters written by [Dr G] to the mother’s General Practitioner, [Dr M].
(c)Orders requiring the mother to disclose to the father details of her health insurance policy and copies of letters referred to by the mother’s solicitors in correspondence to the father’s solicitors but not disclosed;
(d)       Leave to issue five further subpoenas;
(e)       The appointment of an Independent Children’s Lawyer.
33When regard is had to the affidavit the father filed in support of that application, it is apparent that the father pressed such an application as he was concerned as to a range of potential risk factors concerning the mother and particularly the mother’s “physical and/or mental health and her capacity to care for [X]” arising from:
(a)The contradictory information produced by the mother to the father about her [medical] diagnosis and treatment as against the records, and/or lack thereof, able to be obtained by the father pursuant to subpoena and to that end:
(i)There were no records capable of production by [Dr G], the mother’s specialist.
(ii)The records produced by the mother’s General Practitioner, [Dr M], and/or the [N Medical Centre] did not return any documents that confirmed the mother had been diagnosed with [a medical condition] and/or received any treatment for the same.
(iii)The records produced by the [N Medical Centre] included an entry that the mother had been referred for a [test] [in mid] 2022 without any reference to the mother by that stage, to the father’s knowledge, having been diagnosed with and receiving treatment for [a medical condition].
(iv)The records that were produced by the [N Medical Centre] identified that [in late 2022] the mother had not undertaken the [test] but [a month later] the results from the [test] indicated that the mother had a “[symptom]”.
(b)The lack of documents produced by [P Hospital] in relation to:
(i)The mother attending the hospital for anything related to her [medical] diagnosis, including the [surgery].
(ii)The mother’s hospital admission [in mid‑2023] and, in particular, there had not been production of the Discharge Summary dated [mid-2023] which the mother had produced to the court through her solicitors at the time.
(c)The information contained in the notes obtained from the mother’s Psychologist [Dr J] which recorded:
(i)That the mother had advised that the maternal grandmother was deceased, something which the father did not know about and did not accept as accurate; and
(ii)That the mother first disclosed her [medical] diagnosis to [Dr J in mid-2022], despite having four appointments with him [a month earlier] after the [medical] diagnosis was made.
34The father’s Application in a Proceeding, was listed to the existing hearing the following day on 24 August 2023.
35       At the hearing on 24 August 2023:
(a)The mother’s solicitors again advised the court that they intended to cease acting for the mother.
(b)The order requiring the mother to file reports from her treating specialists and General Practitioner remained extant, together with the order for the mother to file a copy of the discharge summary dated [4] July 2023.
(c)       The order for the parties to participate in mediation remained extant.
(d)       Orders were made:
(i)Listing the father’s Application in a Proceeding for a contested hearing on 26 October 2023;
(ii)For the mother to file and serve a Response to the said application and any affidavit in support by 29 September 2023;
(iii)For the parties to instruct [Dr F] to prepare an updated Family Report; and
(iv)      Adjourning the First Day hearing to 7 December 2023.
36On 4 September 2023, an order was made in chambers bringing the matter back for further case management on 7 September 2023. As explained to the parties at the hearing on 7 September 2023, I had done so as I was contemplating allocating the interim hearing an earlier date if possible, and because I wanted to know whether the mother had engaged new legal representation, which might allow an earlier hearing date.
37The day after this order, the mother’s new legal representative filed a Notice for Address for Service.
38At the hearing on 7 September 2023 leave was given to the father to provide copies of various medical records (all letters written by [Dr G] to the mother’s General Practitioner, [Dr M]) produced by the mother to the father (but not filed), to each to [Dr G] and to [Dr M]. Leave was also given to the father to file an affidavit from each [Dr G] and/or [Dr M].
39On 29 September 2023 the father filed an affidavit sworn by [Dr G]. The written contents of that affidavit is now reproduced in its entirety:
1.I am [a medical professional] with [S Medical Service]. [S Medical Service] provides comprehensive [medical] care for patients with [specific conditions] at [P Hospital].
2.I am currently the chair of the Section […] at [P Hospital] and the Clinical Director of [H Medical Centre], a comprehensive [medical] centre at [P Hospital].
3.I acknowledge receipt of a subpoena which was issued to me in these proceedings, being a subpoena filed 2 August 2023. This subpoena was served on my practice by the Applicant's solicitors, Coleman Greig Lawyers (CGL) on 2 August 2023.
4.Upon receiving the subpoena, I caused correspondence to be sent to CGL advising that no records were held in relation to [Ms Edhouse], DOB [1983], who I understand is the’ Respondent named in these proceedings. Annexed hereto and marked with the letter “A” is a true copy of this letter dated 3 August 2023.
5.I understand that further communications were entered between CGL and [Ms T] who is employed by [S Medical Service] in relation to the Subpoena and more. Particularly the question of whether any records were held for the Respondent.
6.On 8 September 2023, a letter was received from CGL attaching 7 individual letters, purporting to be letters authored by me on behalf of [S Medical Service] which were addressed to a [Dr M] of [N Medical Centre]. Having read those letters, I note that they concerned the Respondent and specifically in relation to [medical] treatment that supposedly occurred whilst the Respondent was a patient under my care. Annexed hereto and marked with the letter “B” is a true copy of the letter from CGL dated 8 September 2023, together with the enclosures referred to therein.
7.Upon receiving this correspondence from CGL and reviewing the enclosures, I directed [Ms T] to respond to CGL advising that the 7 letters were not created by myself or were on behalf of [S Medical Service] and that the letters appeared to be fakes due to it not being my signature and the incorrect positioning of the [S Medical Service] logo on the letter. Annexed hereto and marked with the letter "C” is a true copy of this letter dated 11 September 2023.
8.Further in relation to the above, I confirm that at no times has a person by the name of [Ms Edhouse], DOB [1983] been a patient under my care and therefore there are no records held for this person which I am able to produce in accordance with the subpoena.
40On 3 October 2023 the mother filed a Response to the Application in a Proceeding together with an affidavit in support of the same.
41       By her Response the mother sought orders:
(a)       Dismissing the father’s Application in a Proceeding.
(b)Discharging the orders made by Justice Austin for time spending between the father and [X];
(c)For a new four night each fortnight time spending regime between the father and [X], commencing at the conclusion of school Friday until commencement of school Monday in alternate weeks, AND from the conclusion of school Wednesday until commencement of school Thursday in intervening weeks.
42By that affidavit the mother, of significance for present purposes, variously deposed:
24.[Mr Edhouse] has alleged that I may not have had [a medical condition] and that instead I might be experiencing psychological disturbances.
…
26.As I understand [Mr Edhouse's] position, he is seeking Orders for [X] to be removed from my primary care and for her to live with him based on his allegations that:
a.         Certain medical records disclosed by me in the proceedings may not be authentic;
b.        That I falsely claimed to have been diagnosed with [a medical condition], and undergoing treatment for same;
c. That I may be "experiencing psychological disturbance which may be causing her to either intentionally fabricate facts or circumstances, or genuinely believes those facts or circumstances to be true".
…
28.In respect of [Mr Edhouse’s] assertions about certain medical records disclosed in the proceedings, I am unable to give further details in relation to those documents unless and until I receive a certificate pursuant to section 128 of the Evidence Act.
29.I confirm I have been diagnosed with [a medical condition] in 2022. I attended upon [Dr G], for treatment under an assumed name due to my concerns regarding my privacy being invaded. [Mr Edhouse] has, during our marriage, involved himself in my medical treatment, referred me to various doctors, had access to my medical records and at times dictated my medical treatment as detailed in this Affidavit. This has continued post separation.
…
34.I completed [multiple courses of treatment] under the care of [Dr G], [and was prescribed various medications].
35.In late 2022 I attended [P Hospital] for a two-night stay and [Dr U] performed a [procedure].
