Herman & Kozic - [2023] FedCFamC1F 833

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Herman & Kozic [2023] FedCFamC1F 833

File number: MLC 7783 of 2019

Judgment of: HARTNETT J

Date of judgment: 2 October 2023

Catchwords: FAMILY LAW – PARENTING – MAGELLAN – Parental responsibility – Where previous parenting orders were made by consent – Where parental responsibility is in dispute – Where each of the parents seek the child live with them – Where the child made disclosures her half-brother was inappropriate – Where the mother believes the child’s allegations – Where the father rejects the allegations – Where the child did not see the father for two years – Where the sexual allegations are not substantiated by SOCIT – Where parties engaged in family therapy – Where there is conflict between the parents – Where both parents lacked insight at times – Where conflict impacted upon child’s relationship with father – Where each of the parents seeks an order the child lives with them – Orders made for child to remain living with the mother and spend time with the father – Orders made for child to attend therapeutic counsellor

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Division 13A, ss 4AB, 60CA, 60CC, 61DA, 64B, 65, 69ZW

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Rigby & Olsen [2021] FedCFamC1A 46

R & C [1993] FamCA 62

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Halloran & Keats (2023) 66 Fam LR 640

Isles & Nelissen (2022) 65 Fam LR 288

M & M (1988) 166 CLR 69

Mulvany & Lane (2009) FLC 93-404

Rice & Asplund (1979) FLC 90-215

Division: Division 1 First Instance

Number of paragraphs: 227

Date of last submissions: 2 August 2023

Date of hearing: 25-26 May, 13-14 June 2023

Place: Melbourne

Counsel for the Applicant Ms Teicher

Solicitor for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Mr Testart

Solicitor for the Respondent: Morrison and Sawers

Counsel for the Independent Children's Lawyer: Ms Braun

Solicitor for the Independent Children's Lawyer: Bentleigh Family Lawyers
ORDERS

MLC 7783 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HERMAN

Applicant

AND:
MR KOZIC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

2 OCTOBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders, including Order 4 of the Orders dated 26 May 2023, be discharged.
2.The applicant mother (“the mother”) and the respondent father (“the father”) have equal shared parental responsibility for the child X born 2015 (“the child”).
3.The child live with the mother.
4.The child spend time and communicate with the father:
(a)during school terms, from the conclusion of school (or 3.30pm if a non-school day) on Friday to 4.00pm Sunday each alternate weekend commencing on 6 October 2023; and
(b)during the gazetted Terms 1, 2, and 3 Victorian school holidays for one half of the school holidays be agreement between the parents and failing agreement, the first half of the school holiday period;
(c)during the gazetted Victorian long summer school holidays, on a week about basis by agreement between the parents and failing agreement, the second week of such long summer school holidays and each alternate week thereafter with the child to be returned to the mother by 4.00pm at least 48 hours prior to the school term recommencing;
(d)for a 12 month period from the making of these orders, by telephone each Monday following a weekend when the child has been in the mother’s care, and Wednesday from 7.00pm to 7.30pm with the father to initiate the call to the mother’s telephone and otherwise following the expiration of the 12 month period, at all reasonable times with such calls to be initiated by the father and/or the child with the mother’s assistance if necessary; and
(e)at all other times as agreed between the parties in writing.

5.Notwithstanding any other orders to the contrary the child spend the following special occasion times with the parent:
(a)with the father on Father’s Day weekend from the conclusion of school Friday until 4.00pm on the Sunday;
(b)with the mother on Mother’s Day weekend from the conclusion of school on Friday until 4.00pm on the Sunday;
(c)at Christmas:
(i)4.00pm Christmas Eve to 4.00pm Christmas Day with the father in 2023 and each alternate year thereafter;
(ii)4.00pm Christmas Day to 4.00pm Boxing Day with the mother in 2023 and each alternate year thereafter;
(iii)4.00pm Christmas Eve to 4.00pm Christmas Day with the mother in 2024 and each alternate year thereafter; and
(iv)4.00pm Christmas Day to 4.00pm Boxing Day with the father in 2024 and each alternate year thereafter.

(d)at New Years, 4.00pm New Year’s Eve to 4.00pm New Year’s Day with the mother in odd years and the father in even years;
(e)with the father during Orthodox Easter from 4.00pm on the Thursday prior to Good Friday until 4.00pm Easter Monday; and
(f)with the mother during Catholic Easter from 4.00pm on the Thursday prior to Good Friday until 4.00pm Easter Monday.

6.Notwithstanding any order to the contrary, on each of the parties’ and the child’s birthday, the child spend time with the parent they are not otherwise in the care of, for a period of three hours as agreed and failing agreement, from the conclusion of school for a period of three hours on a school day or 10.00am to 1.00pm on a non-school day.
7.For the purposes of changeover pursuant to these orders, when changeover does not take place at the child’s school, changeover is to take place at Town B McDonalds.
8.The parties and their agents and servants shall be hereby restrained by injunction from taking photographs or videos of the child at changeover.
9.The father forthwith arrange, meet the costs of and attend an appointment with a therapeutic counsellor as nominated by the Independent Children’s Lawyer as agreed to by the mother and father, with such agreement to be provided by the parents within 7 days of these orders, for the purpose of reintroducing the child and C, and the father is to follow all such reasonable directions of the nominated therapeutic counsellor regarding reintroducing the child including, but not limited to, when to reintroduce the child to C. Such therapeutic counselling shall continue for not more than eight weeks from the date of these orders.
10.The parties to do all acts and things necessary to facilitate the child’s attendance on the therapeutic counsellor engaged pursuant to Order 9 herein.
11.The father provide a copy of these orders and reasons for judgment dated 2 October 2023 to the therapeutic counsellor engaged pursuant to Order 9 herein.
12.The father is not permitted to allow C to be in the presence of the child for a period of 8 weeks from the date of these orders.
13.The child remain enrolled at D School (primary school).
14.Each party is at liberty to obtain from the child’s school, copies of the following documents:
(a)the child's school report;
(b)school newsletter;
(c)order forms for the child's school photos; and
(d)notices of school functions such as parent teacher interviews, concerts, excursions, fetes and sports days.

