Hagarty & Valenza (No 2) - [2023] FedCFamC2F 1651

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hagarty & Valenza (No 2) [2023] FedCFamC2F 1651

File number(s): TVC 838 of 2018

Judgment of: JUDGE CARTY

Date of judgment: 21 December 2023

Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Live with – Spend time with – consideration of the benefit to child of having a meaningful relationship with both parents – whether the child is at risk of harm in the household of the father – Where child is not at an unacceptable risk of harm in household of the father – whether child is at risk in household of the mother – Where child is at risk of psychological harm in household of the mother – Where there is a benefit to the child of having a meaningful relationship with both parents – capacity of each parent to meet the emotional needs of the child – impact on the child of proposed change in living arrangements –consideration of child’s right to share her Aboriginal culture with the mother and half-siblings and other people who share culture – order made for child to spend time with the father- order made for mother to have sole parental responsibility – presumption does not apply due to family violence – no co-parenting relationship

Legislation:
Evidence Act 1995 (Cth) section 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, Pt VII

Cases cited:
Briginshaw and Briginshaw (1938) 60 CLR 336

Hagarty & Valenza [2022] FedCFamC2F 95

Division: Division 2 Family Law

Number of paragraphs: 401

Date of last submission/s: 17 March 2023

Date of hearing: 4, 5 & 6 October 2022; 24 & 25 January 2023; and 3 March 2023

Place: Newcastle

Counsel for the Applicant: Mr Mueller

Solicitor for the Applicant: Grace Family Law Solicitors

Counsel for the Respondent: Ms Graves

Solicitor for the Respondent: Walsh Day Mihal Bassett

Counsel for the Independent Children's Lawyer: Mr Cairns

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

TVC 838 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HAGARTY

Applicant

AND:
MS VALENZA

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother will have sole parental responsibility for the child X, born in 2017 (“the child”).
3.The mother will notify the father in writing within seven days of making any decision about a major long-term issue with respect to the child, and the mother will provide the father with details of such decision, including the name and address of any medical practitioner or allied health professional who provides medical treatment for the child, and the name and address of any school where the child is enrolled.
4.The child will live with the mother.
5.The parents will do all acts and things required to facilitate the child spending time with the father in accordance with the following Order:

Immediate time for child with father
5.1Until the commencement of the Term 1 in 2024 the child will spend time with the father for not less than four hours on each of two consecutive days during Week 1 below, and for not less than 6 hours on each of two consecutive days during Week 2 below:
(i)Week 1 commencing 15 January 2024, and unless otherwise agreed from 10.00am until 2.00pm on two consecutive days; and
(ii)Week 2 commencing 29 January 2024, and unless otherwise agreed from 10.00am until 4.00pm on two consecutive days.

5.2For the purposes of Order 5.1 hereto the following provisions apply:
(i)The father will, within seven days of the date of these orders, nominate which two consecutive days in each of Week 1 and Week 2 he intends to spend time with the child.
(ii)Changeover will be supervised by City C Contact Service or City D Contact Service (collectively “the Contact Service”) and the times for changeover set out in Order 5.1 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”);
(iii)The mother or another responsible adult who is known to the child (“the mother’s nominee”) will deliver the child to the father at the commencement of time to the Contact Service, or the changeover location if the Contact Service is not available, and the father will return the child at the conclusion of time to the Contact Service, or to the mother or the mother’s nominee at the changeover location if the Contact Service is not available.

Spend time arrangements during school terms
5.3During Term 1, 2024 the child will spend time with the father on the 2nd and 6th weekend of the school term from 10.00am on Saturday until 4.00pm on Sunday, and the following provisions apply:
(i)Changeover will be supervised by the Contact Service and the times for changeover set out in Order 5.3 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”) and the mother or the mother’s nominee will deliver the child to the father at commencement of time at the Contact Service, or the changeover location if the Contact Service is not available, and the father will return the child to the mother or the mother’s nominee at the conclusion of time to the Contact Service, or at the changeover location if the Contact Service is not available.

5.4During Term 2, 2024 the child will spend time with the father on the 2nd and 6th weekend of the school term from after school or 3.00pm on Friday until 4.00pm on Sunday, and the following provisions will apply:
(i)The father will collect the child from school at the commencement of time.
(ii)Changeover at the conclusion of time will be supervised by the Contact Service and the times for changeover set out in Order 5.4 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”), and the mother or the mother’s nominee will deliver the child to the father at commencement of time at the Contact Service, or the changeover location if the Contact Service is not available, and the father will return the child to the mother or the mother’s nominee at the conclusion of time to the Contact Service, or at the changeover location if the Contact Service is not available.

5.5Commencing in Term 3 2024 and continuing throughout each school term thereafter the child will spend time with the father on the 2nd and 6th weekend of the school term from after school or 3.00pm on Friday until the commencement of school or 9.00am on the following Monday, extended to commencement of school or 9.00am on Tuesday if a long weekend, and changeover will be facilitated by the father collecting the child from school at the commencement of time and returning her to school at the conclusion of time.

Spend time arrangements during school holiday periods commencing from 2024
6.The parents will do all acts and things required to facilitate the child spending time with the father during the Tasmania School holiday periods in accordance with the following Order, unless otherwise agreed in writing between the parents:

Term School holiday periods
6.1During the Tasmania Term school holiday period at the end of Term 1, 2024 the child will spend time with the father during the first part of the school holiday period from after school or 3.00pm on the last day of the school term until 4.00pm the following Sunday and the following provisions will apply:
(i)The father will collect the child from school at the commencement of time.
(ii)Changeover at the conclusion of time will be supervised by the Contact Service and the times for changeover set out in Order 6.1 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”), and the father will return the child to the mother or the mother’s nominee at the conclusion of time to the Contact Service, or at the changeover location if the Contact Service is not available.

6.2During the Tasmania Term school holiday period at the end of Term 2, 2024 the child will spend time with the father during the first part of the school holiday period from after school or 3.00pm on the last day of the school term until 4.00pm the following Monday, and the following provisions will apply:
(i)The father will collect the child from school at the commencement of time.

(ii)Changeover at the conclusion of time will be supervised by the Contact Service and the times for changeover set out in Order 6.2 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”), and the father will return the child to the mother or the mother’s nominee at the conclusion of time to the Contact Service, or at the changeover location if the Contact Service is not available.

6.3During the Tasmania term school holiday period at the end of Term 3 2024 and during each Term school holiday period thereafter the child will spend time with the father from after school or 3.00pm on the last day of the school term until 4.00pm on the middle Sunday of the school holiday period, and the following provisions will apply:
(i)The father will collect the child from school at the commencement of time.
(ii)Changeover at the conclusion of time will be supervised by the Contact Service and the times for changeover set out in Order 6.3 may be varied in accordance with the availability of the Contact Service PROVIDED THAT in the event that the Contact Service is unable to facilitate supervised changeover then changeover will instead occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”), and the father will return the child to the mother or the mother’s nominee at the conclusion of time to the Contact Service, or at the changeover location if the Contact Service is not available.

Christmas School holiday periods
7.During the Tasmania Christmas School holiday period that commences in 2024 and in the Tasmania Christmas School holiday period each year thereafter the child will spend time with the father as follows:
(a)When the Christmas school holiday period commences in an even numbered year, from 9.00am on 13 January until 4.00pm on the last Sunday of the school holiday period; and
(b)When the Christmas school holiday period commences in an odd numbered year from after school or 3.00pm on the last day of school until 4.00pm on 13 January.
(c)For the purposes of Order 7 (a) changeover will occur as follows:
(i)The changeover will occur at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”); and
(ii)The mother or another responsible adult who is known to the child (“the mother’s nominee”) will deliver the child to the father at the commencement of time at the changeover location and the father will return the child to the mother or her nominee at the conclusion of time at the changeover location.

(d)For the purposes of Order 7 (b) hereto changeover will occur as follows:
(i)The father will collect the child from school at the commencement of time;
(ii)The father will return the child to the mother or the mother’s nominee at the conclusion of time at McDonalds City C, or such other location as the parents agree in writing (“the changeover location”).

Father to pay fees for supervision of changeover and costs of travel and accommodation
8.The father is responsible to pay the reasonable fees for the provision of any supervised changeover pursuant to these orders.
9.The father is responsible for his own and the child’s travel and accommodation costs for the purposes of the child spending time with the father pursuant to these orders.

Child’s communication with the father
10.The parents will each do all acts and things required to facilitate the child communicating with the father every Wednesday between 6.00pm and 6.30pm (Tasmania time) by video call, with the father to place the call to the telephone number supplied by the mother and the mother to ensure that her electronic device is switched on and has sufficient charge to facilitate the child’s communication with the father.
11.The parents will each do all acts and things required to facilitate the child communicating with the other parent at any reasonable time that the child requests to do so and each parent will ensure that the child has privacy to communicate with the other parent.
12.The parent who has the care of the child on any occasion which is set out below in this order will initiate and facilitate a video call for the child with the other parent at 9.00am (Tasmania time) on each of the following special occasions:
12.1Christmas Day;
12.2Easter Sunday;
12.3Mother’s Day when the child is in the care of the father;
12.4Father’s Day when the child is in the care of the mother;
12.5The Mother’s birthday when the child is in the care of the father;
12.6The Father’s birthday when the child is in the care of the mother; and
12.7The child’s birthday.

13.Within 21 days of the date of these Orders the mother will provide by email to the father a Post Office Box address or other address where the child may receive cards and letters sent to her by the father, and the mother will ensure that any postal items addressed to the child from the father are provided to the child in a timely matter.

Parental communication
14.The parents will communicate by text message or email, save for in an emergency where they will communicate via telephone call, in relation to matters concerning the child’s care, welfare and development.

15.Each parent will forthwith inform the other parent of his and her current mobile telephone contact details and current email address (“the contact details”) and will thereafter inform the other parent directly of any change to the contact details within 12 hours of a change occurring.
16.Each parent will inform the other parent as soon as practicable, and provide details of:
16.1Any medical condition or illness suffered by the child while in their care which requires the child to attend on a medical practitioner and the name and contact details for the medical practitioner upon whom the child attends; and
16.2Any medication that has been prescribed for the child, which needs to be taken by the child during any period that the child will be with the other parent, including the details as to the dosage.