36.I did not claim Medicare or private health fund rebates for my treatment.
37.I am unable to comply with the orders for the production of medical records in relation my [medical] treatment namely, order 5 made 28 April 2023 and extended by order 3 made 28 July 2023. I see that those orders be discharged.
…
65.My mother was diagnosed with [a medical condition] in about [mid] 2014. In about [early] 2022 my mother and father left Melbourne and returned to [Country V]. [Just prior to May] 2022 my father rang and told me that my mother was unwell and in hospital.
…
67.My mother died in […] 2022. I spoke about this with my treating psychiatrist that day. My mother’s memorial was [that day and the next day] and her funeral took place in [two days later].
68.I do not have a death certificate for my mother. Annexed to this affidavit and marked “E” is a photograph of my mother’s service program and three photographs of her funeral.
69.I did not tell [Mr Edhouse] that my mother had died because I did not believe he would be sympathetic towards me and I was worried he would accuse me of lying.
70.I have not told [X] that my mother has died as she was very upset when she learned that her god mother had passed away, and I did not want to upset her further…
…
85.I was hospitalised [in mid] 2023 at [P Hospital] and was diagnosed with [a medical condition].
…
88.[In mid] 2023, I was discharged by [Dr W] who handed me a printout of my discharge summary which is annexed to this Affidavit and marked “H”. I do not know why that document has not been produced under Subpoena.
(As per the original)
43The mother’s affidavit also contained as an annexure a copy of the Hospital Discharge Summary dated [mid] 2023, but not reports from her treating medical practitioners and General Practitioner.
44As it turned out, the hearing listed for 26 October 2023 proceeded as planned and was not brought forward…
…
45       The matter returned before me on 2 November 2023. On that occasion:
(a)       The mother was represented by new solicitors.
(b)       Amongst the orders made were:
(i)An order listing the matter for trial commencing 4 March 2024.
(ii)An order adjourning the matter for further case management to 22 November 2023.
(iii)An order for the mother to file and serve any further affidavit that she intended to rely upon for the purposes of the extant interlocutory applications, with the same to be filed by 17 November 2023.
(iv)      An order appointing an Independent Children’s Lawyer.
46On 10 November 2023 the father’s solicitor wrote to my chambers to provide a jointly signed minute of proposed orders for the release of court documents to the Family Report writer [Dr F].
47In response to that communication, the matter was called for hearing on 15 November 2023, at which time the First Day hearing on 7 December 2023 was vacated and the proceedings were listed for interim hearing on 13 December 2023. I ultimately made orders in terms of the proposed orders emailed to my chambers by consent at the hearing.
48The hearing on 13 December 2023 proceeded, with three separate orders published as follows:
(a)An order was made on the oral application of the mother during the hearing, granting the mother a certificate pursuant to s 128 of the Evidence Act in relation to her “[medical] diagnosis, [medical treatment], [surgery] and [another medical condition] diagnosis”.
(b)Procedural orders were made for the filing of material and other associated matters to prepare the matter for trial.
(c)       An order was made:
(i)Adjourning further consideration of an oral application made by the mother’s counsel during the hearing for the release of material filed in the proceedings to the mother’s treating practitioner [Dr J], to 16 February 2024; and
(ii)Adjourning the father’s interlocutory application filed 23 August 2023 and the mother’s Response filed 3 October 2023 to 16 February 2024.
(Footnotes omitted)

On 26 February 2024, the mother filed her affidavit for trial, which was not before me for the disqualification application. By that affidavit (and covered by the certificate granted pursuant to s 128 of the Evidence Act 1995 (Cth)) of some significance to the present application, the mother deposed that she had “made up” her diagnosis, surgery and therapy treatment. The mother gave evidence in relation to those matters in the following terms:
123.[In late] 2022, I underwent a [test] and ultrasound which showed a [medical issue]. Due to the extensive history of [a medical condition in] my maternal family, I had genuine concerns that the [result was serious]. A biopsy […] was undertaken, and my results were sent to [H Medical Centre] for a further analysis. The [medical] report dated [late] 2022 showed [a symptom], though noted there was no evidence of [a medical condition].
124.I do not have a [medical] diagnosis. I was not diagnosed with [a medical condition] in 2022.
125.I did not attend upon [Dr G] under an assumed name or otherwise.
126. I did not undergo [medical treatment] under the care of [Dr G] or otherwise.
127.I did not undergo [surgery] performed by [Dr U] at [P Hospital] or otherwise. I only underwent a biopsy […].
128.I edited medical documents in these proceedings to try to prove to [Mr Edhouse] that I had a [medical] diagnosis. Those documents are false.
129.I made up by [medical] diagnoses in the hope that [Mr Edhouse] would feel sorry for me and stop treating me so poorly. I have experienced years of domestic violence perpetrated by [Mr Edhouse] against me, and that behaviour continued following our separation. I felt scared, cornered by [Mr Edhouse] and like there was no hope for me to break the cycle of abuse. At the time, we had finished an unsuccessful mediation, and [X] came home with bruises.
130. I acknowledge that my behaviour in this regard has been unacceptable. I apologise unreservedly to this Honourable Court, for my actions.
131.I was admitted to hospital [in mid] 2023 and was diagnosed with [a medical condition] at [P Hospital]. I do not know why my admission does not feature in the subpoena records. I consulted my general practitioner before I was admitted and after I was discharged from hospital. To the best of my recollection, I attended at [N Medical Centre] and consulted [Dr MM prior to admission] and [Dr KK following discharge].
(As per the original)
RECENT EVENTS
Following the dismissal of the mother’s appeal that I be disqualified from hearing the proceedings, I called the proceedings on for case management on 7 August 2024. At that hearing however, the solicitors on record for the mother indicated to the Court that they were without instructions and advised that they were shortly to file a Notice of Ceasing to Act. The mother was not in attendance at the hearing. Nonetheless orders were made allocating the matter a trial date of 10 February 2025, together with procedural orders to re-ready the matter for trial. The proceedings were then adjourned for further case management to an existing date of 28 August 2024 (given in the orders of 4 March 2024).
By the time of the case management hearing on 28 August 2024 a number of events had transpired:
(a)The mother’s solicitors had filed a Notice of Ceasing to Act on 19 August 2024.
(b)Dr F had prepared an addendum report dated 25 July 2024 in response to questions posed by the mother’s solicitors, which was released to the parties following the hearing on 7 August 2024.
(c)Following receipt of Dr F’s addendum report, the father’s solicitors wrote to my chambers on 16 August 2024 (copying in all parties to the email communication), asking that the matter be urgently relisted as the father wished to press his Application in a Proceeding first filed 23 August 2023, for the change of X’s living arrangements.
At the hearing on 28 August 2024, the mother appeared and was represented by a duty lawyer who informed the Court of certain allegations that were recorded in the notations to the orders made that day as follows:
C. The mother has disclosed through the duty lawyer today:
i.That the child made a disclosure to her [in] August 2024 which resulted in an attendance by the mother and the child at the [N Medical Centre] [a short time later] August 2024 in relation to bruising on the child’s [leg];
ii.Thereafter the [N Medical Centre] GP made a mandatory report;
iii.There is currently an investigation and is likely that the child will be interviewed today in relation to the same;
iv.The mother had not been contacted by the Department of Communities and Justice and so [in] August 2024 the mother made a report to the New South Wales Police at [Suburb FF Police Station].
Ultimately, orders were made on 28 August 2024 listing the father’s Application in a Proceeding first filed on 23 August 2023, to a hearing on 5 September 2024. In addition, orders were made to prepare the hearing including:
(a)The mother was directed to file an affidavit by 30 August 2024, with the father to file an affidavit by 3 September 2024.