15.Each party is at liberty to attend any of the child’s school and extra-curricular functions (such as parent-teacher nights, school sports days, drama evenings, music concerts and fetes) at which parents are usually in attendance.
16.Each party provide the other with at least 14 days’ notice in advance of any interstate holiday plans for the child, together with contact details whilst on holiday.
17.The parties be permitted to travel overseas with the chid at times she is their care respectively, provided unless otherwise agreed in writing:
(a)they each provide 42 days prior written notice of their intention to travel with the child with proposed travel itinerary, a copy of the child's return air ticket (including the airline flight numbers and dates) and details of their property accommodation along with their contact details whilst overseas;
(b)they each keep one another informed at all times of any changes to those travel details and their contact details (including telephone number and email address) whilst travelling with the child; and
(c)they each do all things necessary to register both the child's and their own travel arrangements with the Australian Department of Foreign Affairs and Trade (“DFAT”) at least 14 days prior to the departure date.

18.The parties do all such things and sign all such documents, including any necessary consent forms, as may be required to:
(a)ensure that the child has a valid Australian Passport;
(b)renew any passport held by the child at least 6 months prior to expiry if practicable; and
(c)the costs of renewing the passport will be shared equally by both parties.

19.The mother will retain the passport issued for the child.
20.If the child travels overseas with the father in accordance with these Orders:
(a)the mother will provide the child’s passport to the father for the purpose of travel at least 42 days prior to the departure date; and
(b)the father will return the child's passport to the mother upon the child’s return to the mother’s care following the overseas travel.

21.Each party will:
(a)inform the other forthwith of any illness or injury suffered by the child;
(b)provide the other party with particulars of any medical treatment and/or medication prescribed or administered to ensure that any prescribed medication is provided to the other party at changeover along with the name and contact details of the treating practitioner; and
(c)authorise any doctor who may treat the child from time to time to provide information to that other party.

22.Each parent be and is hereby authorised to engage and consult with any treating general practitioner, medical specialist or allied health practitioner upon whom the child attends and each parent is at liberty to provide a copy of the sealed orders to these professionals.
23.The parents be at liberty to provide a copy of the sealed orders to the school that the child attends.
24.Each party keep the other informed at all times of their contact telephone number, email address and residential address, and advise the other of any changes within seven days of any change.
25.Each of the parties, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party or their family; and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so.

26.The parents communicate through AppClose or a similar application save for in the event of sensitive or urgent matters then the parents be at liberty to communicate via text or telephone and such communication be child focused and respectful.
27.The Independent Children’s Lawyer be discharged within 8 weeks of these Orders.
28.Otherwise all extant applications be dismissed and the matter removed from the list.

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 Herman & Kozic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARNETT J
PRELIMINARY