17.The mother will inform the father in writing as soon as practicable of any specialist medical appointment that she makes for the child, including but not limited to an appointment with a psychologist, psychiatrist, counsellor or allied health professional, and the mother will provide the father with the name and contact details for such specialist, psychologist, psychiatrist, counsellor, or allied health professional.
18.The mother will forthwith provide by email to the father the name and contact details for the child’s current General Practitioner.
19.This Order is sufficient authority for the father to obtain information about the child which is ordinarily available to a parent from the child’s General Practitioner, and any medical practitioner, medical specialist, psychologist, psychiatrist, counsellor, or allied health professional who examines, assesses, or provides treatment for the child.
20.Within 14 days of the date of these orders, and within 14 days of the child’s subsequent enrolment at any school, the mother will do all acts and things and give all irrevocable authorities required to ensure that whichever school the child attends from time to time, may forward directly to the father, at his request, a copy of the child’s school reports and merit cards, and any written material pertaining to the child’s schooling.
21.This Order is sufficient authority for the father to obtain information about the child which is ordinarily available to a parent from any school where the child is enrolled and the father is at liberty to attend any school function or event, to which parents are invited PROVIDED THAT the father gives the mother not less than seven days’ notice in writing of his intention to attend the function or event.

Restraints
22.Pursuant to s. 68B of the Family Law Act 1975 each parent is hereby restrained from:
22.1Denigrating the other parent to the child or in the presence of the child;
22.2Permitting the child to remain in the presence or within the hearing of any person who denigrates the other parent, and each parent will immediately remove the child from the presence of any person who denigrates the other parent or any member of the child’s family;
22.3Showing the child any document filed in or created for the purposes of these proceedings and from causing or permitting any other person to show the child any document filed in or created for the purposes of, the family law proceedings;
22.4Discussing these Court proceedings in the presence of or within hearing of the child, and each parent shall immediately remove the child from the vicinity of any third person doing so;
22.5Subjecting or exposing the child to any form of family violence as defined by Section 4AB of the Family Law Act 1975, a copy of which is attached to these Orders; and
22.6Permitting the child to remain in the presence of any person who is perpetrating family violence.

23.Each parent will ensure that the child attends school on each day that school attendance is required unless the child is unable to attend due to sickness, emergency or a government or school directive.

NOTATION:
A.The words “in writing” when used in these Orders include written communication in the form of a text message or email.
B.Any parenting application filed by either parent within the next twelve months will, in the first instance, be referred to Judge Carty for consideration in chambers, including whether the matter will be listed for first return date before Judge Carty.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION

The applicant father Mr Hagarty (“the father”) and the respondent mother Ms Valenza (“the mother”) cannot agree about the parenting arrangements for their six-year-old daughter X, who has been at the centre of their conflict for most of her life.
X has lived with the mother, and three older maternal half-siblings, since the parents separated when she was about one year old. In early 2018 the mother relocated with X from Town R, near City E in Queensland to City H, New South Wales. In about early 2021 the mother relocated again with X to the City D Region of Tasmania, where X has since lived with the mother and the siblings.
X has spent infrequent and only supervised time with the father, who has remained living in Town R. In the current proceedings the father seeks a final parenting order that X move from City D to Town R to live with him.
The mother opposes the father’s application. She seeks an order that X continues to live in City D with the mother and spend time with the father in Tasmania under professional supervision.
The final parenting orders which each parent seeks have serious implications for X’s short‑term and long-term wellbeing.
RELEVANT BACKGROUND
In this background, statements of fact are to be construed as findings, unless otherwise stated.
The father was born in 1977. He is 45 years old. He lives alone in a large home which he owns at Town R and works fulltime as a tradesperson. At the date of hearing, the father was working away from home each week from 5.00am Monday to 5.00pm Thursday.
The mother was born in 1978. She is 44 years old. She lives with X, and the three maternal-half siblings, in the City D area. The mother does not want the father to know her residential address. She is self-employed in a business.
The child’s three maternal half-siblings (hereafter referred to collectively as “the siblings”) are the offspring of the mother and her former partner Mr G. The siblings are:
(1)Mr K born in 2004, currently 19 years old;
(2)L born in 2006, currently 17 years old; and
(3)M born in 2011, currently 12 years old .
The father and the mother met in 2011 and they commenced cohabitation in early 2012 when the mother and the siblings moved into the father’s home at Town R, which he had purchased in 2008 or 2009. The home is on a large block in a rural setting.
When the parents commenced cohabitation Mr K was 7 years old, L was 5 years old, and M was about one year old. Immediately before moving in with the father, the mother and the siblings were staying at temporary accommodation, about twenty-minutes’ drive away from Town R. The mother had separated from Mr G in about late 2010, and she and Mr G were thereafter involved in protracted family law parenting proceedings in City AH, finalised around late 2014.
The father was working away from the home, four days each week from Monday to Thursday. He would drive to Town AG, about 150km away, late Sunday afternoon or early Monday morning, and return home on Thursday afternoon.
The only child of the relationship, X, was born in 2017 at City E Hospital, Queensland. X’s birth was registered by the mother in 2017[1]. The father was not recorded on her birth certificate, which issued in 2018. Although the parents were living together at the time of the child’s birth, curiously the mother’s address recorded on X’s birth certificate is AJ Street, Suburb W, Queensland.
[1] Exhibit K
The parents separated finally on 26 April 2018[2] after the mother had relocated, with X and the three siblings, from Town R to City H in early 2018. The father consented to the mother moving to City H with X because the mother told him that the move was only temporary, for six months, and that she would bring X back to Town R monthly to spend time with him. The mother has conceded that she misled the father about her intention[3]. She says that she misled him so that she could escape from him. Clearly it was never the mother’s intention to return to Town R with the child, and nor was it her intention to take the child back to Town R to spend time with the father.
[2] The mother has maintained that the parents separated in January 2018.
[3] Family Report paragraph 10
The paternal grandparents, Ms Y and Mr AA, live in City H. The mother, and X and the siblings, moved into the paternal grandparents’ home at City H and lived with them there between early 2018 to mid-2018[4]. Since the mother and children moved out from their home, X has spent only one occasion of time with the paternal grandparents, which occurred during a supervised visit with the father at City H Children’s Contact Centre on 9 March 2021.
[4] Affidavit of Ms Y filed 29 January 2021 paragraphs 11 and 17
X spent no time at all with the father from 7 April 2018 until September 2018 when interim parenting orders were made in the Federal Circuit Court of Australia at City E. X has spent no unsupervised time with the father since the parents separated.
On 5 July 2018 the father filed an Initiating Application in which he sought final parenting orders including that the parents have equal shared parental responsibility for X, and that X live with the mother at City E, and spend time with the father during his rostered time off, as well as on special occasions. The father sought an order that, save and except for the mother relocating X to City E, the mother be restrained, without his written consent, from relocating the child a distance any greater than 50km from her current town of residence, which at that time was City H. The father sought an order to permit the child to have a passport, to be held by the mother, and an order permitting both parents to travel overseas with the child.
In 2018 the mother attended City H Police Station and reported several instances of alleged indecent treatment by the father of two of the siblings during the period from 2016 to early 2018. Mr K, L, and M were interviewed by the Joint Investigation Review Team (“JIRT”) at City H. Handwritten transcripts of the interviews with each of the children have been tendered to the Court.[5] The allegations are discussed further in these Reasons. City H Police forwarded the matter to Queensland Police at City E for further investigation.
[5] Exhibit X
On 18 September 2018 the mother filed a Response to Initiating Application. She sought final parenting orders, including an order that she have sole parental responsibility for the child, that the child live with the mother, and the mother have leave to amend her response after the release of a Family Report in relation to the time the child spends with the father.
On 24 September 2018 interim orders were made in the Federal Circuit Court at City E for X to spend time with the father for two hours each on 24 September 2018 and 25 September 2018. It appears that time occurred at the father’s home at Town R supervised by the one of the mother’s friends.
In late 2018 Family and Community Services, New South Wales (“FACS”) informed the father[6] that a child protection assessment had been undertaken which substantiated, on the balance of probabilities, that he used excessive discipline against a child in his care, but it was not assessed that this caused ‘significant harm’ (emphasis added). FACS reported concerns about both parents, including the following:
“…as the wishes of [Ms Valenza] are not met by statutory agencies, contact information has changed in its gravity and seriousness…There are worries that reports have been made to satisfy [Ms Valenza]’s pursuit of family law action in relation to custody of [X].”[7]
[6] Father’s affidavit paragraph 103 and Annexure H9
[7] Family Report paragraph 169
In late 2018, following an interim defended hearing, interim orders were made including that the child live with the mother in City H, and spend time with the father supervised at City H Children’s Contact Service whenever the father was able to travel to City H. The parents were required to do all acts and sign all documents necessary to ensure that the father is registered on the child’s birth certificate. The parenting proceedings were transferred to the Federal Circuit Court at City V.
In November 2018 the father proposed that the paternal grandparents be considered as supervisors of his time with X.
On 12 November 2018 procedural orders were made in the Federal Circuit Court at City V.
In February 2019 the father proposed that X’s time with him be unsupervised, or alternatively supervised by the paternal grandparents. The parents reported that X had spent time with the father, in accordance with the orders made on 26 September 2018, twice in December 2018 for two hours each time, and three times in February 2019 for two hours each.
On 14 February 2019 an order was made for the preparation of a Family Report. The Court noted that the father had previously sought an order for DNA testing, and that he had withdrawn that application and concedes that he is the father of X.
On 28 February 2019 the father filed an Amended Initiating Application. He sought an order to facilitate the child’s time with him if the Court permitted the child to remain living with the mother in City H and leave to amend his application upon the release of the Family Report or inspection of subpoenaed material.
On 1 May 2019 the parents were each interviewed by the family consultant at the City V Registry of the Court and the child was observed with each parent, and the siblings who attended with the mother.
Around mid-2019, the mother contacted Queensland Police and reported that she had further information about the father, based on the children’s memories and her own memory. In mid‑2019 the mother attended the City E Police Station with Mr K and L, who were each interviewed by Queensland Police. The interviews are discussed further in these Reasons.[8] Notes produced by Queensland Police relevantly record “Nil fresh disclosures made, re‑enforced original complaints. Time frame narrowed down.”
[8] Exhibit W contains the DVDs of the Qld Police interviews with Mr K and L
In mid-2019 the father presented to City E Police Station where he was interviewed, arrested, and charged with offences relating to Mr K and L. Those charges were finalised in mid-2020, with no plea entered and no evidence to offer. At the date of the hearing, no further criminal charges have been laid against the father, notwithstanding the mother’s efforts to have police charge him again[9].
[9] Exhibit Q
On 14 June 2019 the Family Report prepared by family consultant Ms J was made available to the Court. It is in evidence in these proceedings and is discussed further in these Reasons.
On 12 July 2019 the mother filed an Amended Response seeking an order that she have sole parental responsibility for the child, and that the child live with the mother and spend no time with the father.
On 19 July 2019 the Court made an order appointing an Independent Children’s Lawyer for the child. The matter was adjourned to December 2019 in the hope that some information would be available about the father’s outstanding criminal charges.
On 16 December 2019, following an interim defended hearing, Judge Terry dismissed the mother’s interlocutory application filed on 28 October 2019, seeking an order to permit her to relocate the residence of the child from City H to a location within 450 kilometres of Sydney CBD.
On 16 January 2020 the mother filed a further application in a case seeking an order that she be permitted to relocate the child’s residence to Region O in New South Wales.
On 10 February 2020, after a defended interim hearing, Judge Terry made further interim parenting orders. Provided the mother supplied a letter from her employer confirming that she had been offered a position in the area, the child would live with the mother in Region O. A further interim order was made that the child spend time with the father supervised in City H until the relocation occurred, and thereafter at a supervised contact centre in Sydney or City Z. The father was restrained from removing the child from school or any other place where the mother has placed her, and the mother was restrained from removing the child from Australia without the written consent of the father. The child’s name was placed on the airport watch list for twelve months. The mother was ordered to provide all required information to Qld Registry of Births, Deaths, and Marriages to enable the father to be recorded on the child’s birth certificate.
In 2020 the father was registered on the birth certificate for X, some seventeen months after the court had first ordered that the registration occur.
In mid-2020, as noted previously, the criminal charges against the father in Queensland were finalised without entry of plea and with no evidence to offer.
On 3 September 2020 orders and trial directions were made and the matter was listed for final hearing for three days commencing on 3 March 2021.
In late 2020 L was apparently suspended from BB School at City H for physical violence. The mother sought the assistance of her sister Ms CC.[10] In late 2020 L arrived in Tasmania. Around late 2020 the mother arrived in Tasmania, where she remained until early 2021, before returning to City H to pack up her house.
[10] Ms CC provided an affidavit in support of the mother’s case and was not required for cross-examination.
It appears that around early 2021, the mother relocated to Tasmania with the children, including X. The mother’s relocation of X to Tasmania was inconsistent with the orders made on 10 February 2020 permitting a relocation to Region O in New South Wales provided that the mother had evidence of employment there.
The matter was not reached on 3 March 2021 and was adjourned for further consideration on 7 July 2021.
On 30 May 2021 the child spent supervised time with the father at City H Children’s Contact Centre. It appears that between July 2021 and January 2022 the mother failed to facilitate supervised time for the child with the father at City H Children’s Contact Centre, although monthly contact visits had been agreed and arranged.
On 1 February 2022, following an interim defended hearing, the current interim parenting orders were made[11] which provide for the child to spend supervised time with the father on one occasion each month at B Children’s Contact Service in City C. The child has electronic communication with the father once each fortnight supervised by either the City C or City D Children’s Contact Services. The mother is responsible to pay the airfare for the father to travel from City E to City C, and the parents share equally the fees for supervision of time. The parties were granted conditional leave to inspect the Family Report prepared in the matter of Valenza and Mr G[12] concerning the mother’s three older children, however apparently that report has been lost in transit and the document has not been made available for inspection.
[11] Hagarty & Valenza [2022] FedCFamC2F 95
[12] …, the parenting proceedings between the mother and Mr G concerning the maternal half siblings which commenced in 2012.
On 16 September 2022 the father filed an Amended Initiating Application in which he sought final parenting orders including an order that he have sole parental responsibility for the child, that the child live with him, and that the child spend time with the mother, initially for three hours each month supervised by the Children’s Contact Service in City E and thereafter on the first weekend of each month in City E and for one half of school holidays.
On 29 September 2022 the mother filed an Amended Response to Initiating Application in which she sought final parenting orders including an order that she have sole parental responsibility for the child, that the child live with her, and that the child spend time with the father on one occasion each month supervised by B Children’s Contact Service at City C.
THE FINAL HEARING
The final hearing proceeded on 4, 5 and 6 September 2022 and was not completed in the three days allocated. It was adjourned part heard and allocated a further three days of Court time on 23 and 24 January 2023 and 5 March 2023. On 5 March 2023, the sixth day of the final hearing, there was insufficient time to hear the final submissions. Although oral submissions would have been preferable, the efficient use of Court time resulted in a decision to set a timetable for the filing of written submissions. The Court has carefully considered the detailed written submissions filed for each party, when considering what orders to make in the best interest of X.
The father was represented by Mr Mueller of Counsel. The mother was represented by Ms Graves of Counsel. The Independent Children’s Lawyer was represented by Mr Cairns of Counsel.
The Independent Children’s Lawyer submitted that it is very difficult to determine what is in the child’s best interests in this matter. I accept that submission. There is an abundance of evidence which points to the benefits of X having a meaningful relationship with both parents, and there is an abundance of evidence which points to risk factors in each parent’s household. As noted previously, the child has lived in the sole care of the mother since the parents separated in April 2018, and she has spent only limited time with the father and always under supervision.
Documents relied upon
The father
In support of his case the father relies upon:
(1)Case outline filed 30 September 2022;
(2)His Affidavit filed 16 September 2022;
(3)Affidavit of Mr AA filed 29 January 2021;
(4)Affidavit of Ms Y filed 29 January 2021;
(5)Single Expert Report prepared by Dr F dated 26 September 2022;
(6)Family Report prepared by Ms J dated 14 June 2019; and
(7)Written Submissions filed 17 March 2023.
The mother
In support of her case the mother relies upon:
(1)Further Amended Response filed 29 September 2022;
(2)Her Affidavit filed 27 September 2022;
(3)Affidavit of Mr K filed 23 September 2022;
(4)Affidavit of Ms EE filed 27 September 2022.
(5)Affidavit of Mr FF filed 23 September 2022;
(6)Affidavit of Ms CC filed 23 September 2022; and
(7)Affidavit of Mr GG filed 27 September 2022.
The Independent Children’s Lawyer
The Independent Children’s Lawyer relies upon the Single Expert Report of Dr F and the Family Report of Ms J.
Exhibits
The parties each tendered into evidence documents which were marked as Exhibits, discussed further in these Reasons.
Proposals of the parties
The father
During final submissions the father adopted the final parenting orders sought by the Independent Children’s Lawyer[13] except for proposed orders 10 and 11 setting out the proposal for child to spend time with the mother in Tasmania, and how costs of travel are to be paid.
[13] Exhibit Z
In summary the father proposes orders that:
(1)The father have sole parental responsibility for the child[14].
[14] The father proposes that he notify the mother of any long-term decisions he must make for the child and seek and consider the mother’s views before notifying her of the decision he has taken
(2)The child live with the father in Town R.
(3)For two months following the making of the orders, there is a moratorium on the child spending time or communicating with the mother, to assist the child to settle into her placement with the father.
(4)After the expiration of two months and for the next 12 months, the child spend time with the mother one weekend per month in City E, supervised by City E Children’s Contact Centre, on each of Saturday and Sunday for two hours.
(5)Thereafter, and for the next 12 months, the child spend time with the mother in City E on one weekend every two months from 5.00pm Friday until 5.00pm Sunday.
(6)Thereafter the child spend time with the mother:
(i)In City E one weekend every two months from 5.00pm Friday until 5.00pm Sunday;
(ii)For one week of each term school holiday period; and
(iii)During Christmas School holiday periods, including Christmas Day in alternate years.
(7)Following the two-months’ long moratorium on the child’s time and communication with the mother, the child thereafter have telephone or video calls with the mother each Wednesday, and on special occasions with the parent does not then have the care of the child
(8)The parents will communicate about the child’s medical needs and will exchange information and authorities to enable each parent to receive information about the child from her treating medical practitioners and teachers.
(9)The parents be restrained from denigrating the other parent or allowing the child to remain in the presence of any other person who denigrates the child’s parents.
(10)The parents be restrained from discussing the Court proceedings with the child.
(11)The father to arrange for the child to attend on a General Practitioner to obtain a referral to a suitably qualified mental health practitioner, and the father to act on any referrals and abide by recommendations of mental health practitioners in relation to management and treatment of the child.
The mother