(b)Orders were also made pursuant to s 67ZBD of the Family Law Act 1975 (Cth) (“the Act”) directed to each the Department of Communities and Justice and NSW Police to produce information about the family.
(c)Leave was given to the father’s solicitors to issue subpoena to each Dr CC of N Medical Centre and E School; being the GP that consulted the child in August 2024, and the child’s school respectively.
(d)An order was made directing the ICL to meet with the child during the period of the adjournment.
Material was returned by each the Department of Communities and Justice and NSW Police pursuant to the orders made pursuant to s 67ZBD. That material was released to the parties by orders made 4 September 2024. The material did not provide any new information regarding the alleged disclosures made by the child in August 2024, nor confirmation that there was an investigation and/or that the child was to be interviewed.
At the hearing on 5 September 2024:
(a)The father had complied with the order made 28 August 2024 for the filing of an affidavit, whereas the mother had not.
(b)Relevantly the father deposed:
(i)That X had been in his care between 17-19 August 2024, 24-28 August 2024 and 31 August 2024 – 3 September 2024;
(ii)During X’s time with the father on 17-19 August 2024 he noticed a bruise on her leg with a “light scab on the top”, which X explained to him had occurred when “a big girl at school knocked her over”;
(iii)During the visit between 24-26 August 2024, the father noticed that the bruise was still there but X was unperturbed by it and did not mention it;
(iv)During the visit between 31 August and 1 September X had been unwell in the days prior and did not attend school on the Thursday and Friday immediately prior, including missing the Father’s Day breakfast at the school;
(v)X was in the father’s care for an additional night on 2 September 2024 at the mother’s request as the mother was unwell;
(vi)He first heard of the alleged disclosures made by X at the hearing on 28 August 2024;
(vii)He had not had any contact from the Department of Communities and Justice;
(viii)He was contacted by an officer from the Suburb DD Police Station on an evening in August 2024 and asked if he was willing to participate in a formal interview, which he declined.
(c)Moments before the hearing, a new solicitor for the mother filed a Notice of Address for Service.
(d)An oral application was made by the mother’s new solicitor for an adjournment to enable the mother’s legal representation to familiarise themselves with the file and take instructions.
(e)A short adjournment was granted by the Court with a new hearing date set for 9 September 2024.
(f)An order was made granting the mother an extension of time to comply with the orders made on 28 August 2024 requiring the mother to file an affidavit by the morning of 9 September 2024.
(g)In addition an order was made requiring the mother to file an affidavit annexing “a copy of all photographs of the bruising to the child’s leg taken in late August/early September 2024” and “a copy of all video recordings of the child taken between late August/early September 2024 in relation to any disclosures made by the child and/or discussions in relation to disclosures and/or in relation to alleged bruising to her person”.
(h)This latter order was made of the Court’s own volition, because the material produced pursuant to the subpoena directed to the child’s school had been returned and was before the Court, and the records contained an entry that the mother had advised the school that she had both photographs and a recording of the recent bruising.
The mother complied with the orders to file further affidavit material. She did so with the filing of two affidavits on 9 September 2024; one at 12.21 pm and another at 12.22 pm.
In her affidavit filed at 12.21 pm, the mother deposed to recent events. Relevantly, the mother deposed:
4.On Monday 19 August 2024 evening, [X] was changing into her pyjamas when I noticed a large bruise on her right shin. It was a quick glance under dim light. I was not concerned at that point assuming it was common bruising for a young child. 2. [X] showered herself on Tuesday 20 August 2024 evening insisting she can “do the big girl thing”. While she was changing, I told to her about being mindful when she scooters. Conversation between [X] and I transpired in the effect of Me: Ouch, that must have hurt! Did you fall down scootering? [X]: No I didn’t! I’m very good at scootering now. Me: I know, I’m so proud of you! You're getting better at riding your bike too. But remember, an accident can happen to anyone. World champions have accidents too. [X]: It wasn’t an accident! Me: Falling or bumping into something is considered accident too. [X]: No, 1 didn’t fall or bump anything. It was daddy… “I meant at daddy’s house” ……. Me: Then you need to be mindful at daddy’s house, you said he has slippery stairs. [X]: I said I didn’t’ fall! Me: Ok, then what happened? [X]: [long pause] I don’t remember .... “Someone hit me during [sport] today”. Noting [sport] lesson is on Wednesday, and there was no bruise on Saturday morning when 1 helped her with her shoelaces, I wrote an email to her class teacher [Ms EE] lo ask if [X] fell in school.
5.On Thursday evening 22nd August 2024, upon closer look while bathing her I noticed on the back of her calf. a faded, smaller bruise, which appeared to be part of the cluster of bruises on the shin. .[sic] I could not determine the cause of the bruise and did not want to ask her further questions.
6.I did not know what to make of the bruises. Not wanting to speculate, I decided to take her to the GP or clinic nurse as they would know better and to rule out injury on the bone in case she has fallen on to hard surface. [Dr CC] saw [X] [in] August 2024. Upon inspection, she confirmed no musculoskeletal injury. She asked [X] “what happened?”, how did she bruise herself. [X] said at her daddy’s at first instance but later claimed a big girl bumped into her.
7.Annexed hereto and marked with “A” are the true pictures of [X’s] injuries and the video of [X] explaining what happened.
8. [Dr CC] measured the bruises and noted her observation in [X’s] record. [X] was then given pen and paper to make an observation report of the fishes in the waiting room. When she left [Dr CC] and I discussed our concerns. I mentioned I do not want to speculate nor falsely accuse [Mr Edhouse]. Especially with the timing of proceeding, I worry it will be seen as vexatious claim. It makes me anxious knowing I will be chastised in court by [Mr Edhouse]. [Dr CC] said she has to make a mandatory report as it looks suspicious, and I should do what I think is right for [X].
9.I emailed my previous lawyer but did not receive any reply after the consultation.
10.[A short time later], I called [E School’s] receptionist to check is anyone remembers handing out ice pack to [X] last Monday. The new receptionist said she the name [X] doesn’t sound familiar, and did not think she met saw her. She brought up [X’s] profile from the system, she thought [X] looks familiar from her photo but it is hard to tell having handed out lots of ice pack on daily basis. But her answer then changed to she may have given [X] an icepack but doesn't remember which part of her was injured, to she definitely did. She confirmed it wasn’t Monday, but could not confirm which day. I asked if it was for [X’s] right [leg] or left [leg], she told me she wouldn’t know, because [X] would have been wearing stocking. She advised the best person to check with is [X’s] class teacher.
11.After a weekend of pondering, I decided to seek advise from [Suburb FF] police station. I spoke to [Ms GG] about the inconsistency in [X’s] reply, showed her the photos of the bruises and told her l took [X] to the GP who thinks a mandatory report is necessary. I told her about the proceeding and my concerns, I mentioned [Mr Edhouse’s] over reaction from the incident [in] November 2022 contributed to my concern. She said she will come by our home on Wednesday evening as [X] will be more relaxed in her safe space and less confronting.
12.I sent a second email to [X’s] class teacher with a different email address. Her response was in the subpoenaed material. I requested for the phone call on her suggestion. [Ms EE] and [Ms HH] called around 2pm on Monday. I wanted to keep the call short and simple, as I found communication in the last 6 month has become gradually dismissive. I asked [Ms EE] of the bruises and told her [X] confided she has reported being hit by [Mr Edhouse] to [Ms EE]. [Ms HH] interrupted immediately by telling me I have no rights to know of what was reported to school. I was questioned in a way that felt like an interrogation by [Ms HH] of how the event unfolded. I told them my concerns and the inconsistency in [X’s] answers made it difficult. I then informed them I have spoken to the police who will be visiting. I told them not to ask [X] nor speak to [Mr Edhouse] before the police interviews [X].