This proceeding comes before the Court on Application by the applicant mother (“the mother”) filed on 26 May 2021 seeking a stay of final parenting orders made on 15 November 2019 (“the final orders”) in relation to the child X born 2015 (“the child”). The respondent to the matter is the child’s father (“the father”).
The final orders of 15 May 2019 were made by consent and provided relevantly, for: the mother to be permitted to relocate to Suburb E with the child (whilst the father remained living in City O); the parties to have equal shared parental responsibility for the child; the child to live with the mother and spend time with the father in an increasing regime such that as from when the child commenced primary school, on alternate weekends from 5.30pm on Friday until 5.00pm Sunday; for one week each school term holiday period; on a week about basis during the long school summer holidays; and during special occasions. Further ancillary orders were contained in the final orders.
The mother withheld the child from the father’s care in December 2020 following disclosures made by the child that the father’s son from a previous relationship C (“the half-brother”) exposed himself to the child whilst both the child and the half-brother were staying at the father’s residence. The child subsequently spent no time with the father for a period of two years and five months. The child then recommenced spending time with the father when orders were made by consent on 3 April 2023 for the child to spend four hours each Wednesday with him. The father was restrained from bringing the half-brother into contact with the child.
The proceeding was initially set down for trial on 22 November 2022 however the trial was adjourned on two occasions to allow the parties to engage in family therapy, as sought by them. The trial proceeded on 25 - 26 May and 13 – 14 June 2023 with an order made at the conclusion of trial for the filing of written submissions.
At the conclusion of trial, the main issues in dispute were:
·Whether the parties should have equal shared parental responsibility for the child (as sought by the Independent Children’s Lawyer (“ICL”) and the mother) or if one of the parents should have sole parental responsibility for the child (as sought by the father);
·Whether the child should live with the mother or father;
·Whether the child should spend time with the non-residential parent and in what circumstances; and
·What restraints (if any) the Court should make in relation to the child having contact with the half-brother.
MATERIAL RELIED UPON
The mother relied upon:
(1)Amended Initiating Application filed 24 April 2023;
(2)Written submissions filed 2 August 2023;
(3)her affidavits filed 26 April 2023, 31 March 2023, 14 September 2022;
(4)affidavit of Ms G, great maternal aunt of the child, filed 14 September 2022. Ms G was cross-examined during the trial, with the assistance of a Country V translator at trial; and
(5)affidavit of Ms F, great maternal aunt of the child, filed 14 September 2022. Ms F was cross-examined during the trial.
The father relied upon:
(1)Amended Response to Initiating Application filed 27 April 2023;
(2)Written submissions filed 5 July 2023;
(3)his affidavit filed 28 April 2023;
(4)affidavit of Ms H, paternal grandmother, filed 27 April 2023. Ms H was not cross‑examined at trial and her evidence was unchallenged;
(5)affidavit of Ms J, paternal aunt, filed 27 April 2023. Ms J was not cross-examined at trial and her evidence was unchallenged; and
(6)affidavit of Ms L, the father’s former wife and mother of the half-brother, filed 3 October 2022. Ms L was not cross-examined at trial and her evidence was unchallenged.
The ICL relied upon their written submissions filed 27 July 2023.
All parties relied upon the following:
(1)Magellan Family Report of Ms K, Family Consultant, dated 22 August 2022;
(2)Psychological Evaluation Report of Ms M, psychologist, dated 11 July 2022 annexed to her affidavit filed 18 November 2022; and
(3)Family Therapy Report of Ms N, Family Therapist, dated 21 May 2023 annexed to her affidavit filed 22 May 2023.
Both the mother and the ICL relied upon the Department of Fairness, Families and Housing (“DFFH”) Report dated 27 April 2022, the Child Impact Report dated 23 March 2022 and the Magellan Report dated 13 August 2021.
ORDERS SOUGHT
On the first day of trial, by way of oral application by the mother’s counsel, it was indicated to the Court and the other parties that the mother had re-considered her Application for orders sought, and altered her position from that of seeking sole parental responsibility of the child, with the child to spend time with the father for a few hours each alternate weekend in Melbourne and instead sought orders, relevantly that, the parents have equal shared parental responsibility for the child; the child live with the mother and spend time with the father each weekend in Melbourne from 9.30am to 7.15pm for a period of two months and thereafter each alternate weekend from the conclusion of school on Friday until 3.30pm on Sunday with changeover to take place at Town B Police Station, and for two periods of one week during the 2023 long summer school holidays and commencing in the school holidays of Term 1 2024, half of all school holidays. The mother sought further orders in relation to the child spending time with each of the parents on special occasions, being Father’s Day, Mother’s Day, Easter, Christmas and Orthodox Easter. The mother sought that there be an injunction restraining the half-brother from having any communication whatsoever with the child and a further order that the child be provided with her own bedroom and bed in the father’s home.
The mother further sought, during the trial, that there be a restraint in relation to the father consuming alcohol whilst the child is in his care.
The father sought orders as contained in his Amended Response to Initiating Application filed 27 April 2023. The orders sought are detailed in full in these reasons to provide a complete context of the precise nature of the exhaustive orders sought.
The father’s orders sought were framed in two alternatives: alternative one – if the child lives with the father (“alternative one”), and alternative two – if the child lives with the mother (“alternative two”).
The orders sought by the father in alternative one were that he have sole parental responsibility for the child; the child live with him, the father be permitted to enrol the child in T School; the parties do all acts and things and sign all documents necessary to enrol in S Contact Centre in City O; commencing two months from the date of orders, the child spend time with the mother at dates and times as determined by S Contact Centre for ten occasions; thereafter each alternate Saturday for six hours on two occasions, each alternate weekend from 10.00am on Saturday until 2.00pm on Sunday for two occasions and each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday for two occasions; upon completion by the mother of the regime as set out below in relation to the mother engaging in a counsellor or psychologist, the child shall spend time with the mother as follows: from 5.30pm Friday until 4.00pm Sunday each alternate weekend; during the gazetted school Terms 1, 2, and 3 holidays for one week of the school holidays, with such time to commence at the conclusion of school or 3.30pm on the first Friday of the school holidays and conclude at 4.00pm on the middle Sunday of the holidays: during the gazetted Victorian long summer school holidays at the conclusion of Term 4 on a week about basis, with the mother to have the first week, from the conclusion of school or 3.30pm on the day that school concludes, and changeover to occur on the same day each week thereafter; for Christmas: from 4.00pm Christmas Day until 4.00pm Boxing Day in 2023 and each alternate year thereafter; from 4.00pm Christmas Eve until 4.00pm Christmas Day 2024 and each alternate year thereafter; on the Mother’s Day weekend from the conclusion of school Friday until 4.00pm on the Sunday; by telephone each Monday and Wednesday from 7.00pm to 7.30pm with the mother to initiate the call to the father’s telephone; such other times as agreed between the parties in writing via text message; and for changeover to take place at Town B McDonalds. Notwithstanding the abovementioned orders sought, the father specifically sought orders in relation to the child remaining in his care during times the child is not with the mother during school holidays and special occasions, being: during the gazetted school Term 1, 2 and 3 holidays for one week of the school holidays, with such time to commence at 3.00pm on the middle Sunday of the holidays and conclude upon the commencement of school on the following Monday; during the gazetted Victorian school long summer holidays on a week about basis, with the father to have the second week, and changeover to occur on the same day each week thereafter; for Christmas: from 4.00pm on Christmas Eve to 4.00pm Christmas Day in 2023 and each alternate year thereafter: from 4.00pm Christmas Day to 4.00pm Boxing Day in 2024 and each alternate year thereafter; for the Orthodox Easter from 4.00pm on the Thursday prior to Good Friday until 4.00pm Easter Monday: on the Father’s Day weekend from the conclusion of school Friday until 4.00pm Sunday: such other times as agreed between the parties via text message.