The mother seeks orders in accordance with her Further Amended Response to Initiating Application filed 29 September 2022, as follows:
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)That the child spend time with the father on one occasion each month supervised by B Children’s Contact Centre at City C (“the service”) on such dates and at such times as nominated by the Director or Manager of the service.
(4)The father pays all costs associated with spending time with the child.
The Independent Children’s Lawyer
The Independent Children’s Lawyer tendered a draft proposed order after hearing the evidence of family consultant Ms J[15] and an amended draft order after hearing the evidence of the single expert Dr F[16].
[15] Exhibit Y
[16] Exhibit Z
The orders proposed by the Independent Children’s Lawyer and adopted by the father, apart from proposed orders 10 and 11, are summarised above in the father’s proposal.
The difference between the father’s proposal and the proposal of the Independent Children’s Lawyer relates to the frequency of the time that the child would spend with the mother overnight during school terms. The Independent Children’s Lawyer proposes that in addition to the child spending time with the mother in City E on one weekend every two months, the child spends time with the mother in Tasmania one weekend every two months, in the alternate month to the City E weekend, and that the father is responsible for the costs of travel and accommodation for the child and himself in Tasmania.
ISSUES TO BE DETERMINED AND MATTERS FOR CONSIDERATION.
The Court must determine the following issues:
(1)The live with arrangements for the child.
(2)The spend time with arrangements for the child.
(3)The allocation of parental responsibility for the child.
The Court must consider in particular:
(i)Whether the child is at risk of physical or psychological harm in household of the mother from being exposed or subjected to abuse, neglect, or family violence, and whether identified risks can be ameliorated only by an order that the child lives with the father.
(ii)Whether the child is at risk of physical or psychological harm in household of the father from being exposed or subjected to abuse, neglect, or family violence, and whether identified risks can be ameliorated only by an order that the child’s time with the father occurs under long-term professional supervision.
(iii)The benefit to the child of having a meaningful relationship with both parents.
(iv)The parenting capacity of each parent.
(v)The impact on the child of a change of residence.
(vi)The impact on the child of the proposed order for long-term professional supervision of any time that she spends with the father.
(vii)The practical difficulties and expense of the child spending time with and communicating with each of the parents.
(viii)The child’s right to enjoy her Aboriginal culture.
(ix)Any family violence involving the child or a member of the child’s family.
LEGAL PRINCIPLES IN PARENTING PROCEEDINGS
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B of the Act sets out the objects of Part VII and the principles underlying the objects. The objects and underlying principles are reproduced below:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
When the Court is required to make a parenting order, it must regard the best interests of the child as the paramount consideration.[17] In determining a child’s best interests, the Court must consider the matters which are set out in s 60CC of the Act.
[17] Section 60CA
The two primary considerations[18] which the Court must consider are:
(i)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(ii)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
[18] Section 60CC(2)
When applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm, than to the benefit of having a meaningful relationship with both parents.[19] The Court must ensure that any parenting order it makes does not expose a person to an unacceptable risk of family violence.[20]
[19] Section 60CC(2A)
[20] Section 60CG(1)(b)
The Court must also consider several additional considerations, when they are relevant to the circumstances of each case.[21]
[21] Section 60CC (3)
Section 61DA of the Act provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must consider making an order for the child to spend substantial and significant time with each of the parents, if such order is consistent with the best interests of the child and reasonably practicable.[22]
THE EVIDENCE
[22] See subsection 65DAA of the Act
The father
In early 2012 the mother called the father from the temporary accommodation where she and the children were staying and told him that there had been a fight between other people staying there, requiring police attendance. The father offered for the mother to move into his house with her three children and the parents commenced their cohabitation. During cross examination the father said that he was responsible for paying the mortgage and utilities throughout the relationship. He denied telling the mother that it was his house, his water, and his electricity.
The father has consistently denied the mother’s allegations that he perpetrated physical, sexual, emotional, and financial family violence upon her. He deposed that he has never perpetrated any form of family violence against the mother.[23] He admits that he pushed past the mother to get away from her when she cornered him and “… in …[his]…face and scream and yell to antagonise him”. The father says that he has never assaulted the mother.
[23] Father’s affidavit paragraph 114
The mother contends that the father forced her to have sex with him in 2016, when X was conceived. The father has consistently denied that assertion, and credibly maintained his denial under cross examination. The father has not been charged with a sexual assault offence relating to the mother.
The father agrees that late in the relationship, about 12 months prior to separation, he installed surveillance cameras at the property at Town R. It is common ground that there were no surveillance cameras inside the house. There were two cameras inside the shed, one facing the backyard and one facing the driveway. The father denied telling Mr K that he could see him from work. The father conceded that on one occasion when he was at work and the mother was breastfeeding X, he said to her “put your boobs away”. The mother was in the shed, and the father could see her on his phone. The father says that there was nothing sinister in his remark, and that there was no other occasion when he watched the family while he was at work. He said that did not use the surveillance cameras to control the family, and he denied the mother’s assertion that he told her that, while he was living in the United Kingdom, he’d installed cameras to spy on people.
The father expressed his view that the mother’s relocations, and her allegations against him, are entirely an attempt to sever his relationship with X.[24] He said that during these proceedings the mother has manipulated the truth in furtherance of that objective.
[24] Family Report paragraph 73
The father deposed that the mother told him that she had a troubled childhood, that her ex‑partner was abusive, and that she suffered with depression, and he says that he always tried to be supportive towards her.[25] He asserts that the mother’s behaviour was, at times, manipulative and erratic[26] and he says that he became wary and untrusting of her over time[27] and that there were a few incidents which caused him concern about the mother’s honesty.
[25] Father’s affidavit paragraph 14
[26] Ibid paragraph 44
[27] Ibid paragraph 15
The father deposed to incidents when the mother threatened to harm herself, including on an occasion around 2014 when M was with her in the car[28], and in 2014 when the mother sent the father a text message in which she wrote about harming herself,[29] and in mid-2014 when the mother wrote about harming herself.[30] The father says that he encouraged the mother to see a psychologist, and she had several sessions with Dr HH, for which the father paid. The father says that the mother was prescribed medication for her mental health, which she did not take.
[28] Ibid paragraph 32
[29] Ibid paragraph 34
[30] Ibid paragraph 35
The father has consistently denied allegations that he psychologically, physically, verbally, and sexually abused the maternal half-siblings. He says that he is completely disgusted by the nature of the allegations, and that he would never treat any child in an inappropriate way and that he loved the children very much and treated them as his own[31].
[31] Father’s affidavit paragraph 91
The father deposed that he and the mother have very different views on parenting which made their relationship stressful. He deposed that the mother allowed the children to watch violent movies and to play inappropriate video games, and that he told her this was unsuitable.[32] The father says that the mother would undermine him and gave the children the impression that he was “mean” and was picking on them if he said “no” to them. The father reported that from 2012 until late 2017 he spent most of the week, and sometimes block periods of time, working away from home and he eventually stopped saying “no” to the children.[33] He says that when he looked after the children, and the mother was not present, he got on well and had fun with the children and that they generally complied with his requests.
[32] Father’s affidavit paragraph 42
[33] Family Report paragraph 70
The father says that the children did not clean up after themselves and that he would return from work and find piles of unwashed towels, and toys scattered in the yard. He says that he was always telling the children to hang their towels up to dry, and to put their toys away so that he could mow the lawns. He says that he was frustrated to arrive home dirty from work and find not a single clean towel to use, so he purchased individual towels and installed large towel racks in the bathroom. The father says:
“[Ms Valenza] and I agreed that the children were to take their clothes with them into the bathroom and get changed in the bathroom to ensure that their towels were hung up in the bathroom and did not end up on the kids bedroom floors.”[34]
[34] Ibid paragraph 44
The father denied running over the children’s toys deliberately with a motor vehicle and denied that he deliberately destroyed the children’s property.
The father says that he encouraged the boys to go outside and do things, and he gave them a toolbox and encouraged them to build things and showed them how to fix their scooters and maintain their bikes. He says that he encouraged Mr K to be involved in sports and bought the children good bikes. He attended every weekly sports meet. He says he paid for sports lessons for M. He says that he tried to teach the boys right from wrong and about morals and respect. The children were given jobs to do around the home, and they had the opportunity to earn pocket money by doing optional jobs around the house.
The father has acknowledged that he made some poor parenting decisions during his relationship with the mother. When he spoke with the family consultant on 1 May 2019, the father acknowledged that he often clashed with Mr K and L due to his tendency to take on the role of the disciplinarian when he was home.[35] He used a stern voice when disciplining the children, but he denies ever yelling or screaming at them, and he did not smack the children because he considers that it is an inappropriate form of discipline.
[35] Family Report paragraph 74
The father said that Mr K preferred playing video games to doing chores. The father acknowledges that some of his conduct towards Mr K was inappropriate, including telling Mr K that he was lazy.
The father said that L was a more willing child than Mr K and that L worked hard at school but was not academic. He said that L had some behavioural issues. L’s behaviour at school was problematic on some occasions, as evidenced in records produced by AF School[36] which record several minor incident reports about L’s disruptive behaviour between mid-2015 and late 2015[37]. In late 2015 the mother reportedly informed L’s classroom teacher that there would be consequences for L’s behaviour at school, and that his electronic devices would be taken away. The notes record “She said he hasn’t been made to sleep outside but has been put outside for a timeout before.”[38]
[36] Exhibit F
[37] The reports include L being non-compliant with teacher instruction, acting in a bullying behaviour towards staff and students, and screaming loudly, mimicking the bell.
[38] Exhibit G
The father said that L had a habit where he would squeal at the top of his voice “like a little girl.”[39] The father admits that he said to L on a couple of occasions to “stop being a little bitch.” The father has acknowledged during these proceedings that there were inappropriate things to say to L.
[39] Father’s affidavit paragraph 115
The father concedes that he once referred to Mr G as “a paedophile” and a “homeless man on the street” and that he said Mr G didn’t deserve time with his children.
The father denies that he is racist, and he denies that he made racist remarks to the mother or the children. He said that he has visited Town JJ (Tasmania) with the mother and her family. He has not conducted research into the S People.
Alleged maltreatment of Mr K in 2012.
When the mother and the children moved in to live with the father, his friend Mr KK was living in the home. In about early-2012, Mr KK’s wife and two sons moved into the home and lived there until about mid-2012, with the father, the mother and the siblings.
The father admits that he confronted Mr K, after he was told that Mr K had pinned one of the sons to the ground and spat in his face. The father’s evidence in chief is that Mr K ran away from him, that he chased Mr K and eventually caught him, and that he and Mr K ended up on the ground. The father says he told Mr K “very firmly” that to spit in someone’s face was completely unacceptable and he made Mr K apologise to the other child.[40]
[40] Ibid paragraph 12.
The father was cross-examined about this incident. He recalled that he’d understood that Mr K’s conduct was not accidental. He denied standing over Mr K and he denied that he said to Mr K “don’t fucking do it again.” He agreed that he chased Mr K. He said he grabbed Mr K by the arm and that Mr K fell to the ground, and he got down to Mr K’s level and said “don’t ever do that again. That is disgusting. You don’t do that to your worst enemy and spit in their face.” The father’s evidence that he “got down” to Mr K’s level appears inconsistent with his evidence in chief that he and Mr K “ended up on the ground” but was not explored further in cross examination.
The father denied “spear tackling” Mr K, he denied that Mr K was crying, and he denied that he’d hurt Mr K. He agreed that he was angry with Mr K and that he yelled at him but denied screaming in Mr Ks’s face the whole time. The father said that he wasn’t impressed with Mr K’s actions.
The father has acknowledged during the current proceedings that the way he handled the above situation with Mr K was not appropriate. The father said that instead he should have sat down with Mr K to explain what Mr K did wrong.[41]
Alleged inappropriate supervision of Mr K and L when showering.
[41] Ibid paragraph 13
The father says that the mother was relaxed about the children’s hygiene, and that when the children and mother moved in with him L complained that his penis was sore.
The father instructed the boys on how to clean themselves properly, including making them pull their foreskins back while in the shower. The father sometimes supervised the boys in the shower. He denies that he acted inappropriately and denies that he stayed in the bathroom with the boys for lengthy periods. He said that he would go into the bathroom on occasions to check that the children were washing themselves properly, because L suffered from an infection due to not washing properly. He says that he monitored the boys for about the first six months, when they were about 7 years and 5 years old, before trusting them to clean themselves without the need for further supervision.
During her cross examination of the father, Learned Counsel for the mother put to the father that L had never had an infection in his penis, and that what the father said in his affidavit about this was false. During the mother’s oral evidence, it became clear that L had attended at the hospital due to an infection.