13.On a Wednesday [in] August 2024, I went to pick [X] up from after school care after my application for legal aid grant was submitted. [X] was at the playground with her friends under [Mr JJ’s] supervision. [Mr JJ] reported [X’s] coughs which progressed since morning. When [X] was out of earshot, I asked [Mr JJ] if he recalls [X] falling last Monday. He said no and asked what happened. I told him [X] has a cluster of bruising with one particularly large bruise on her right shin, slightly bigger than my palm size. [Mr JJ] asked to have a look at the bruise but not wanting to alarm [X], I showed him one of the photo instead. To his best knowledge, there was no injury report nor is he aware of [X] sustaining a fall. He commented there isn’t any play equipment that could possibly contribute to such large bruise. I was still feeling the pressure from attending court, on top of the uncertainty of obtaining legal representation coupled with the thought of [X] being hit, my eyes started tearing when [Mr JJ] said the bruise looks concerning. I managed to compose myself as I did not want [X] to see me anxious, and I told [Mr JJ] the police will be visiting later because the shape of the bruises looks as if [X] was gripped with extreme force. He asked if I checked with school, which I said I did. I said I felt disappointed because [X] confided she told [Ms EE] of incidents of her dad hitting her in the past, yet I was not informed by the school. I instructed [Mr JJ] [X] shall not be picked up by [Mr Edhouse] outside of his time with [X] on Monday unless instructed by myself. 11. I deny ever bad mouthing [Mr Edhouse] to school or after school care. On many occasions, I had to ask vacation care if [X] was there because [Mr Edhouse] would not respond to my message and I did not know where to pick [X] up from changeovers during school holiday. I have mentioned co-parenting hasn’t been the easiest when I apologised for troubling them when
14.I rang [Ms GG] and her partner arrived at 6:30pm. I told [X] about the police visit that evening. [X] was excited and anticipating visit from [Ms GG] is “doing rounds” in the neighbourhood performing safety checks on young children and their parents. [Ms GG] spoke to [X] in a very child friendly manner, and [X] was interviewed unbeknownst to her. She showed interest in what [X] was doing and pleasant mannerism made it a positive experience for [X]. Due to the inconsistency to [X’s] answer and the timing of proceedings, they didn’t think they will press charges because they agreed that it may appear to be malicious and difficult to pursue without solid evidence. They advised they will speak to [Mr Edhouse] and that I should not be afraid to approach the police to report future incidents that concerns me regardless it may appear vexatious, it should not deter me from being a mum who wants to protect her child.
(As per the original)
THE DOCUMENTS RELIED UPON
By his outline of case prepared for the hearing and filed 4 September 2024, the father relied upon the following documents:
(a)Application in a Proceeding filed 23 August 2023;
(b)Further Amended Initiating Application filed 25 October 2023;
(c)His affidavit’s sworn on each 23 August 2023, 22 August 2024 and 3 September 2024;
(d)The affidavit of Dr G filed 29 September 2023 (the contents of which is repeated in full earlier in these reasons); and
(e)The four reports of Dr F referred to later in these reasons.
By her Case Outline prepared for the hearing and filed 9 September 2024, the mother only relied on the two affidavits that she had filed on 9 September 2024.
In that same document, the mother set out the orders she sought as follows:
1.That orders 2, 3 and 4 of the orders made 22 September 2021 remain in place
2.That pending further order:
3.The Mother shall have sole decision making responsibility in relation to all major longterm
4.Issues for the child [X] born […] 2019 (“the child”).
5.The child shall live with the Mother.
6.That the parties and the ICL have liberty to relist this matter on 48 hours’ notice in the event of issues with the implementation of these orders.
7.
(As per the original)
The ICL did not file an outline for the hearing.
I have had regard to the Case Outlines filed by the parties, the documents that they each relied upon and those documents received as exhibits during the hearings.
I have also, at the mutual request of the parties and the ICL viewed, listened to and considered two recordings separately provided to the Court by the mother, being the two separate recordings annexed to each of the mother’s affidavit’s filed 9 September 2024 (Exhibits F19 and F20).
THE REPORTS OF THE SINGLE EXPERT DR F
As earlier identified, Dr F was appointed as the single expert to prepare a Family Report in these proceedings pursuant to an agreement between the parties and subsequent orders made by consent on 25 August 2021.
To date, Dr F has prepared two Family Reports in these proceedings on each 14 January 2022 (“the first Family Report”) and 8 February 2024 (“the second Family Report”).
In addition, at the hearing on 4 March 2024 the parties mutually invited the Court to make orders for Dr F to undertake an independent psychiatric evaluation of the mother, in light of the mother’s admission that she had fabricated her diagnosis, surgery and therapy treatment. Lest it not be obvious, the timing of those orders was on what was originally scheduled to be the first day of the trial.

On 6 June 2024 Dr F prepared her report pursuant to the order made 4 March 2024 (“the third report”).
Following receipt of Dr F’s report of 6 June 2024, the mother’s solicitors posed a series of questions to Dr F via letter dated 5 July 2024. Dr F provided a response to the same which is dated 25 July 2024 (“the fourth report”).
I have had regard to each of the four reports prepared by Dr F.
Of significance, it is not lost on me that in each of her Family Reports Dr F variously identified:
(a)The mother’s interactions with X were reported as “warm” and “loving” and “indicative of a secure attachment”.
(b)X was observed to be “relaxed and familiar” with the father and “comfortable in his presence”, and their interactions were reported as “loving, playful and warm and suggested that X and her father shared a warm, secure attachment”.
(c)The mother demonstrated “a good understanding of [X’s] changing developmental needs”.
(d)X appeared to be meeting her developmental milestones.
(e)Separation from either parent mother would be detrimental to X’s emotional well-being and was not recommended.
(f)Both parents presented as capable of meeting X’s needs.
(g)The parents’ inability to co-parent and “interact amicably” had the potential to adversely affect X’s emotional well-being.
(h)She was not in a position to determine the factual disputes between the parties, particularly their competing allegations that the other had perpetrated family violence.
(i)It was not clear to Dr F that either parent’s allegations that X was at risk in the other parent’s care were warranted.
(j)The mother’s diagnoses of depression and PTSD did not “directly impact on her parenting capacity”.
Of relevance to the present application, in Dr F’s first report she detailed matters of concern relating to the mother and her mental health. In that regard Dr F variously recorded:
(a)The father’s concerns as reported to her about the mother’s mental health, her dysregulation, X’s exposure to the mother’s alleged lying, allegations she had made in the post separation period which he denied, including but not limited to allegations that he had perpetrated “domestic violence” and that he had “threatened to drive into the water with [X] in his car.”
(b)The father’s concern that the mother might be suffering from borderline personality disorder, and that this condition was not being treated.
(c)The mother’s suicidal ideation which resulted in her being involuntarily admitted to LL Hospital in early 2021.
(d)A further attendance on the mother by the Acute Care Team from LL Hospital a short time later in 2021 following an argument between the parties where the mother was assessed as being “highly charged, emotional and distressed in the context of complex marital situation and acrimonious separation”, with the discharge summary noting that the mother’s presentation was “more in line with emotional dysregulation in the context of borderline personality disorder (not diagnosed).”
(e)The mother had been diagnosed by her treating Psychiatrist Dr J as suffering from “depression, anxiety and PTSD which had developed primarily due to [traumatic events] she had experienced.” With the mother seeking regular treatment from Dr J together with a range of other professional services targeted to supporting victims of family violence.
(f)The mother’s self report to Dr F that she had been diagnosed with anxiety, depression and PTSD as a result of a period of incarceration/detention overseas for offences which she denies, but includes the possession of illicit substances, and for which she was released following the payment by her parents of a large sum of money.
(g)The mother’s allegations that the father was the perpetrator of family violence towards her, and that he had “gaslighted” her “by telling her that she was mentally unwell and accusing her of wanting to engage in deliberate self-harm or suicidal behaviour.”