The father sought further orders in alternative one, relevantly, that if the mother did not comply strictly with the orders, she shall spend no time with the child; the mother be restrained including her servants and/or agents from: communicating in any matter whatsoever with the child during any time the child is in the care of the father pursuant to the orders including telephonic communication, face-to-face contact, electronic and/or internet communication of any kind by any social media, chat, SMS, encrypted message programs or platforms of whatsoever nature or kind; over-holding the child for any purported reason, including any reason of the kind that the mother has offered in the period from December 2020 to April 2023 in this proceeding; complaining to any third party about any aspect of the father’s conduct towards or parenting of the child without first having notified the father in writing and affording him no less than 24 hours to respond to any such complaint; denigrating, abusing, criticising, rebuking, or belittling the father to, or in the presence or hearing of the child or suffering any other person to do so; discussing this proceeding, or any factual or legal issue, or showing the child any document related to this proceeding to or with the child. The father sought further orders the mother engage with a counsellor or psychologist as nominated or approved by the ICL and attend as directed and undergo counselling the scope of which was to learn from the counselling how her conduct has, and continues to, adversely affect the child, learn strategies calculated to change her conduct towards the child so that as far as possible the harm already caused to the child by her said conduct is ameliorated and if possible reversed; implement the knowledge gained in her interactions with the child so as to minimise the said adverse effects on the child; implement the strategies gained as far as practicable to reverse and/or remedy the said harm; the scope of the mother's counselling be to educate the mother as to the effect of her conduct on the child, and the child's relationship with the father and with her in the short, medium, and long-term; to refer specifically to aspects of the mother’s conduct towards the child that have caused the child unreasonably to reject the father, and to give the mother strategies enabling her to avoid such conduct in the future; to encourage and enable the mother to gain insight as to the nature and effect of her said conduct, for the better implementation of the mother’s counselling, the father be at liberty to provide the counsellor any document in the proceeding he deems will assist the counsellor in the course of the mother's counselling, including affidavits and exhibits, reports and any reasons for judgment; contact the counsellor for the purposes of ascertaining whether the mother is attending the mother’s counselling as ordered; in the event that the mother does not comply strictly with any of these orders that impose any obligation upon her, the father shall be at liberty to make application to the Court on short notice as he may be advised, and the principles in Rice & Asplund (1979) FLC 90-215 shall not be deemed to be available to the mother in bar to any such application; and the father be at liberty, at his sole discretion, with the child, to undergo such intensive or other immersive or other therapy or program as he may be advised, with a view to re-establishing his parental relationship with the child.
In the father’s alternate two, he sought orders, relevantly, that the child live with the mother; the child spend time with him as follows: subject to alternative recommendations made by Ms N: each alternate Saturday on two occasions from 10.00am until 4.00pm with such time to occur in the City O Region; each alternate weekend on two occasions, from 10.00am Saturday until 2.00pm Sunday with such time to occur in the City O Region; each alternate weekend for a further two occasions, from 10.00am Saturday until 4.00pm Sunday. Thereafter, from 5.30pm Friday until 4.00pm Sunday each alternate weekend; during the gazetted school Term 1, 2, and 3 holidays for one week of the school holidays, with such time to commence at the conclusion of school or 3.30pm on the first Friday of the school holidays and conclude at 4.00pm on the middle Sunday of the holidays; during the gazetted Victorian long summer school holidays at the conclusion of Term 4 on a week about basis, with the mother to have the first week, from the conclusion of school or 3.30pm on the day that school concludes, and changeover to occur on the same day each week thereafter; on the Father’s Day weekend from the conclusion of school Friday until 4.00pm on the Sunday; by telephone each Monday and Wednesday from 7.00pm to 7.30pm with the father to initiate the call to the mother’s telephone; and such other times as may be agreed by the parties. There were further orders sought for the child to spend time with the parties at Christmas and New Year; with the father during Orthodox Easter and the mother during Catholic Easter and the Mother’s Day weekend; further telephone time with the non-caring parent to call the child during their birthday; the mother to spend telephone time with the child each Saturday from 7.00pm to 7.30pm when the child was not in her care, and changeover take place at Town B McDonalds.
The father further sought ancillary orders, regardless of where the child lived, for him to arrange and attend an appointment with Ms N for the purposes of reintroducing the child and the half-brother; the father to follow all such reasonable directions of Ms N regarding the re‑introduction of the child and the half-brother; each party be at liberty to obtain documents from the child’s school; attend any of the child’s extra-curricular functions; each party provide the other with at least 14 days’ notice in advance of any interstate holiday; the parties be permitted to travel overseas with the child at times when she is in their care; the parties ensure the child has a valid passport and share equally the costs of renewing the passport; the father retain the child’s passport for safekeeping; the father provide the mother a certified copy of the child’s passport; the father provide the mother the child’s passport at least 42 days prior to the child travelling overseas with the mother; the mother to return the child’s passport to the father upon the child returning to the father’s care following the travel; each party to: inform the other forthwith of any illness or injury suffered by the child; provide the other party with particulars of any medical treatment and/or medication prescribed or administered to ensure that any prescribed medication is provided to the other party at changeover along with the name and contact details of the treating practitioner; authorise any doctor who may treat the child from time to time to provide information to the other party; each party be at liberty to provide a copy of the orders to the school that the child attends; that each party keep the other informed at all times of their contact telephone number, email address and residential address; that each parent arrange for a separate bed for the child at their home; that in the event either party has a family event or special occasion during the other parties’ weekend time with the child, the other party will endeavour to facilitate the child attending the event and the parent whose time has been interrupted will receive make up time; that each of the parties, their servants and agents be restrained by injunction from: abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so; and the father be at liberty to make an urgent application in the event that the mother withholds the child from his care.
The ICL sought orders, relevantly, that the parents have equal shared parental responsibility for the child; the child live with the father and spend time with the mother each alternate weekend from 5.00pm Friday until 4.00pm Sunday; for one half of each school term holidays; during the school long summer holidays on a week about basis; for special occasions such as Christmas, New Year’s Eve, Mother’s Day, Catholic Easter; and for the child to have telephone communication with the mother each Monday and Wednesday and at such other times as agreed between the parents in writing; the child to spend time with the father on Orthodox Easter and Father’s Day and on the child or either of the parent’s birthdays; changeover take place at Town B McDonalds; the parents, their servants and agents be restrained by injunction from taking photographs or videos of the child at changeover; the parent who does not have care of the child be permitted to speak to the child on the telephone; the parents communicate through AppClose or a similar application save for in the event of sensitive or urgent matters, when the parents are at liberty to communicate via text or telephone and such communication be child focused and respectful; the father attend upon Ms N or such other psychologist as agreed between the parties for the purpose of re-introducing the child to the half-brother and the father to follow all such reasonable directions regarding the re-introduction including but not limited to when to reintroduce the child to the half-brother; the father otherwise not be permitted to allow the half-brother to be in the presence of the child unsupervised until Ms N or other psychologist deems it appropriate.