There are also text messages in evidence which demonstrate that in mid-2015 the parents discussed L’s infection and medical attention[42]. By that time the father had stopped supervising the children in the shower.[43]
Excessive discipline involving L and the bike.
[42] Exhibit A
[43] Mr K gave evidence under cross examination that by the time he started High School in 2015, the father had stopped making the boys wash themselves.
There was a FACS investigation in 2018 which the father understands relates to the incident where it is alleged that he pushed a bike onto L. The father has consistently denied that he deliberately pushed a bike onto L.[44] He says that he was helping L put his bike on a safety step and that L insisted he could do it without the father’s help. The father let go of the bike which fell on L. The father says he helped L free himself from under the bike and made sure that he was not hurt. When speaking with the family consultant the father acknowledged that he was not as protective as he could or should have been, and that he should not have let go of the bike, and the father concedes that he could have acted more protectively towards L during this incident.
[44] Father’s affidavit paragraph 104
The father was informed by letter dated late 2018 that FACS substantiated that:
“…on the balance of probabilities, you did use excessive discipline against a child in your care at the time, however it is not assessed that this has caused “significant harm’” and that the father has “…not been identified on the State record as a “Person Causing Harm…”.
Alleged common assault on Mr K.
The father has consistently denied that he assaulted Mr K by strangling him in his bunk bed.
In mid-2019 the father was arrested and charged by Queensland police with offences relating to Mr K. As noted already, in mid-2020 that matter was finalised with no plea entered as there was no evidence to offer. The father maintains that the charge against him was due to the mother seeking to gain advantage in the parenting proceedings.
The allegations of assault is considered further in these Reasons.
Alleged indecent treatment of L.
The father has consistently denied that any of his conduct towards the siblings amounts to a criminal act, and he denies that he perpetrated sexual abuse upon Mr K, L, or M.
When the father spoke to the family consultant, he denied any sexually inappropriate behaviour towards L or Mr K.[45] He conceded sitting on L, describing it as a fun-type wrestle but denied that he was ever naked when he did so, and he denied ever “[sexually assaulting]” L or threatening to do so. The father conceded that he once made “a joke” when Mr K was to attend a sleepover, when he told Mr K “Watch out you don’t get [assaulted].”
[45] Ibid paragraph 162
In mid-2019 the father was arrested and charged by Queensland police with offences relating to L. As noted already, in mid-2020 that matter was finalised with no plea entered as there was no evidence to offer. The father maintains that the charge against him was due to the mother seeking to gain advantage in the parenting proceedings.
The allegation of indecent treatment is considered in more detail later in these Reasons.
Allegation that father “groomed” M.
The father denied any inappropriate treatment of M. He says that because M was an infant when he and the mother commenced their relationship, he formed a close bond with M, and he loved her as his own child. The father says that the mother used his love for M as a means of manipulating him during the parents’ relationship.[46]
[46] Father’s affidavit paragraphs 59-62
The allegation of grooming is considered in more detail later in these Reasons.
Other allegations of mistreatment of the children.
The father denied that he had spoken about or shown L or Mr K any information about “[a sex act]”. He denied that he thought it was funny to talk about penises, or that he was always talking about penises and how funny they are.
Alleged excessive alcohol use by father.
The father denies the mother’s allegations that he drank alcohol to excess.[47] The father’s denial is inconsistent with his concession when speaking with the family consultant that there were occasions when he would have a “big night” drinking and that on occasions he would drink up to half a bottle of spirits.[48]
[47] Ibid paragraph 117
[48] Family Report paragraph 174
The father deposes that he rarely drinks above the legal driving limit, and only on special occasions and that he does not drink alcohol during the week. He says he would not drink alcohol if X was in his care. He has one conviction for drink driving in 2008 and no offences since.
Care of X during relationship
When X was born in 2017 the father was working full time from 6.00am until 6.00pm each weekday. He assisted with bathing and feeding X and with her nighttime routine when he came home from work, and he helped care for her on his days off.
Time and communication with X since separation
The father sets out the supervised time or skype calls that took place between X and himself at, or facilitated by, the City H Contact Service after the interim parenting orders were made in September 2018[49]. The father says that the mother delayed in completing the intake assessment forms for the Contact Service between 27 September 2018 and 27 December 2018. The father says that the mother did not present X for supervised visits between May 2019 and October 2019[50]. During COVID 19 restrictions in 2020 mostly the interactions between the child and the father took place by way of supervised Skype calls. The father says that the mother did not facilitate supervised time between 17 August 2020 and 14 November 2020. In late May 2021 the child spent time with the father supervised in City H for the last time, and then not again until she commenced to spend supervised time with him at the Children’s Contact service in City C around the start of 2022. From early 2022, except in June 2022, the child has spent time with the father once per month at the City C Centre. The father travelled to City C in June 2022 to spend time with the child and was informed that she “didn’t wait for him to arrive”.
[49] Ibid paragraph 123
[50] Father’s affidavit paragraph 128, 129
The father deposes as to the considerable costs he has incurred to spend time with the child[51] including travel costs and fees for supervision. He says that he has spent more than $190,000 on legal fees, including fees to defend the criminal charges.
[51] Ibid paragraph 147, 148
The father pays child support for X in the sum of $1,521 each month, at the date of hearing.
In response to questions in cross examination about his proposal for a change of residence for X, the father said that it will be quite hard for X initially and is a radical change in circumstances for her. He said he would speak with a child psychologist and obtain advice and that he had not yet done so. He said that currently when he spends time with X she is initially “standoffish” but by the end of the session she is loving and warm with him.
The father said that he has always been willing to work with the mother in relation to the child.
The father thought that X should spend time with the parent with whom she does not live twice in each school term and during school holidays.
The father’s demeanour as a witness
The father was generally an impressive witness who was patient and respectful during the lengthy cross-examination of him. Against the barrage of accusations concerning his conduct, the father was calm and he gave his evidence in a thoughtful manner. He made appropriate concessions.
The father displayed limited insight into the impact that some of his conduct had on the mother and on Mr K and L. Except for the inconsistency in his evidence about how Mr K ended up on the ground in the spitting incident, and inconsistent evidence about his alcohol consumption during the parents’ relationship, the father’s evidence was plausible and consistent and by and large he presented as a truthful witness.
Ms Y
Ms Y provided an affidavit in the father’s case and was cross-examined. Ms Y is X’s paternal grandmother. She was born in 1954 and is retired. She lives in City H with the paternal grandfather Mr AA, and they have been married for over 50 years.
X is the youngest of Ms Y’s five grandchildren. X has not spent time with the paternal grandparents since she moved out from their home in mid-2018 with the mother and her siblings. Ms Y says that it “broke their hearts” that they have not seen X. She says that the mother has not allowed any contact, including at City H Children’s Contact Service.[52]
[52] It appears that there may have been one occasion when the paternal grandparents attended a supervised visit for X with the father in City H, with the mother’s permission.
Ms Y spoke frequently with the mother during the parents’ relationship, and she thought that she and the mother “had a very good relationship”. She says that she and her husband treated the mother as a daughter-in-law, and they treated Mr G’s children as their own grandchildren.
Ms Y says that at times during the parents’ relationship she was concerned about the mother’s mental health because:
(a)In approximately 2015 the mother telephoned in a highly distressed state and threatened to harm herself, saying words to the effect “because it is [Mr Hagarty’s] favourite place”. The mother said that she was depressed because the father did not want to marry her.
(b)In 2017, when she was 7 months pregnant with X, the mother telephoned and was hysterical, screaming and crying and threatened to “[harm herself]”. Ms Y telephoned the father and heard him attempting to calm the mother.
(c)The mother was “obsessed” with marriage, and she was angry and upset that the father had not asked her to marry him.
Ms Y said that generally she and the mother got along well when the mother and children lived in the Hagarty household at City H between early 2018 and mid-2018. She said that the mother is a wonderful cook, and that she regularly cooked meals while living in the household, which Mr AA and Ms Y thoroughly enjoyed. Ms Y said that the mother had left the cleaning up to her and she had a chat to her about the mess and that the mother seemed upset about her comments.
The mother has described Ms Y as “lovely” and the paternal grandparents as “very caring” and she acknowledged that the children had positive relationships with the paternal grandmother.[53]
[53] Family Report at paragraph 61
Ms Y observed that the mother criticised Mr G and complained about him in the presence of his children, including referring to him as “…” Ms Y’s observation is credible because the mother admits that she referred to Mr G as “…” and says that she now regrets doing so because it was inappropriate.[54]
[54] Mother’s affidavit paragraph 84
During cross examination by Counsel for the mother, Ms Y denied the mother had ever raised a concern with her about the father’s conduct, or that she made any allegation about the father being abusive or violent. Ms Y denied telling the mother that “the abuse runs in the male side of the [Hagartys]” and she denied that she saw the father behave in an aggressive manner at a family BBQ at City H in 2017.
Ms Y denies that she ever witnessed the paternal grandfather touch M inappropriately, and she denies that she has ever heard the paternal grandfather say anything inappropriate to or about M. Ms Y confirmed that she believes that any allegation that Mr AA acted inappropriately with his step-granddaughter LL is entirely untrue.
Ms Y has had two operations for a medical condition. She has never been bedridden, but she has suffered from pain. Her condition has not prevented her from undertaking everyday chores.
Ms Y deposed, and confirmed under cross examination, that if the Court orders that X live with the father, then she and her husband will immediately relocate to City E to assist him with X, including before and after school care.
Ms Y acknowledged the very strong bonds between X and her siblings and said that she would support X to maintain those bonds by facetime, phone, and school holiday contact. Ms Y said “I would like to see [X] happy. She needs a father in her life.”
Ms Y says that she would like to spend time with X if the mother would allow it, and if the mother would comply with Court orders.
Ms Y gave consistent, plausible and child focussed evidence. I accept the evidence of family consultant Ms J, during cross examination by Learned Counsel for the mother, that the essence of her interviews with the paternal grandparents indicated that they are very supportive of the children and that whatever the children needed they would provide.
Mr AA
Mr AA provided an affidavit in the father’s case and was cross-examined. Mr AA is X’s paternal grandfather. He was born in Country MM in 1951 and migrated to Australia in 1955. He is retired, and lives in City H with the paternal grandmother.
Mr AA suffered a medical episode in 2009. He was asked about irritability due to chronic pain and answered that since ceasing work in 2018 he no longer suffers chronic pain.
Mr AA deposes that he was shocked and distressed that the mother has alleged that he has done anything inappropriate with his step-granddaughter LL, and he denies that allegation. Mr AA says that the mother’s allegations that he inappropriately touched M are “entirely fabricated. I would never do anything like that.”[55]
[55] Affidavit of Mr AA paragraph 25
Under cross examination Mr AA denied telling the mother that she needed to move back to City E and do what the father said. Mr AA said that the mother told him that she was going back, and he did not bring the topic up with her. The mother agrees that she mislead the father and told him that she would return to City E, and she agrees that she moved out of the paternal grandparents’ home without telling them that she was leaving. The paternal grandfather’s evidence is credible because until the mother left his home, neither he nor the father had any reason to believe that the mother did not intend to return to City E.
Mr AA said that after the mother left his home in mid-2018, she told him that the father had choked her. Mr AA told the mother that he didn’t believe her. When he was asked in cross examination why he didn’t believe the mother Mr AA replied “That’s not in his nature. Have you seen the size of her?” While his answer lacks insight and demonstrates his lack of understanding of the nature and extent of family violence, it does not enhance the mother’s credibility, and the mother’s allegation that the father choked her is considered further in these Reasons.
Mr AA said that he could not recall the mother ever telling him that the father had strangled Mr K.
The Mother
The mother alleges that, during the parents’ relationship, the father perpetrated physical and sexual abuse upon her eldest two children, “groomed” M, and subjected her to sexual abuse and family violence. The father has consistently denied the mother’s allegations.
The mother deposed that the father “controlled what we ate on a daily basis”. She told the family consultant[56] that she and the children had endured “daily” abuse and control by the father, and at the same time reported that the father was generally home a maximum of three nights each week, and that prior to late 2017 he was sometimes absent for weeks at time. It appears unlikely, in those circumstances, that the father was able to control or abuse the mother and the children daily, and more likely that the mother has exaggerated the frequency and the extent of the father’s alleged control and abuse.
[56] Family Report paragraph 55
The mother deposed that the father treated M differently from the boys, and that he told the mother that he didn’t think that Mr G deserved to spend time with M. She says that the father did not have a high opinion of Mr G. The mother concedes she referred to Mr G as “…”.[57] Sometimes the mother sought advice from the father about how she could manage M’s interactions with Mr G[58] and she told the father in 2013 “I am so angry with [Mr Hagarty], how can I really get to him? Hurt him financially?”[59] In her message to the father in 2014 the mother refers to “…our baby, our [M]…”[60]
[57] Mother’s affidavit paragraph 84
[58] Mother’s affidavit annexure V01
[59] Father’s affidavit Annexure H14
[60] Father’s affidavit Annexure H3
The mother’s evidence is that the children were not safe in Mr G’s care due to his drug dependency and unstable living arrangements.[61] The information which the father had about Mr G came from the mother, and the father’s low opinion of Mr G was most likely informed by what the mother told the father about Mr G.
[61] Mother’s affidavit paragraph 12
In her affidavit the mother deposed that she and the father agreed to try for a baby in 2016, but she told him that she no longer wanted to do this, because she was too old, and her mental health was too fragile. The father agreed, in cross examination, that he had an ovulation calculator on his phone. The mother does not allege that the ovulation calculator was deployed by the father without her consent. The mother alleges that in 2016 the father forced her to have sex with him, and that this resulted in X’s conception. On 1 May 2019 when the family consultant asked the mother to reflect on her pregnancy with X, the mother said that she “really wanted a baby.” She said that the parents tried to fall pregnant for some time before X was conceived.[62] The family consultant noted that the mother also said that the father wanted a baby and told her that she owed him one, and she just complied. When the family consultant asked the mother to explain the apparent inconsistency, the mother replied: “I wanted a baby and then I changed my mind”. The mother reiterated that X was conceived by sexual assault.[63]
[62] Family Report paragraph 56
[63] Family Report paragraph 56
The mother presented to City E Hospital on several occasions throughout her pregnancy with X and did not disclose that she had experienced abuse by the father. The mother deposed that she was too frightened to report her allegations of abuse during the relationship. In text messages which the mother sent to the father in late 2016, she robustly criticised him for his treatment of Mr K and L[64]. In one message the mother expressed her disappointment about the father’s conduct:
“…every single day how you’ve been over the last 7 days …hostile… constantly dictating and riding the boys about shit every minute of the day. Everything that comes out of your mouth is complaint, rules, what we haven’t done or have to do or just your own idea of humour…it’s a relief when you go…nothing we do is or will ever be clean enough nor will your ever understand or be reasonable about general day to day stuff…it’s always your rules and they are unliveable. Things just aren’t fun with you, you have no energy or zest for life and happy childhoods, you treat us like you don’t want us here anymore…”
[64] Mother’s affidavit annexure V01
The mother’s assertion that she was too frightened to report that the father had sexually assaulted her lacks credibility in light of her willingness to robustly criticise him in her text message to him during the pregnancy, and in light of the evidence that at all relevant times the mother was free to come and go from the home which she and the children shared with the father, as she pleased. As noted previously, throughout the parents’ relationship the father mostly worked and lived away from the home for most of each week, and he only reduced the time he spent working away after X was born in 2017.
Alleged abuse of Mr K and L.
The mother reported to the family consultant on 1 May 2019 that:
“…on one occasion when the father was naked, he pinned [L]’s arms down on the ground and rubbed his penis in [L]’s face. She said that [Mr K] punched the father to get him off [L]. The mother alleged that the father would taunt the boys and threatened to “[perform a lewd act on]” them and take photos of them while they slept.”[65]
[65] Ibid paragraph 150