(h)On mental state examination, the mother presented “in an articulate manner and her thought form was logical and goal directed. She demonstrated no obsessional or delusional thought content, nor any preoccupations.”
In her second Family Report, Dr F was aware of the father’s concerns, at that stage unconfirmed by the mother, that she had fabricated her diagnosis and treatment, and fabricated medical records. In addition, Dr F was aware of the father’s concerns that the mother had reported that the maternal grandmother was deceased (which he did not accept), the mother’s repeated requests of the father to care for X which he considered indicated the mother was not coping, and an allegation made by the mother in December 2022 (which the father denied) that he had physically harmed X and that the mother had recorded X naked in the bath and that X had been repeatedly questioned by the mother in relation to these allegations.
In relation to these matters, Dr F ultimately concluded in her second Family Report:
(a)The mother’s presentation was such that she “did not have any symptoms suggestive of mania or psychosis” nor “features suggestive of obsessive-compulsive disorder”.
(b)“However, if the Court finds that [Ms Edhouse] has indeed fabricated her illness and fabricated medical documents to support her claim, her ability to provide for [X’s] emotional and psychological needs to be seriously questioned. In addition, further assessment of [Ms Edhouse’s] mental health should be undertaken and additional treatment may be indicated. Such an assessment is not currently possible given that [Ms Edhouse] currently asserts her claims of having been diagnosed with [a medical condition] are true”.
(c)“In the absence of facts, it is difficult to speculate about any additional diagnoses [Ms Edhouse] may have, However, if the Court finds that [Ms Edhouse] has fabricated her [medical] diagnosis, and has perhaps lied about other matters as well, there are a number of diagnoses that could be considered. For example, borderline personality disorder, factitious disorder, malingering or her presentation could also be viewed in the context of trauma.”
So far as Dr F’s psychiatric assessment of the mother in her third report of 6 June 2024, commissioned by the parties after the mother had acknowledged she had fabricated her medical diagnosis, treatment and medical records, Dr F:
(a)Recorded that the mother reported her mood as “generally good”, identifying that “she was able to be positive despite the ongoing stress regarding current court proceedings. She did not describe a pervasive low mood or any other symptoms suggestive of depression. She felt that her anxiety was under control except when exposed to specific stressors”.
(b)Recorded that the mother “stated that her symptoms of PTSD had improved and only surfaced when she was exposed to specific triggers, such as matters relating to the current court proceedings or to [Mr Edhouse]. These symptoms included intrusion symptoms, avoidance, alterations in arousal/reactivity and alterations in cognitions…”.
(c)Recorded that the mother “denied any deliberate self-harm” and “denied suicidal ideation, planning or intent and thoughts of self-harm”.
(d)Opined that the mother “did not have features suggestive of obsessive-compulsive disorder”, “mania” or “psychosis”.
(e)Recorded that when asked about her alleged diagnosis the mother “acknowledged that she had not been diagnosed with [a medical condition] and had not undergone any treatment for [that condition]”, and effectively that her solicitor had misinterpreted her instructions and that she had only told her solicitor she had a [symptom] and was waiting for pathology results.
(f)Recorded that when the mother was asked why she did not correct her solicitor, the mother variously asserted that:
(i)at the time her solicitor had indicated to her that she could obtain a “more favourable financial settlement” if she had a serious medical condition;
(ii)there was a period of a month where her phone was not working and had no communication with her solicitor;
(iii)it was “difficult” for her to explain why she had not corrected her solicitor, and that she was worried that the father would accuse her of “intentionally lying”;
(iv)she was focussed on X and “wanted everything to go away”, describing the prolonged court proceedings as “slow torture” and that she wanted the process to be over and “left alone”; and
(v)she wanted a reprieve from the difficult co-parenting relationship she had with the father, as she considered he would be compassionate of her health.
(g)When the mother was challenged about having gone to “extreme lengths of falsifying medical records”, the mother asserted that as it was a year later, she considered that she had no choice but to produce medical records.
(h)Dr F identified that she had considered notes from the mother’s psychiatrist Dr J dated January 2024, produced pursuant to subpoena and provided to Dr F, where he had discussed the mother’s fabricated diagnosis with her, and he recorded:
Very tearful
States she was desperate for [Mr Edhouse] to leave her alone
Her mother had just died and she had found [a medical issue] and carries the gene [for a medical condition]
She mentioned this to her lawyer at the time who suggested she may find it easier to obtain adequate child support and a more favourable financial settlement if she had a serious illness.
(i)Dr F also spoke with the mother about additional circumstances which the father asserts to be fabricated by the mother, including the death of her mother, an admission to hospital in mid-2023; all of which the mother maintained were events which had occurred despite the father obtaining records pursuant to subpoena which on their face do not appear to support the mother’s assertions.
(j)The mother’s clinical presentation was otherwise unchanged, she “did not demonstrate any signs of emotional dysregulation. She did not demonstrate any unusual mannerisms or movements and there was no psychomotor agitation or retardation”.
(k)Recorded that the mother had:
reported no perceptual disturbances in any sensory modality and she was not observed to be responding to unseen stimuli. Her cognition was not formally tested as this was beyond the scope of the interview. However, she was fully orientated, alert and remained focused throughout the lengthy interview. She demonstrated good insight into her PTSD, anxiety and mood symptoms but seemed to have limited insight into the fabrication of her [medical] diagnosis.
(Emphasis added)
(l)Recorded that Dr J did not amend his diagnosis of the mother after he came to understand that the mother had falsified her diagnosis, treatment and medical records.
(m)Recorded that Dr J did not consider that the mother posed a risk to X or herself.
Ultimately Dr F formed the view that:
(a)The mother’s depression was currently in remission.
(b)The mother continues to have symptoms of PTSD (intrusion symptoms, avoidance, alterations in arousal/reactivity and alterations in cognitions) together with anxiety associated only with her PTSD.
(c)The mother’s fabrication of her diagnosis lead to “both material and emotional gain” and the motive for the mother’s fabrication was not clear.
(d)The mother did not meet the criteria for a diagnosis of borderline personality disorder, but had:
features suggestive of a personality disorder, in general. The specific subtype of personality disorder is difficult to diagnose in circumstances where individuals may not be forthcoming about symptoms or where facts are being contested due to court proceedings.
Dr F additionally considered the risk to X associated with the mother’s fabricated diagnosis, and opined:
As stated above, the deliberate, sustained and extensive efforts by [Ms Edhouse] to maintain the lie that she had [a medical condition] is concerning. It is particularly concerning if one considers the possible impact on [X], which could be direct or indirect. Direct impact on [X] would result from [Ms Edhouse] incorporating [X] into a lie or deceptive process. In such an instance, one would have to question [Ms Edhouse’s] capacity to put [X’s] best interests ahead of her own. Depending on the nature of the lie, the impact on [X] could be psychological or physical harm. It is not clear if, and to what extent, [Ms Edhouse’s] day-to-day functioning is impacted.
If [Ms Edhouse] is struggling with day-to-day functioning, this could of course, also impact on her ability to care for [X].
Dr F otherwise recommended that the mother undertake “longer term psychotherapy”.
Dr F’s addendum report of 25 July 2024 (the fourth report) is of significance to the present applications for a range of reasons.
(a)Firstly, because for the first time Dr F was asked to consider her diagnoses of the mother with an unspecified personality disorder, possible differential diagnoses and in light of the diagnosis given and the proposed parenting arrangements for X in the “short, medium and long term”; and
(b)Secondly, it was prepared as a result of questions asked by the mother’s own legal representatives.