The ICL sought further ancillary orders, relevantly, that each parent be at liberty to provide a copy of the sealed orders to the school the child attends; each parent keep the other informed at all times of their contact number, email and residential address and advise the other of any changes within seven days; in the event that either parent has a family event or special occasion during the other parent’s weekend time with the child, the other parent endeavour to facilitate the child attending the event and the parent whose time has been interrupted receive make up time; the parents keep the other advised of any health issues relating to the child and each parent contact the other as soon as practicable in the event the child suffers a serious injury whilst in that parent’s care, and the other parent be authorised to communicate with any medical professionals attending upon the child; the parents, their agents and servants be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or their family, or speaking about the proceedings or contents of any documents filed in this matter to, with or in the presence or hearing of the child and from permitting any other person to do so; each parent be authorised to engage and consult with any treating general practitioner, medical specialist or allied health practitioner upon whom the child attends and each parent is at liberty to provide a copy of the sealed orders to those professionals; each parent be authorised to attend any school or extra-curricular activities that parents are ordinarily able to attend and they otherwise be at liberty to communicate directly with the child’s school/extra-curricular activities; each parent be authorised to receive all school reports, photographs, notices and other correspondence from the child’s school/s at their own expense; and the ICL be discharged.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[1] The Court is not required to undertake a microscopic analysis in relation to the evidence which has been presented, and findings of fact will not be made in relation to every single disputed piece of evidence, of which there are many in this matter.[2] Relevant evidence has been considered and evaluated to arrive at a determination that is ultimately in the child’s best interests.
[1] Evidence Act 1995 (Cth) s 140.
[2] Rigby & Olsen [2021] FedCFamC1A 46.
RELEVANT FACTUAL BACKGROUND
The father was born in 1979 and was 43 years old at trial. The father is self-employed as a tradesman and works five days each week. He lives in City O.
The mother was born in 1980 and was 42 years old at trial. The mother is employed in the service industry and works six days each week. She lives in Suburb P.
The mother has a child from a previous marriage, Q born in 2006 (“the half-sister”) and was 17 years old at trial. The half-sister lives with her father and spends regular time with the mother at the mother’s residence in Suburb P.
The half-brother was born in 2006 and was 17 years old at trial. The half-brother lives with his mother and spends regular time with the father at his residence in City O.
At the time of trial, the child was eight years old and was in Grade Two at D School.
The parties commenced a relationship in 2010, married in 2014 and separated in February 2019, when the child was three years old.
The mother commenced proceedings on 12 July 2019 in the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) by way of an Initiating Application seeking orders in relation to the child. As outlined earlier in these reasons, the final orders were made by consent on 15 November 2019.
On 30 January 2020, final property orders were made by consent.
In early 2020, the mother’s aunt, Ms F, whilst caring for the child after kindergarten, and after the child had spent weekend time with the father, was told by the child that the half-brother “did wee on me and he showed me his pee pee and he wee like this”.[3] Following the child’s disclosures, Ms F was very distressed. She phoned her sister (also the mother’s aunt), Ms G. She conveyed the child’s disclosure to her sister. The next day Ms G informed the mother of this disclosure.
[3] Affidavit of Ms F filed 14 September 2022, paragraph 7.
The following day, the mother, Ms G and the child attended Suburb R Police Station. The mother, Ms G and the child were each interviewed by Police. The mother was present with the child at the commencement of the child’s interview however left the room once the child appeared to be settled. The mother deposed that at the Police Station, a Police Officer told the mother the child’s disclosures were ‘not enough for a SOCIT [Sexual Offences and Child-Abuse Investigation Team] investigation’.[4]
[4] Mother’s affidavit filed 14 September 2022, paragraph 33.
It is not disputed that between February and November 2020, the mother continued to facilitate the child’s time with the father.
In or around late 2020, after spending time with the father, the child made disclosures to the mother that the half-brother had exposed his “pee pee” to the child.[5]
[5] Mother’s affidavit filed 14 September 2022, paragraph 45.
On 21 November 2020, the father spent time with the child in accordance with the final orders.
On 22 November 2020, the child, after returning from the father’s care the previous day, made disclosures to Ms G that “[C], he weed on me”; “in the lounge on my face”; and “in the couch in the backroom. Nanna it is a different wee it is white like cream”.[6] Ms G reported these disclosures to the mother. The mother reported these disclosures to the DFFH.
[6] Affidavit of Ms G filed 14 September 2022, paragraph 20.
In late 2020, the mother withheld the child from the father. The parties subsequent inability to reach agreement as to the circumstances in which the child would spend time with the father and the DFFH investigation resulted in the child not spending time with the father until 12 April 2023.
In late 2020, the father was informed by a DFFH worker that a report had been made to the DFFH that the half-brother had exposed himself to the child in a inappropriate manner.
On 23 April 2021, the father filed a Contravention Application alleging the mother failed to facilitate the child’s time with the father as provided for in the final orders.
In mid-2021, SOCIT conducted a tape recorded (Video and Audio Recorded Evidence (“VARE”)) interview with the child. Following that interview, the Police reported the results to the mother and indicated that no offences in respect of the alleged incidents in late 2020 were established from the information obtained from the child. That information being that the half-brother had shown himself to the child. There ‘was no evidence of sexually driven or harmful intent behind what occurred and therefore, [the child] was not assessed to be at risk in the care of her father/half-brother’.[7]
[7] Magellan Report 13 August 2021, paragraph 3.
On 26 May 2021, the mother filed an Initiating Application for Final Orders.
On 27 May 2021, the father discontinued his Contravention Application and interim orders were made by consent for an ICL to be appointed. The matter was listed for further hearing as a potential Magellan matter.
On 21 June 2021, the proceeding was designated Magellan and an order was made requesting the DFFH to provide a Magellan Report. By that time, the mother had reported further disclosures made by the child, in or around mid-2021.
In mid-2021, the mother and the child visited the home of one of the mother’s friends, whom has four children, two of whom are of similar age to the child. The mother claimed the child showed the two children of similar age explicit images on an iPad. When the mother questioned the child about the images, the child initially said a child from school showed her such images. However, when the mother questioned this, the child disclosed to the mother that the half‑brother had shown her the images on his iPad.
A short time later, the child was again interviewed by Child Protection Practitioners (“CPPs”) with both parents being interviewed in mid-2021.
At that time, Child Protection made an unannounced home visit to the mother’s home. Two CPPs were present. They interviewed the child. The child reported (‘brother’ is a reference to the half-brother) to the CPPs the following:[8]
[8] Magellan Report 13 August 2021, paragraph 4.
•Her brother showed the child his ‘privates’ and ‘cream’ and ‘wee’ came out of it.
•The ‘cream’ almost hit her face. The child stated this happened in her brother’s room which is the toy room.
•Her brother shows her his bum. The child did not provide more detail about this.
•Her brother tried to lick her all over her body. When asked to indicate where she was referring to, the child pointed to all parts of her body.
•Her brother tried to touch the child’s privates with his hands. The child pointed to her genitals when asked to describe what her ‘privates’ were. That everyone was there when he tried to do that, that they were in the same room, and they said to her ‘happy birthday dumb cunt’.
•The father, [grandmother] and [grandmother’s] husband were all present during the incident and that they ‘don't care’.
•That people say to her ‘you are a dumb cunt’. When asked who says this, the child said ‘everyone’ (at her father’s home).
•Initially, she stated she slept with her father in the same room and same bed, and then stated she would have to sleep on the brick floor in the father’s room in the father’s home. There was nothing under her or on her during these times. The child demonstrated this by showing the CPPs how she lays on the floor.
•That [the Paternal Grandmother] is mean, and she tried to make the child pull her pants down, and wanted the child to show everyone her private and the child say no, and the paternal grandmother she still tried to do it.
•Her [grandmother’s] husband and her father have tried to kill her. The child got a knife (black handled steak knife) and stated that this was the type of knife she was referring too but did not provide any further specifics of the alleged incident.
•She feels safe at school, safe at her mother’s home; however, she does not feel safe at her father’s home and wants someone else present when she sees her dad.