I accept the evidence of Dr F that X is settled in the care of the mother and her stepfather Mr FF, and that comfortable interactions between the child and her mother and stepfather were observed.
In May 2019, after the observation session, X approached L for a hug and he was observed to respond warmly. I accept the mother’s evidence that the child is close to each of her siblings and that she has important sibling relationships with them. X’s sibling relationships are an important consideration when deciding the future parenting arrangements for X.[164]
[164] Ibid paragraph 224
The paternal grandmother expressed her love for the child, and it is common ground that she provided care for X in 2018 when the mother moved into the home with the four children and lived there with the paternal grandparents. There is no doubt that X had a positive relationship with the paternal grandmother until early 2018.[165]
[165] Family Report paragraph 61
After X’s birth in 2017 the father changed his employment arrangements so that he could spend more time with her, and he reported to the family consultant that he and X had established a close relationship prior to separation.
The father has been excluded from decision-making for the past five years. Nonetheless he has been consistent and persistent in his efforts to spend time with the child. The sheer volume of interlocutory applications which the father has filed, and his compliance with Court orders, including the orders requiring supervision of his time with the child, involving extensive travelling between City E and City H and between City E and City C, speak to the father’s strong commitment to spending time with X and developing her relationship with him.
The relocation of the child’s residence to a place a considerable distance away from City E, in early 2018, and then her relocation even further away in early 2021, combined with the mother’s insistence that time between the child and the father is professionally supervised, which has involved considerable practical difficulty and expense, and the border closures and other restrictions due to COVID-19, which resulted in the suspension of face to face time at the contact service in 2020, have all made the father’s participation in the child’s life since early 2018 more difficult. Clearly the father has a strong desire to spend time with and to communicate with the child, and to participate in making major decisions relating to her care, welfare, and development.
Both parents have fulfilled their obligation to maintain the child. The father has demonstrated his commitment to the child and his appropriate attitude to the responsibilities of parenting by paying a substantial and appropriate amount of child support.
X attends AC School in City D Tasmania. She commenced Kindergarten in 2022.[166] X’s Kindergarten Report indicates that she is assessed to be meeting all developmental markers. I consider that the child’s opportunities to share her Aboriginal culture with the mother and maternal family and other people who share S Culture will be diminished if she moves to Queensland to live with the father.
[166] Mother’s affidavit Annexure V 11
The father and the Independent Children’s Lawyer submit that the only way to ensure that X can have a relationship with both parents, is for there to be a change of residence for X so that instead of remaining with her mother in Tasmania, X would move to live with the father in Queensland. Counsel for the father, and Counsel for the Independent Children’s Lawyer, properly concede that this would involve enormous upheaval for the child who currently has a very limited relationship with the father, and who has always been cared for by the mother in a household where she has important relationships with the three older siblings, and the regular presence of a stepfather, access to grandparents and other maternal family members.
The father and the Independent Children’s Lawyer submit that a change of residence now is probably better for X in the long term, and that her long-term best interests justify the considerable disturbance in her life in the short term if she is moved away from her primary caregiver and all she knows in Tasmania. Put another way, it is submitted that the short-term harm to the child of moving is outweighed by the long-term harm of being deprived of a relationship with the father. The child is still young and certainly the Court must consider what orders will promote her best interests in the long term as well as in the short term.
The father is untested as a primary caregiver for X.[167] It appears that the father has not engaged in any parenting course to assist him to enhance his parenting skills, and he has not engaged with any counsellor who might assist him to reflect on the parenting practices which he employed at times during the parents’ relationship. When asked by the family consultant, back on 1 May 2019, to reflect on the assessment that he had used excessive discipline on the children the father said, “I told them I disagree with it”.[168] The family consultant noted that:
“Despite making some minor concessions about the negative impact on the children of the way he spoke at times in the household, the father generally maintained the view that there was not anything inappropriate about his parenting.”[169]
[167] Single Expert Report [31]
[168] Family Report paragraph 168
[169] Family Report paragraph 168
As discussed already, it would be an enormous upheaval for X to move away from the household of the mother, where she has the benefit of established and close relationships with her siblings and extended maternal family members, and into the household of the father where she has no siblings, and where she would need to re-establish a relationship with the father and his parents, while coping with separation from her primary caregiver and her family and community in Tasmania. The father admitted in cross examination that it would be a difficult adjustment for X and that she will require psychological support and assistance to cope.
The child would live either alone with the father or be substantially cared for by the paternal grandparents who would move to Town R assist him, noting that he works fulltime. The father deposes that his employer is supportive of him working near home at reduced hours so that he can care for X. The father says that he can work at AD Company, 25 minutes away from home, and he said that he is prepared to stop working full time if it means that X can live with him.
While it is easy to predict that in the short to mid-term the child will suffer considerable grief and loss because of being moved far away from the maternal family, it is harder to predict how the child would be impacted in the long term. To maintain a healthy relationship with both parents, while at the same time coping with a massive change to her longstanding living arrangements, X would require the support and assistance of both parents. I have no doubt that the father is willing and capable to provide the support required to assist X to maintain her meaningful relationship with the mother, if X moved to live with him.
I am not convinced that the mother would be able to support X’s relationships with herself and maternal family members if the court makes the decision to move X. Such a decision would likely be devastating for the mother, who already struggles with her mental health. The mother may not have the capacity to put aside her feelings of grief and loss if X is removed from her care, in order to support X and I consider that there is a real possibility that if X moves to live with the father, the mother will not be able to support her in that placement and X may lose her relationships with the mother, Mr K, the other siblings and maternal family members who may be aligned with the mother. The loss of X’s relationships with the mother and the maternal family will be very detrimental for her wellbeing and impact her future development. She may come to resent the father if she perceives that he has caused her to suffer such loss.
I accept the evidence of the single expert who considers that a change of residence for X is ‘an extreme action’ which the child will find very stressful. Dr F expressed her opinion that:
“The emotional difficulty that the child would undoubtedly experience if she changes residence and moves from the primary care of the mother in Tasmania, and is separated from her siblings and all of the maternal family, and goes into the care of her father thousands of kilometres away, into a household where she is an only child, is a factor which weighs heavily in favour of the child remaining in the care of the mother.”
I consider that the likelihood of harm to X if she is removed from the mother’s household and placed into the household of the father presents a significant risk of harm and is only justified if the risk of harm in the mother’s household is immediate and serious. For the reasons already discussed, I do not consider that the risk of harm in the mother’s household is so immediate and serious as to justify the removal of X, and I consider that the identified risks can be ameliorated provided that X commences to spend time with the father in a manner which will enable her to develop a meaningful relationship with him, that is strictly in accordance with any spend time with orders made by the court, and provided that the mother is restrained from causing or permitting X to be exposed to any denigration of the father.
Dr F has assessed that X is a smart child who is likely to have the emotional and social resources to adapt to a change of residence. It follows logically that X has the likely resources to adapt to spending periods of time with the father which are unsupervised, and which increase gradually over a short period of time, leading ultimately to the opportunity to develop and maintain a meaningful relationship with the father which meets X’s needs. It is important for X that time with the father is built up gradually so that she has an adequate opportunity to adjust to the change from supervised to unsupervised time. The extent to which X is able to cope is likely to depend not only on the father’s capacity to help her to feel comfortable, but also importantly on the level of support and encouragement that the mother is able to provide.
One of the many complexities which the Court must consider in this matter is the practical difficulty and the expense which is involved in X spending time with both her parents, given the very significant geographical distance between their households. The travelling distance between the parental homes is more than 2800 kilometres, and would take several days to travel by car, and requires stops overnight along the way. The travel cannot be undertaken entirely by road, due to the need to cross Bass Strait by sea or air. Travel by sea across Bass Strait takes about ten hours. It appears that no commercial airline offers a non-stop flight between City D or City C and City E. It is necessary to change flights and the flying time alone is in the vicinity of five hours. If flying, there is the need to travel to and from the airports, and the transit time at the airports between flights. Regardless of which home X lives in, there are considerable practical difficulties and expenses involved in her spending time with the other parent.
Fortunately, both parents work, and each parent has had the financial resources to contribute to the cost of the travel, and in the father’s case he has paid for the costs of his accommodation in Tasmania. Wherever X lives the cost involved in her spending time with the other parent are significant.
X is still heavily reliant upon her caregivers to meet her physical, emotional, and educational needs. As discussed at some length already, there are limitations in the parenting capacity of both parents.
The father is not an experienced parent. He has not previously provided primary caregiver for a child for any extended period, and his capacity to provide full time care for X remains untested. Some of his parenting practices during the parents’ relationship were unhelpful and have damaged his relationships with Mr K and L. The father came and went from the home at Town R, working away from home during most of the time that the mother lived there with the children. This was a blended family which made the father’s authoritarian and at times punitive parenting style inappropriate. I accept that the father did not intend to cause the children harm. It is more likely that, for the most part, he tried to provide encouragement, care and support for the children in quite challenging circumstances, but he lacked the maturity and the experience to be able to consistently provide appropriate care.
I accept the submission of Counsel for the Independent Children’s Lawyer that the father has mainly acknowledged, in his evidence, his previous poor parenting decisions, and demonstrated that he has improved insight. I consider that the father demonstrated inconsistent degrees of insight and empathy into the needs of L and Mr K, but that he has demonstrated during the course of these proceedings, that he is capable of attuning himself to the needs of X, and the observations of his interactions with X throughout many years of supervised visits, and when he was observed with X by the family consultant and the single expert support that conclusion.
The father gave evidence that he can put into place new work arrangements so that he can be more consistently home around out-of-school hours to be available to X if she lives with him, however it remains his case that he will rely on his parents to assist him with X’s care. It is important to consider that currently X has a very limited relationship with the father which needs to be re-established. X needs regularity and consistency in the spend time with arrangements to rebuild her relationship with the father.
I accept the evidence of the paternal grandparents that they would relocate from City H to City E to assist the father to care for X, around his work roster, if the Court orders a change of residence. X has not spent time with the paternal grandparents for many years, and it is unlikely that she has any memory of either of them, noting her age when contact ceased. X has had no relationship with either of the paternal grandparents for most of her life to date. Not only would X be required to adapt and cope with the significant changes involved in moving from the mother’s household into the care of the father, and re-establish a secure relationship with him, she would also have to re-establish her relationships with the paternal grandparents.
The Court accepts the father’s evidence that he would seek out the assistance of a child psychologist to help X to settle into his household and cope with separation from the mother and her siblings and other close maternal family members, but a psychologist cannot be there all the time to support X and she would largely have to rely on the support of her family.
The mother has been the primary carer for the child, certainly since the parties separated. The father says that the mother has not provided stability for the children in that she has changed their schools and day-care and relocated them. The unstable parenting arrangements which were in place for Mr K and L have already been discussed at some length in these Reasons. Equally concerning is that, in the course of the these proceedings, the mother chose to relocate X from City H to Tasmania without the consent of the father and in breach of a Court order. That is a serious matter for the court to consider in determining what orders to make in the best interests of X. It appears that the mother may require some professional support to assist her to comply with Court orders, as any further breach of a Court order is likely to have very serious ramifications for X’s wellbeing and stability, and may well leave the Court with little alternative other than to reconsider whether or not there is a benefit to X of maintaining a meaningful relationship with the mother and whether the cost of doing so is outweighed by the risk of psychological harm.
X is currently enjoying stability in her living arrangements at home and in her schooling, as evidenced by the assessment conducted by Dr F when she attended at the mother’s home to observe and interview X, and X’s school reports attached to the affidavit of the mother. I am satisfied that the mother is currently providing appropriate day to day care for X and that the mother is attending appropriately to X’s physical and educational needs.
As already discussed, I consider that the mother’s capacity to support X’s emotional and psychological needs is limited and needs to be improved. The mother’s professed unremitting negative view of the father and her ongoing pursuit of allegations against him using police and associated agencies, raises concern that she will align X and cause long term harm to the child.
The mother identifies as a proud Aboriginal woman from the S Nation. She has been recognised and accepted as an Aboriginal person by the S Aboriginal Community passed by the Aboriginal Corporation Tasmania on or about mid-2017[170] shortly before X’s birth. An important consideration in this matter is that X is an Aboriginal child, through her maternal lineage, of the S People of Region T of Tasmania. X has a right to share her culture with the maternal family and others who share her heritage and culture.
[170] Mother’s affidavit Annexure V12
In his Initiating Application filed in mid-2018, the father identified that the mother is of Aboriginal origin, which contradicts the mother’s report to the family consultant in 2019 that she withheld her Aboriginal cultural heritage from the father[171]. The mother reported that he was openly denigrating of Aboriginal people in the presence of the children[172] and Mr K has alleged that when the father found out that the family were of Aboriginal descent, he racially abused the family and put them down. The father has denied that he is racist, and he denies that he racially abused the family. The Court has identified that the mother exaggerated and embellished her evidence to portray the father as sinister and thereby gain ascendancy in these proceedings. The Court has identified that Mr K is loyal to the mother, and I consider that he is closely aligned with her. I am not satisfied, to the required standard of proof, that the father did racially abuse the family. If the father is racist, I consider that he would not racially abuse X and I accept his evidence that he will support her to exercise her right to enjoy her Aboriginal culture and share the culture with other people I am satisfied that the father will do his best to provide opportunities for the child to participate in her Aboriginal culture.
[171] Family Report paragraph 48
[172] Family Report paragraph 48
X is identified as an Aboriginal child in her schooling and medical records, and I am satisfied that if she remains with the mother in Tasmania, she will be able to enjoy her Aboriginal heritage and culture with her maternal family and other people who share the culture. If the child were to move to Queensland and live with the father then, axiomatically, she will not have the same opportunities to share her S Aboriginal culture as she has while living on S Country in Tasmania, and this would be a significant loss for the child.
It has been difficult for the father to demonstrate his attitude to the responsibilities of parenthood, because has been excluded from decision-making for the past five years. I find that the father has demonstrated an appropriate attitude to the child and to the responsibilities of parenthood because:
(a)Notwithstanding the considerable challenges involved in spending time with the child since separation in 2018, including the significant distances involved in travel, and while dealing with the police investigation and the criminal charges, not only has the father persevered, but he has committed significant resources to provide opportunities for the child to spend time with him, and he has been consistent in his efforts to spend time with the child.
(b)The father has paid an appropriate amount of child support for the child.
(c)The father has demonstrated that he is prepared to prioritise the child’s needs above his own, including on 18 August 2022 during the observation conducted by the single expert, when he agreed to end the visit early at X’s request, despite the considerable distance he had travelled to participate in the assessment and his desire to spend more time with X.[173]
[173] Single Expert Report [31]