In the fourth report of 25 July 2024, Dr F set out the following views:
(a)She did not consider the mother fit the diagnostic criteria for a differential diagnosis of Factitious Disorder for a range of reasons but particularly because the mother stood to gain from the fabrication of her medical condition, whereas individuals suffering from Factitious Disorder are understood to:
be motivated merely by internal incentives (primary gain), such as receiving care and attention in a medical setting by assuming the sick role. There are no external benefits (secondary gain) for the individual (as in the case of malingering).
(b)The mother’s fabrication of her diagnosis was “not explained by her PTSD or the family violence” alleged by her.
(c)The only other differential diagnosis available would be “malingering”, which is similar to, but distinct from Factitious Disorder, but that this is not a recognised psychiatric disorder.
(d)She maintained her diagnosis that the mother was suffering from an unspecified personality disorder.
Of significance in addressing the risk the mother might pose to X and recommendations as to X’s parenting arrangements, Dr F set out:
As outlined in my report, any changes in [X’s] circumstances could be stressful and disruptive to her. However, the risk of harm to [X] if exposed to [Ms Edhouse’s] deceptive behaviours or if incorporated into [Ms Edhouse’s] lies, needs to be mitigated. To this end, I would suggest that, in the short to medium term:
•[Mr Edhouse] has sole parental responsibility for [X]
•There is a gradual increase in the time that [X] lives with her father such that she eventually spends the majority of her time in her father’s care.
•Until [X] is of an age (for example, until the end of primary school) where she is less likely to be at risk of harm if exposed to [Ms Edhouse’s] deceptive behaviours or if incorporated into [Ms Edhouse’s] lies, time with her mother be limited to once a week.
•Until [X] is of an age where she is less likely to be at risk of harm if exposed to [Ms Edhouse’s] deceptive behaviours or if incorporated into [Ms Edhouse’s] lies, she does not have overnight time with her mother.
•Until [X] is of an age where she is less likely to be at risk of harm if exposed to [Ms Edhouse’s] deceptive behaviours or if incorporated into [Ms Edhouse’s] lies, her time with her mother be supervised.
Ongoing contact with her mother should be maintained via regular phone calls or Facetime at least once a week.
In the medium to long term, for example, at the end of primary school when [X] transitions from the developmental stage of “pre-teen” to “early adolescence”, consideration should be given to unsupervised time and then overnight night with her mother. Depending on how successful unsupervised visits and overnight visits with her mother are, it may then be appropriate for [X] to spend time with her mother in accordance with her wishes.
THE LEGAL FRAMEWORK
Part VII of the Family Law Act 1975 (Cth) is where the legislative provisions concerning children can be found. The central focus underpinning the legislation is that the Court “ensure that the best interests of children are met, including by ensuring their safety; and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989” (s 60B(b)).
To that end, at all times when the Court is considering making any particular parenting order, the Court must make parenting orders which “regard the best interest of the child as the paramount consideration” (s 60CA).
A parenting order is defined in s 64B(2) of the Act as one which includes:
(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 for the child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that parental responsibility;
(e)the communication a child is to have with another person or persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to court for a variation of the order…;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
In determining what is in a child’s best interest, the Court is to have regard to six separate factors identified in s 60CC(2) of the Act under the heading “General Considerations” as follows:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the Court must consider the following matters (s 60CC(2A)):
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
The assessment of risk underpins the Court’s assessment of the child’s safety, and to that end in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”), the Full Court of the Family Court (as it then was) identified:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…
DISCUSSION

There is no doubt that these proceedings have a lengthy history, and it is with some concern that there has yet to be a final hearing enabling all of the evidence to be tested and where possible findings made.
Inescapably however, the mother’s fabrication of her medical diagnosis and treatment have been significant factors in the prolongation of the proceedings. These events, the delay to the proceedings whilst the fabrications were maintained by the mother, could not be considered to be child focussed, at any level.
Whilst the matter is being progressed to a final hearing next February, when the contents of Dr F’s third and fourth reports are considered, it is readily understood why the father has now asked the Court to consider the application that he first made a year ago but was willing at that stage to adjourn to trial, for the change of X’s primary care arrangements.
Whilst it is accepted that Dr F’s opinion is but one of the pieces of evidence to be assessed in the overall final assessment of the matter at trial, and the Court is not bound to accept the evidence of the expert (per Hall & Hall (1979) FLC 90-713 at 78,819), at this juncture, and given the interlocutory nature of the proceedings, it is difficult to treat Dr F’s opinions and recommendations other than seriously; particularly where there has been no challenge at this stage by the mother.
During the course of the two hearings for this application, I commented to the parties that I considered Dr F’s reports to cumulatively pose two alternate scenarios relevant to the assessment of risk, particularly at this interlocutory stage, which I considered to be as follows:
(a)Firstly, that the risk posed by the mother be seen as chronic and underlying, with X not at risk of immediate physical or psychological harm; or
(b)Secondly, that the risk posed by the mother was more acute and there was an immediate risk of X suffering physical or psychological harm.
The parties, and in particular the ICL agreed with my observations in this regard. The ICL submitted that if the Court considered the risk to be chronic and underlying, then there was no immediate need prior to trial to take protective action and remove X from the primary care of the mother. However, the ICL submitted that if the Court considered the risk to X to be acute and immediate, there was no option for the Court but to alter X’s primary living arrangements such that X live with the father and that there be orders for supervised time spending between X and the mother as promoted by the father.
Understandably a focus during the hearings was the more recent events and allegations made by the mother. From the father’s perspective, the recent allegations made by the mother can only be viewed as the mother embroiling X in her deceptive behaviours. As a result, the father’s counsel submitted that recent events put beyond doubt that the risk posed by the mother was acute and immediate. These are submissions with which I agree for the reasons that follow.
The recent allegations made by the mother are ones that require careful consideration, despite the interlocutory nature of the proceedings.
I am cognisant of the comments of the Full Court of the Family Court in Goode & Goode (2006) FLC 93-286 at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible…
Equally however, in Marvel & Marvel [2010] FamCAFC 101, cited with approval in Eaby & Speelman [2015] FamCAFC 104, the Full Court of the Family Court (as it then was) identified:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
…
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123.Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Here, a careful analysis of all of the evidence before the Court at this stage reveals that the recent allegations made by the mother have been fluid, with the currents building the closer the parties have come to the interlocutory hearings. To that end, I observe:
(a)At the hearing on 28 August 2024, the mother disclosed to the Court that X had made disclosures to her about bruising to X’s leg she observed in August 2024.
(b)The father acknowledges that X came into his care for the weekend of 17-19 August 2024 with bruising on her right leg that had a light scab on top, with some bruising still present when X returned to his care the following weekend.
(c)When the mother came to depose about the bruising and the disclosures allegedly made by X in her affidavit on 9 September 2024 (set out in full above), the mother deposed:
(i)She had first noticed a large bruise on X’s right leg on 19 August 2024;
(ii)X gave various accounts of how the bruising had occurred when questioned by the mother on 20 August 2024, including it had happened at “daddy’s house”, “someone hit me during sport today”;
(iii)She noticed further bruising to the back of X’s leg on 22 August 2024, which she considered were part of the same cluster of bruises on the front of her leg;
(iv)A short time later, the mother was concerned so she took X to the GP to rule out a bone injury;
(v)During the GP visit, the mother alleged that X said to the GP that it had happened “at her daddy’s at first instance but later claimed a big girl bumped into her”.