During the interview of the child in mid-2021, the CPPs observed that several times during the conversation, the child repeated to herself what the half-brother had said to her, including: “you got fucked in the toilet and then I’m going to tell you off because you done it”'.[9] There was no other context provided to the CPPs.
[9] Magellan Report dated 13 August 2021, paragraph 4.
In mid-2021, the Magellan Report dated mid-2021 produced by DFFH was released to the parties for inspection. The Report concluded Child Protection assessed, due to the child’s quite confident disclosures, that there was a likelihood of harm having occurred and the matter required further investigation. Child Protection recommended that the status quo of the child having voice or video calls with the father remain in place until the full investigation had been completed. If direct contact was to occur between the child and the father, Child Protection recommended such time occur by the supervision of an independent party until the investigation could be completed and full recommendations be made. Additionally, Child Protection recommended further assessment of the paternal family’s circumstances needed to occur to ensure the child’s safety.
On 18 August 2021, interim orders were made by consent suspending the final parenting orders and for the child to have telephone communication with the father. A further order was made by consent restraining the father from discussing the child’s allegations regarding the half‑brother with or in the presence or hearing of the half-brother before the DFFH had interviewed the half-brother.
In late 2021, the father relocated to a house in City O formerly owned by his grandfather. The father set up separate bedrooms for himself, the half-brother and the child.
On 15 December 2021, orders were made for a Child Impact Report to be prepared.
In early 2022, Victoria Police were requested to provide a Response pursuant to a s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) Order made that day.
On 26 April 2022, an Order was made releasing the Child Impact Report dated 23 March 2022 to the parties.
On 28 April 2022, orders were made for the child to communicate with the father by telephone each Monday evening; the parties to engage with and obtain counselling for the child; the parents to enrol in a parenting program; the father to undertake a Carbohydrate Deficient Transferrin (“CDT”) test within 48 hours of a written request by the ICL; the parties to attend upon a psychologist nominated by the ICL for psychological assessment; and the father to have liberty to amend his Application in a Proceeding to include an application for face-to-face contact with the child.
On 8 June 2022, orders were made, relevantly, that the parents facilitate the father and child’s attendance upon Ms N for the purposes of family therapy; the mother, if deemed appropriate by Ms N, also attend upon Ms N and that upon the conclusion of family therapy or as otherwise requested by the ICL, the parents obtain a report from Ms N; and the father to pay the costs of family therapy in the first instance. Orders were also made that day for a Magellan Family Report to be completed by a Family Consultant; a request to DFFH to provide a response pursuant to s 69ZW of the Act; a further request Victoria Police to provide a response pursuant to s 69ZW of the Act; the matter be listed for a five day trial; and directions in relation to the filing of trial material.
On 23 August 2022, orders were, relevantly, that the Magellan Family Report of Family Consultant Ms K dated 22 August 2022 (“the Family Report”) be released to the parties. Ms N was subsequently (by orders) provided with a copy.
In November 2022, Ms N emailed the parties with a treatment plan in relation to the family therapy. It was the mother’s position she was not provided with a copy of the plan. It is Ms N’s position she emailed the mother with a copy of the plan. I prefer Ms N’s evidence as to this matter.
On 21 November 2022, orders were made, relevantly, that the matter be adjourned for a mention on 5 April 2023 and for the parties and the child to continue to attend upon Ms N and follow Ms N’s directions.
In December 2022, the father attended an individual therapy session with Ms N.
In February 2023, the mother attended an individual therapy session with Ms N. The child also attended an intake session that day.
In March 2023, the parties attended a joint therapy session with Ms N.
On 3 April 2023, orders were made by the Court, relevantly, that the child spend time with the father for a period of four hours each Wednesday afternoon in Melbourne with changeover facilitated by Ms N. This was the first occasion of time spent between the child and the father since the mother suspended time in 2020.
On 13 April 2023, the ICL requested the father undertake a CDT test.
On 19 and 26 April, and 3, 10 and 17 May 2023, the child spent time with the father in accordance with the orders made on 3 April 2023.
On 8 May 2023, the father’s CDT result was released and indicated probable recent or ongoing excessive use of alcohol. It was the father’s position the test result was in the context of him suffering a viral illness and was not accurate.
In mid-2023, Child Protection wrote to the ICL advising that Child Protection was no longer involved in the matter with involvement having ceased in early 2023.
At the conclusion of day two of the trial, being 26 May 2023, interim orders were made, relevantly, for the child to spend time with the father on 28 May 2023 and 4 June 2023 from 10.00am until 5.00pm, with changeover to take place outside Suburb E Police Station and until further order and without admission as to the necessity of same, the father not bring the child into contact or communication with the half-brother.
On 13 June 2023, the part-heard trial resumed. At the conclusion of the final day of the trial, being 14 June 2023, orders were made, relevantly, that the child spend time with the father from 10.00am to 5.00pm on 18 June 2023; from the conclusion of school 23 June 2023 to 1.00pm on 24 June 2023; from 3.30pm on 30 June 2023 to 5.00pm on 2 July 2023; from 12.00pm on 8 July 2023 to 12.00pm on 9 July 2023; commencing 21 July 2023 from conclusion of school (or 3.30pm on a non- school day) to 1.00pm on 23 July 2023; and each alternate weekend thereafter in the same pattern, and during any subsequent school term holidays for half the school holidays by agreement and failing agreement, the first half; and on the father’s birthday from conclusion of school on the Friday prior until 5.00pm on the Saturday. Further orders were made for changeover to take place at Suburb E Police Station when not taking place at the child’s school with neither party to approach the vehicle of the other party (noting the father’s position that there was no need for such an order); for the mother and her agents and servants to be restrained by injunction from taking photographs or videos of the child at changeover; and for the mother to be permitted to telephone the child, when the child was in the father’s care, at 1.00pm each Saturday.