The mother has demonstrated an appropriate attitude to the child and to the responsibilities and duties of parenthood, insofar as she has provided for the child’s day to day needs and her educational needs.
The mother told the single expert that she has no objection to supervised contact between X and her father and that she is willing to transport X to City C for the contact visits to take place. This indicates that the mother is willing and able to facilitate a relationship for X with the father, albeit that she seeks that the time be supervised.
If the Court orders unsupervised time for the child with the father, then there appears to be no reason why the mother, or another responsible adult who is known to the child, for example X’s stepfather or her step-grandfather, could not transport X to a changeover location in either City D or City C.
It appears on the evidence that there has never been a family violence order in place involving the child of a member of the child’s family.
For the benefit of each of the parents, the definition of family violence, set out in Section 4AB of the Act is reproduced below:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Prior to the final hearing, it was difficult to identify which parent held the balance of power in their relationship. Having heard and carefully considered the evidence, the Court does not accept the mother’s contention that she was a victim of family violence at the hands of the father, to the extent that the mother has alleged. The father did push the mother on one occasion when he was intoxicated in 2016, but otherwise I am not persuaded that he perpetrated family violence on the mother at all, and I am not satisfied that he sexually assaulted the mother in 2016.
I am not persuaded that the father controlled or coerced the mother during their relationship. She was free to come and go from the father’s household with the children as she pleased, and indeed she did so. I do not accept that the mother returned to the father’s household because she was experiencing family violence, or because she was a victim of family violence. The mother is an intelligent and resourceful woman who made up her own mind about where she would live, and I consider that she returned to the father’s home on multiple occasions because it suited her to do so at that time.
The father admits that he installed security cameras to his property, namely two in the shed, one facing the backyard and one facing the driveway. The Court rejects the mother’s submission that by doing so the father engaged in family violence. Counsel for the mother asked the family consultant about whether the allegations the mother made about the father’s controlling behaviours and family violence fell within the consultant’s understanding of “coercive control”. Ms J said that:
“… aspects of control and coercion are features of coercive control, but they don’t exist in isolation to other features, which this matter had. While there are allegations of coercive control, there are counter-allegations of the facts. So just the presence of an allegation of control doesn’t equate to a definition of “coercive control.”
I consider that the mother perpetrated family violence towards the father on the occasions when she threatened to harm herself.
I am not satisfied that that the paternal grandfather sexually abused any young female relative. Under cross examination the mother said that she only came aware of this concern after she moved to City H in early 2018. The only documentary evidence which the mother has provided in support of her concern is a contact record produced by FACS dated 2 October 2018, months after the parents had finally separated and is not in any way sufficient to persuade the court that the paternal grandfather poses a risk of harm to X.[174]
[174] Exhibit R
Whichever orders the Court makes in this case, there remains the risk of further litigation.
If there is a failure to comply with the final parenting orders and the matter comes back before the Court, then there will inevitably be further consideration of the implications for the child of remaining in the mother’s household where the dominant view of the father is a negative one.
Whichever orders the court will make it is necessary, for the personal protection of the child, that an order be made restraining the mother by injunction from denigrating the father and from causing or permitting the child to remain in the presence or within hearing of any other person who does so. To be clear the court will make orders that mandate that the mother will ensure that the child is not subjected or exposed to her distorted and harmful view of the father, or to anybody else’s harmful view of the father.
Parental Responsibility
The Court has found that both parents engaged in family violence, the father by pushing the mother on one occasion, and the mother by threatening self-harm to coerce or control the father. The presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility does not apply. Even if the presumption did apply, I consider that it is rebutted by evidence that establishes that it is not in the best interests of the child for the parents to have equal shared parental responsibility for her.
The father said, during his oral evidence, that he has always remained willing to work with the mother, but he submits that the co-parenting relationship has irretrievably broken down and that there is no prospect of the parents being able to communicate in relation to major long‑term decisions for the child.
The mother submits that there is no trust or ability to communicate in respect of X and that she should not be put in a position where she is expected to communicate with the father about major long-term decisions for X.
I am satisfied that the parents are unable to engage in the consultation which is required to try and reach agreement about major long-term decisions for the child.
There will not be an order for equal shared parental responsibility, and consequently the Court is not required to consider whether it is in the best interests of the child, and reasonably practicable, for her to spend equal or substantial and significant time with each parent. The Court is at large to consider what arrangements will best promote the children’s best interests having regard to the objects and principles in section 60B and the primary and the additional considerations in section 60CC.
CONCLUSION
Live with arrangements for the child
X “presented as a bright, sociable and active child with numerous interests.”[175] X has always lived with the mother, and her siblings. She is currently settled in her life in Tasmania, where she has lived since about early 2021. She is progressing well at school.
[175] Single Expert Report [19]
The single expert observed X in her home in August 2022. X spoke with Dr F in detail about her everyday life, and shared a photo album of her activities, her friends, and her family. The room that she shares with her sister is described as a “child-friendly and well-appointed space”. The single expert observed comfortable interactions between X, her mother, and her stepfather. The stepfather was observed to be caring and attentive towards X, and the single expert assesses that X has formed a secure attachment to him.
X has started school and established new friendships there. The evidence establishes that the mother is meeting X’s needs, including by providing stable accommodation and support for her education.
X would need to leave her settled life behind and move a considerable distance away from the mother, to live with the father in City E. The mother will be very unhappy if the Court orders that X moves to live with the father, and it will be an outcome likely to further entrench the negative view of the father which is held by the mother and others in her household.
No party sought an order which would sever the relationship that X has with the mother and the father and the Independent Children’s Lawyer seek orders for X to spend time with the mother, if she lives with the father. If X moves to live with the father, the risk remains that she will be exposed to the negative view of her father when she spends time in the mother’s household. There is no evidence that the mother, or Mr K, or the maternal grandmother, have shared their view of the father with X.
The father gave evidence that, after an initial period where X is standoffish with him, she is warm and loving towards him. That evidence indicates that X has not been exposed to the negative view of the father which is held by certain members of the mother’s family.
The enormous upheaval which the child would experience, and the risks that the upheaval entails, have been discussed already in these Reasons. Overall, I am not satisfied that the risk of harm to the child in the household of the mother is such as would warrant her being removed from the mother’s care. On balance, I consider that the risks to X in the mother’s household, that she will be exposed to the negative view of the father and lose her relationship with him, can be ameliorated by:
(i)An order that provides for X to spend regular time with the father; and
(ii)An order that the mother is restrained by injunction from denigrating the father to or in the presence of the child, and which requires her to remove the child from the presence of any other person who denigrates the father.
The mother is on notice that there are several aspects about her attitude to parenting, and her parenting capacity, that are of concern the court, and which would support the Court making an order that the child live with the father. On balance, I consider that it is in the best interests of X that she remains living with the mother, provided that the mother strictly complies with Court orders for the child to spend time with and communicate with the father. The orders for X to spend time with the mother require the mother to encourage and facilitate the relationship for X with the father. The mother loves X and wants her to reach her full potential and grow into a happy and well-adjusted adult. X will reach her full potential if she has the benefit of a meaningful relationship with both parents, which can be achieved if both parents comply with Court Orders.
Spend time with arrangements for the child.
The mother concedes that X needs to know her father. She has expressed her willingness to transport X to a Contact Centre. This indicates that the mother has the capacity to support X’s relationship with the father.
The Court has found that there are no unacceptable risks to X in the household of the father and therefore there is no need for the time that X spends with the father to be supervised in future. It is appropriate, given X’s age, and in the circumstance where she has not spent time with the father outside of a contact centre to date, to commence the unsupervised time slowly and give X, and the father, time to gradually rebuild their relationship and adjust to the Court orders. X is assessed as a “bright and active child who has the potential to thrive in a stable environment.”[176] Careful consideration has been given in the crafting of the final parenting orders, to the child’s need for stability.
[176] Single Expert Report [65]
The Court is satisfied that it is in the best interests of X for her to be provided with opportunities to develop her relationship with the father, taking into consideration the distance and travel involved in X spending time with the father. X will have the opportunity to spend time with the father in Tasmania during school terms and for block periods during school holidays. She will be able to enjoy a variety of appropriate childhood experiences with the father, and weekly video calls with him will help her maintain her relationship with the father between the face to face spend time periods.
The father has the means to travel to Tasmania to spend time with X and, once the time progresses to block periods in the school holidays, he can travel with her back to Town R and spend time with her there, or in City H where the paternal grandparents live.
Changeover ought to be supervised, if possible, initially but any lack of availability ought not impede X spending time with the father, and there are acceptable public places that the parents can meet for changeover, or where the mother will be able to facilitate changeover by way of her nominee if she prefers.
The court is firmly of the view that X will benefit from having a meaningful relationship with the father and the Orders which the Court will make are intended to facilitate the development and maintenance of such a relationship. X’s long-term wellbeing, including her right to have the benefit of a meaningful relationship with both her parents, must be prioritised. It is imperative that the mother does all things required for her to adjust to the final parenting Orders, and she must comply with the orders. If she does not, there may be no alternative in the future but to make an order that X relocate to live in the primary care of the father.
Allocation of parental responsibility for the child
The Court has determined that, on balance, it is in X’s best interests that she continues to live with the mother in Tasmania. I have discussed the reasons why the Court will make an order for sole parental responsibility. As X will continue to live with the mother, it is in her best interests to make an order that the mother will have sole parental responsibility for her.
The Court is satisfied that the orders at the forefront of these Reasons are the orders which are in the best interests of the child in this matter.