(d)When regard is had to the medical records produced under subpoena from the GP attendance by X with the mother in August 2024 (Exhibit F18), of significance the GP recorded:
(i)“Bruise R [leg]” – which is consistent with both parents’ observations;
(ii)“[X] states bruise and pain on R lower leg since Monday” – the presence of pain was not something that the mother deposed to in her affidavit, equally the notes do not record that the mother was concerned that there was a bone injury from the bruising;
(iii)“[X] states another child bumped her at school on Monday”. “States was bumped by other child ‘everywhere’, and described from head down, and then described from R upper leg down to lower leg”. “States does not recall falling” – whilst it is not clear the notes suggest that these comments were made by X, but again the disclosures are different to the matters deposed to by the mother;
(iv)“Mum states child changes story when asked, states child mentioned dad rolled her over and hit her?” “States child then states getting bumped at school…” – these comments are clearly attributed to the mother in the notes, and for the first time, and different to that which was deposed by the mother in her affidavit, the mother proffers that X disclosed to her that the father caused the bruising by rolling her over and hitting her;
(v)On examination, the GP observed and recorded:
able to weight bear
R [leg] – 5.5cm blue-yellow healing bruise, slightly bigger than 10 cents size proximally and tapers down smaller, smaller bruises medially
some tenderness proximally
I am unable to exclude NAI [which presumably means non accidental injury], advised mum I will contact Mandatory Reporting
(vi)Retrospectively, and in August 2024, the GP amended her notes to record “Written in retrospect, re: [X] stating another child bumped her at school - may not be Monday. [X] stated does not remember when”.
(vii)In August 2024 and following the making of the mandatory report, the GP recorded “spoken to consultant – likely non-specific bruise, however due to history of mum being gripped tightly and fingerprint marks, for mum to make DCJ report” – again, different to the matters deposed by the mother, and for the first time it is apparent that the mother told the GP that she had been gripped tightly, presumably by the father in the past, and that the mother considered the bruising to look like fingerprint marks, which is not something that the GP had observed and recorded in her notes.
(e)Following the attendance on the GP in August 2024 the mother then had various communications with staff at X’s school, including afterschool care workers. From those records produced pursuant to subpoena (Exhibit F10), it is observed:
(i)The mother first emailed the school about X’s bruising on or about 20 August 2024, but the email was not received.
(ii)The mother then emailed the school again and spoke with someone on reception in August 2024, enquiring whether X had sought an ice-pack and/or whether there had been an incident report in relation to bruising on X’s “[leg]”.
(iii)After receiving the mother’s communication, X’s class teacher spoke with X and observed a “small bruise on her [leg]”, which X reported to her had occurred “in the playground. [X] explained that a student in year 6 had accidentally knocked into her and she had fallen over near the […] playground. [X] shared that she went to collect an ice pack from the reception.” When [X] was asked “why she hadn’t shared the story” with her teacher, X replied “it only hurt for a bit and then it was fine”.
(iv)A handwritten (and then typed) attendance note of a conversation with the mother in August 2024 records that the mother disclosed to the school that:
(A)X had a “bruise on [leg] that goes around […]” – again different to what was reported to and observed by the GP, and different to what the mother deposed in her affidavit.
(B)X had given various explanation for the bruise to the GP including that she had “got it at daddy’s house”, “then she said she couldn’t remember. Then [X] said a girl bumped into her” – which is consistent with the GP records.
(C)X had disclosed to the mother on Friday night (in August 2024) that “she was rolled over and hit in her dad’s house. He [sic] dad rolled her over & he hit her sometimes she falls off” – which is consistent with what the mother told the GP but again not what the mother deposed in her affidavit as X disclosing to her.
(D)X had disclosed to her “Daddy actually hit me” when reading a book about how brain … big emotions” – which is not consistent with anything recorded in the GP notes, nor the matters deposed by the mother.
(E)The bruise observed by her was “quite large and looks like a handprint” – which again is not consistent with that observed by the GP and not consistent with that deposed by the mother.
(v)There is a typed attendance note dated August 2024, which in part includes a typed record of the handwritten note earlier identified together with addressing additional matters (which may be part of a mandatory report, although it is not clear). In addition to those matters earlier set out, the typed note records the following additional matters of significance:
(A)“[Ms Edhouse] changed the description of the bruise to a handprint during the phone conversation.”
(B)“[Ms Edhouse] said she had recorded what [X] had said using her mobile phone.”
(C)Under the heading “To your knowledge, how long have these harm or risk concerns been happening for the child, young person or unborn child?”, it is recorded:
[Ms Edhouse] has a pattern of reporting incidents of injury to [X] that she believes occur while [X] is in her father’s care. [Ms Edhouse] reports the injuries to the school well after the incident is reported to have occurred, so it is difficult to determine facts surrounding the incident. There is usually no physical evidence of injuries by the time [Ms Edhouse] reports incidents to the school.
(D)Under the heading “What worries do you have about the parent/carer/household member’s behaviour that impacts the child, young person or unborn child?”, it is recorded:
Throughout interactions with [Ms Edhouse] over the past 18 months, her behaviour has seemed erratic. She is often rushing through the school late, and is very emotional and teary when she speaks about [X]. These behaviours are heightened around times that custody and divorce proceedings are occurring. [Ms Edhouse] sees a psychologist.
(vi)There is an email from an afterschool care worker named “[Mr JJ]” relating to a conversation had with the mother in August 2024, which records:
This afternoon [Ms Edhouse] disclosed information that she was worried for [X] coming back from dad’s house with unexplained bruises.
[Ms Edhouse] confided she has a meeting with police occurring soon. She showed me a picture from Monday […] of [X’s] leg with a sizeable bruise she came home with on that afternoon (it appeared to be lighter colour as if a few days old and roughly palm shaped).
[Ms Edhouse] stated that she did not particularly trust the school as she believes the schools perception is that [X’s] dad is “the good guy” and she is “a crazy lady”
[Ms Edhouse] begged that we keep dad away from [X] outside of his mandated custody hours.
According to [Ms Edhouse], [X] had confided to a teacher that dad has hit her but this is unconfirmed with school staff.
The inconsistencies in this record to the mother’s deposed evidence are firstly, the mother has not provided to the Court any photograph that depicts bruising to X’s leg of the sort recorded in the note, and secondly the mother for the first time alleges that X made a disclosure to her teacher that the father hit her, which is not consistent with anything the mother has deposed, nor any of the school records.
Perplexingly, and despite the mother asserting that X had disclosed to her that the bruising had been caused by the father, the mother facilitated X’s time spending with the father over the weekend immediately following the attendance on the GP, and again the following weekend, which included an additional night of time spending at the request of the mother as she was unwell. Additionally, these latter periods of time spending took place after the mother had attended upon police, and arranged a “welfare check” by police upon X. It is difficult to reconcile the mother facilitating time spending between X and the father if she genuinely held the view that the father had caused her bruising injuries. That the mother did this suggests that she held no genuine concerns that X was at risk in the father’s care.
The mother also provided to the Court photos of X’s alleged bruises and an audio recording of X and the mother discussing a range of matters. In her affidavit of 9 September 2024 (earlier referred to), the mother did not depose to any context about when the photographs or recording were taken.
In relation to the photographs:
(a)The photo quality is poor and appears to have been colour enhanced in some way, as the images are an unnatural orange.
(b)It is not readily apparent what body parts the photos are of.
(c)In one of the photos a hand (inferentially the mother’s) is holding a limb, and it appears that there are darkened portions on the hand and the limb and, if anything, there appears to be bruising on the hand.
In relation to the audio recording, aside from the child early in the recording stating “he says get off me then he slaps me” and “sometimes… he’ll just stand up and… he’ll smack me”, the recording appears to have been taken at bedtime, it is not clear who X is referring to but presumably the mother asks the Court to infer it is the father, X is not distressed, and the mother appears to be repeatedly questioning X.
In her affidavit filed at 12.22 pm on 9 September 2024, the mother (at [56]) also referred to a video of X in the bath allegedly taken in November 2022. The video was provided to the Court and marked as Exhibit F19. The video was in relation to alleged bruising on X’s body observed by the mother on that occasion. Again, it is difficult to discern from that video bruising to X that would warrant concern.