EVIDENCE
The mother
When giving evidence under cross-examination, the mother, at times, became highly emotional and reactive. I nevertheless found her to be genuinely concerned as to what had happened, as she understood it, to her daughter. I found her to be generally a reliable witness.
It was the mother’s evidence that, at approximately three and a half years old, the child had been abused by the half-brother whilst both children were in the care of the father. Upon repeated suggestion by counsel for the father, the mother agreed that she considered the half‑brother to be an abuser and admitted that she had referred to him in such a manner in a text message sent by her on 12 April 2021 to a mutual friend of the father and the mother. At trial, the mother was firm in her view, such that no fact which supported the contrary view, or introduced an element of doubt as to the accuracy of her view, would change her perception. This was because, in the mother’s words “I believe my daughter”[10]. The mother did, however, distinguish the half-brother’s alleged behaviours from other behaviours as alleged by the child in respect of the father’s extended family members. She said as to most of those other allegations, that she did not believe them. The mother’s further evidence was that she believed the half-brother to be a danger to the child, and that it was her view that the child should not have any further contact with the half-brother. This was an anathema to the father, who was firmly of the belief that his son had not abused the child in any way.
[10] Transcript 25 May 2023, p.20 lines 14; 25.
Disclosures of abuse were first made by the child to the mother’s aunt in early 2020. Notwithstanding the disclosures, and because of SOCIT’s initial assessment, the mother continued to facilitate the child’s time with the father, including time spent in City O, until late 2020. Between early 2020 and late 2020, the mother’s evidence was that she observed concerning behaviours from the child being as follows:
(1)if a male person touched the child she would scream;
(2)the child’s sleep was disrupted;
(3)the child appeared to be highly strung;
(4)the child’s appetite was reduced;
(5)the child was very clingy to the mother and did not want to let the mother go; and
(6)the child appeared to be very quiet the night before she was due to spend time with the father in City O.
The mother’s further evidence was that the child made further disclosures between early 2020 and late 2020, such as “[C] done wee wee again”, “I saw [C’s] wee wee again, he piss again”, and “he done piss again”.[11]
[11] Mother’s affidavit filed 14 September 2022, paragraph 39.
In or about late 2020, the child told the mother she “saw [C’s] pee pee”, “cream, cream comes out of the hole mummy”,[12] and “mummy he shows me his pee pee with cream”.[13]
[12] Mother’s affidavit filed 14 September 2022, paragraph 46.
[13] Mother’s affidavit filed 14 September 2023 paragraph 49.
Notwithstanding the mother did not facilitate any time spent between the child and the father commencing in late 2020, she attempted to communicate with the father about the child for the purpose of keep him informed of the child’s progress, and further communicated with him (via the agency of the DHHS) to reach an agreement about his seeing the child. Her evidence was that the father failed to respond and/or respond appropriately to such text communications, and her attempts to re-engage him in the child’s life. For example, the mother sent the father a photograph of the child on the child’s first day of school in early 2021. The father acknowledged in his evidence receipt of this photograph and conceded that he did not respond to this communication. He claimed that there was a history of the mother sending him abusive text messages and therefore he chose not to engage in that manner with her. Additionally, around the time of the allegations first being investigated, the mother indicated to the father that the child could continue to spend time with the father each fortnight, but conditional upon the half-brother not being present. That was not acceptable to the father. It was the father’s evidence that at the time of the mother’s offer, he made reasonable proposals to the mother to spend time with the child. I observe his proposals however, placed the child in the presence of the half-brother, in circumstances where the father was to be present and acting in a supervisory capacity. This was not, given the then very recent allegations, and the DFFH ongoing investigation, acceptable to the mother.
By late June 2021, the father had indicated to the mother, in writing via his solicitors, that he would agree to an injunction preventing him from bringing the child into contact with the half‑brother. The DFFH investigations remained ongoing at that time. The mother’s response was to demand that any time spent between the father and child occur in Melbourne and be supervised with the involvement of a contract centre. The mother considered the father to be “in complete denial. He wouldn’t admit what happened”.[14] The father declined such a proposal. The father was not interested in paying the fees of a contact centre and continued to emphatically deny that there could be any cause for concern as alleged.
[14] Transcript 25 May 2023, p.27 line 2.
The father
The father was measured in his responses and made appropriate concessions. He too was a generally reliable witness.
The father conceded the child was primarily attached to the mother and the mother was the child’s primary carer.
It was the father’s evidence that he did not observe the child to display any behavioural issues following the disclosures made by the child to her mother and her mother’s aunt about the half‑brother. However, he believed the mother to be truthful in her observations as to the child’s demeanour following the disclosures and accepted the mother had been concerned. The father denied the assertions that the child had ever disclosed to him any of the sexual abuse allegations as made by her, in the context of the mother’s evidence that the child had repeatedly told her that “her [father] doesn’t believe her”[15].
[15] Transcript 25 May 2023, p.18 line 14.
Whilst the father did not believe the allegations made against the half-brother, he had taken them seriously. The half-brother denied the allegations, having told the father the alleged conduct “never happened”.[16] He was devastated by them; and had experienced a decline in his mental health since learning of the allegations. The half-brother had been engaged in counselling with a focus on the allegations and their consequences for him and the broader family.
[16] Transcript 25 May 2023, p.77 line 47 – p.78 lines 1-3.
At trial, the father gave evidence the half-brother was living with him each alternate weekend and half of the school holidays as his son had historically done following an amicable separation between his parents. He was unclear of what the half-brother’s living arrangements might be when he turns eighteen next year.