I certify that the preceding four hundred and one (401) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty.
Associate:
Dated: 21 December 2023

File number(s):	TVC 838 of 2018
Judgment of:	JUDGE CARTY
Date of judgment:	21 December 2023
Catchwords:	FAMILY LAW – PARENTING – Parental responsibility – Live with – Spend time with – consideration of the benefit to child of having a meaningful relationship with both parents – whether the child is at risk of harm in the household of the father – Where child is not at an unacceptable risk of harm in household of the father – whether child is at risk in household of the mother – Where child is at risk of psychological harm in household of the mother – Where there is a benefit to the child of having a meaningful relationship with both parents – capacity of each parent to meet the emotional needs of the child – impact on the child of proposed change in living arrangements –consideration of child’s right to share her Aboriginal culture with the mother and half-siblings and other people who share culture – order made for child to spend time with the father- order made for mother to have sole parental responsibility – presumption does not apply due to family violence – no co-parenting relationship
Legislation:	Evidence Act 1995 (Cth) section 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, Pt VII
Cases cited:	Briginshaw and Briginshaw (1938) 60 CLR 336 Hagarty & Valenza [2022] FedCFamC2F 95
Division:	Division 2 Family Law
Number of paragraphs:	401
Date of last submission/s:	17 March 2023
Date of hearing:	4, 5 & 6 October 2022; 24 & 25 January 2023; and 3 March 2023
Place:	Newcastle
Counsel for the Applicant:	Mr Mueller
Solicitor for the Applicant:	Grace Family Law Solicitors
Counsel for the Respondent:	Ms Graves
Solicitor for the Respondent:	Walsh Day Mihal Bassett
Counsel for the Independent Children's Lawyer:	Mr Cairns
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

TVC 838 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HAGARTY Applicant
AND:	MS VALENZA Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE CARTY
DATE OF ORDER:	21 DECEMBER 2023