The father and the ICL submitted that both recordings were evidence of the mother inappropriately interrogating X, presumably to bolster her allegations. On their face, without the mother having given context, and subject to any evidence the mother might ultimately give about the recordings, I accept those submissions.
I observe that in both recordings X is not distressed. Rather she is distracted by her bedtime routine in the audio recording, and bath time play in the video recording. In the bath time recording the mother appears to be goading the child to making disclosures about the father.
When all of the matters discussed throughout these reasons are taken together, I consider that despite the interim nature of these proceedings the findings that are likely to ultimately be made (on the balance of probabilities) are:
(a)That X had a bruise on her right leg which emerged sometime around August 2024 and was fading by the time of her attendance on the GP some nine days later.
(b)The bruise was no bigger than 5 centimetres in August 2024.
(c)The bruise did not wrap around X’s leg.
(d)The bruise did not resemble hand and/or fingertip patterns.
(e)The only person to whom X is alleged to have disclosed the injuries were caused by the father hitting her, was the mother.
(f)X did not make any disclosures that the father hit her or had caused the bruising to either staff at her school, or the GP.
(g)Rather, X consistently told the mother, the GP and school staff that she had gotten the bruise when bumping into another student at the school.
When considered in this light, the timing of the allegations and the events that then unfolded become of significant concern to the Court, particularly because the allegations:
(a)arose against the backdrop of Dr F’s third and fourth reports; and
(b)arose in the context of the father seeking to press his application to change X’s living arrangements.
More importantly however, and on the evidence presently before the Court (particularly the independent records), I cannot rule out that the recent events appear to be the mother involving X in her “deceptive behaviours” and/or “incorporating” X into her “lies”, to use the words of Dr F.
In all of these circumstances, I therefore consider it appropriate that the Court tread carefully and err on the side of caution and adopt Dr F’s recommendations for a change of primary care and supervised time spending with the mother, pending the testing of all of the evidence at trial. I see this arrangement as a necessary measure to promote the safety of X and to protect her from, any psychological harm she might suffer if left in the care of the mother (s 60CC(2)(a)).

The recent events, which have seen X exposed to repeated questioning by the mother, followed by attendances upon her GP, questioning by staff at her school and an attendance upon her by police, are troubling, particularly when the full context of recent events (as discussed throughout these reasons) is understood.
At this stage X is too young to have expressed views that the Court would give any weight to ((s 60CC(2)(b)).
I note however that the ICL met with X on 4 September 2024. The ICL advised the Court that X was well presented and delightful; with this presentation raising no immediate concerns for X’s safety in the mother’s primary care. Whilst the ICL is not an expert qualified to proffer opinions to which weight might be attached, it is of some comfort to the Court that X’s presentation to the ICL is consistent with that observed by Dr F in each of her Family Reports.
On any view, X is of a very young age, and as such, as identified by Dr F, she is vulnerable and susceptible to psychological harm, particularly if embroiled in the mother’s deceptive behaviour (s 60CC(2)(c)).
At this stage I accept Dr F’s views that both parents are able to meet X’s day to day needs. However, in light of all of the matters discussed herein, I must have real concern as to the mother’s capacity to provide for X’s psychological and emotional needs (s 60CC(2)(d)).
At this stage I accept Dr F’s views (which are supported by the ICL) that X has a strong attachment with each of her parents. This is a factor that has weighed heavily in the Court’s assessment of the present application. It is not lost on the Court that X has been meeting her developmental milestones, and that she appears to be progressing well. It is also not lost on the Court that the changes proposed by the father are significant, and would result in a substantial change to X’s living arrangements and her primary attachment to the mother. These factors however must be balanced against the very significant safety concerns that have emerged over the prolonged period of these proceedings as discussed throughout these reasons (s 60CC(2)(e)).
There are a range of additional relevant factors (s 60CC(2)(f)) as follows:
(a)The mother’s fabrication of her medical diagnosis, surgery, treatment and medical records is not one that can be understated. Importantly, it underpins Dr F’s diagnosis of the mother suffering from an unspecified personality disorder, and the risk factors that thereafter flow. At this stage I am prepared to accept Dr F’s assessment that the mother appears to minimise this conduct. What ultimately might be made of these matters remains a matter for careful consideration at trial.
(b)I am cognisant that during the hearings the father’s counsel pressed the implausibility of the mother’s assertion that the maternal grandmother is deceased, as against landing cards obtained under subpoena which appear to evidence that the maternal grandmother has travelled into Australia at least twice post-dating the date she is alleged to have died. While on its face this may be another example of the mother’s deceptive behaviour, I consider that this is a matter best dealt with at trial, where it may be possible for the Court to make findings.
For all of these reasons, I consider that it is appropriate to make orders as promoted by the father which would see a change of X’s primary living arrangement, for the father to have sole decision making, and for X to spend supervised time with the mother.
Whilst the father proposed that X only spend time with the mother on one occasion each week, I do not consider the same to be sufficient to maintain X’s attachment to the mother pending the final hearing. I am conscious that twice weekly time spending was raised by me at the hearing, and that the father was prepared to support the same. The father also agreed to meet the costs of the supervised time spending.
The legal representatives did not make any submissions about telephone communication between X and the mother, nor did the Court raise these matters with the parties during the hearing. In those circumstances, I do not consider that I can make orders in that regard. However, if the parties are able to agree a regime of regular communication between the mother and X by either telephone or FaceTime, with the father able to terminate such communications if they are inappropriate and/or if the mother or X are distressed, then those would be orders that I would be prepared to make by consent in chambers.
For all of the foregoing reasons, I now make those orders that appear at the commencement of these reasons.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 25 September 2024

File number(s):	SYC 4161 of 2021
Judgment of:	KARI J
Date of judgment:	25 September 2024
Catchwords:	FAMILY LAW – CHILDREN - Where the father presses an interim application to change the primary care of the child – Where the mother has fabricated a medical diagnosis, treatment and medical records - Where there has been an independent psychiatric evaluation of the mother undertaken by the single expert –Where the single expert considers the mother has an undiagnosed personality disorder – Where the single expert considers that the mother presents a risk of psychological and physical harm to the child - Where the mother makes recent allegations that the father has caused bruises to the child – Nature of interim hearing and fact finding - Where the mother’s evidence filed in these proceedings is not consistent with the reports she made to the child’s General Practitioner and school –– Assessment of whether the risk posed by the mother is chronic and underlying as against acute and immediate–– Where the Court cannot rule out that the mother has involved the child in her “deceptive behaviours” and incorporated the child into her “lies” – Where the Court considers the risk of harm posed by the mother is acute and immediate – Orders for the father to have sole parental responsibility for the child – The child is to live with the father – Where it would be detrimental to the child’s emotional wellbeing to separate her from either parent – Orders for the mother to spend supervised time with the child twice per week pending the testing of all of the evidence at trial
Legislation:	Evidence Act 1995 (Cth) s128 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 67ZBD
Cases cited:	Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman [2015] FamCAFC 104 Edhouse & Edhouse (No 2) [2024] FedCFamC1F 102 Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111 Goode & Goode (2006) FLC 93-286 Hall & Hall (1979) FLC 90-713 Marvel & Marvel [2010] FamCAFC 101
Division:	Division 1 First Instance
Number of paragraphs:	92
Date of hearing:	9 and 13 September 2024
Place:	Adelaide
Counsel for the Applicant:	Mr Grew
Solicitor for the Applicant:	Coleman Greig Lawyers
Solicitor for the Respondent:	Mr Lowry of Matt Lowry Criminal Law
Solicitor for the Independent Children's Lawyer:	Mr Holmes of Holmes Donnelly & Co Solicitors

SYC 4161 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR EDHOUSE Applicant
AND:	MS EDHOUSE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	25 SEPTEMBER 2024