The father appeared to lack insight at times. When asked by the mother’s counsel during cross examination if he thought the child would experience distress if she were to move into his care, notwithstanding the child would be required to change school; be removed from her primary career and attachment figure, great aunts and cousins; and in circumstances where the child had not seen the father for a period of over two years, the father’s response was that he did not believe the child would be distressed. More particularly, the father responded “the way she is with me at the moment, I don’t think so”.[17] When questioned further by the mother’s counsel during cross-examination, the father conceded the child may be considerably destabilised if removed from her home with the mother.
[17] Transcript 25 May 2023, p.89 lines 22-23.
Ms J, the paternal aunt
Ms J is the paternal aunt of the child. Her affidavit evidence was not challenged by the mother or the ICL.
It was Ms J’s evidence her daughter and the child have a close cousin relationship and previously spent many hours playing together. Ms J opined she observed the child to be happy and energetic when in the father’s care and observed the child and half-brother to have a good relationship. Ms J and her daughter spent time with the child and the father in April 2023, and in Ms J’s opinion, the child enjoyed the time with her cousin with the two girls smiling and speaking excitedly to one another.
It was Ms J’s further evidence that there were periods where her daughter spent time with the half-brother at the father’s home, without the presence of the father, and that following such times Ms J’s daughter appeared to be happy and to have enjoyed spending time with the half‑brother.
I accept Ms J’s unchallenged evidence.
Ms L, the father’s former wife and mother of the half-brother
Ms L is the mother of the half-brother and the father’s former wife. Her affidavit evidence was not challenged by the mother or the ICL.
It was Ms L’s evidence that her and the father’s communications in relation to parenting matters concerning their son, the half-brother, are polite and co-operative, with the co-parenting relationship between them being one of respect.
Ms L deposed that she had never observed the half-brother to behave in an inappropriate manner around other children. It was Ms L’s evidence the half-brother became aware of the child’s disclosures following the DFFH interviewing the half-brother in mid-2022. Following the interview, the half-brother told Ms L he wanted to “throw up”, he didn’t understand, and if he did (what he was alleged to have done) he would “kill himself” and further he would “kill himself if he hurt [the child]”.[18]
[18] Affidavit of Ms L filed 3 November 2022, paragraph 12.
Ms L further deposed that after her son became aware of the child’s disclosures, the half-brother refused to attend school and was diagnosed with anxiety and depression. He has since changed schools, to a school “aimed at providing children, who experience poor mental health or other difficulties, with significant support”.[19]
[19] Affidavit of Ms L filed 3 November 2022, paragraph 4.
I accept the evidence of Ms L.
Ms H, the paternal grandmother
Ms H is the paternal grandmother of the child. Her affidavit was not challenged by the mother or the ICL.
It was Ms H’s evidence she and the extended paternal family have a close relationship with the child. Ms H observed the child to play with both her female and male cousins, with the child having an especially close relationship with Ms J’s daughter.
Ms H gave evidence that she had observed the mother to be highly critical of the half-brother during the parties’ relationship.
I accept the evidence of Ms H.
Ms K, the Family Consultant
Ms K was cross-examined by each of the parties and the ICL. I accept her evidence.
Ms K noted that there were limitations accompanying the assessment process which included that the child’s half-siblings were not a part of the assessment, and that there were no observations between the child and each of the child’s parents. Ms K made a clinical decision for observations not be to be completed with the child and each of the parents, in consideration of the pending therapeutic pathway.
The mother
Ms K observed the mother to present as calm and child focused although noted at times she became teary and defensive. Ms K considered this type of communication as consistent with the sensitivity of the allegations.
The mother advised Ms K that it was her view that the father prioritised the half-brother over the child. She believed it would have been reasonable for the father to “err on the side of caution” and protect the child from harm.[20] Ms K reported that the mother emphatically acknowledged it was difficult to accept that something inappropriate had happened to the child and did not want to believe that it was true.
[20] Magellan Family Report of Ms K dated 22 August 2022, paragraph 33.
It was Ms K’s view that there were elements to the mother’s interview that suggested she felt resentment towards the half-brother, which appeared to be linked to the mother’s experience of the father prioritising the half-brother over her during the parties’ relationship.
Ms K opined the mother had a deeply negative view of the father and believed the father generally did not act in a way that protected the child. The mother gave as an example of the father not acting in a protective manner, that he did not have his pool fenced although I note this was at a time when he was not required, legally, to do so. The mother became so concerned as to the child’s welfare that she contacted the father’s local council to complain.
Ms K further opined that there was collateral information suggesting that the mother had experienced emotionally unpredictable responses to stress, which had impacted her interpersonal relationships.
The father

Ms K observed the father to hold the view that the mother actively sought to influence the child’s views of him, and described the mother as “controlling, untruthful, jealous” and with “narcissistic behaviour”[21] The father’s primary concern in relation to the child was the emotional harm the mother was causing the child by coaching the child to make abuse disclosures about the half-brother, as he perceived it at that time. I observe that such interviewed were conducted in July 2022. At trial, the father did not suggest the mother was coaching the child and accepted that the child may have volunteered such disclosures which in his view had no factual basis.
[21] Magellan Family Report of Ms K dated 22 August 2022, paragraph 42.
It was the view of Ms K that even if the half-brother had engaged in the alleged abusive behaviour, with the input of professional and sensitive support from family members, it was unlikely the child and the half-brother’s sibling relationship would have needed to be severed.
Ms K opined it was unlikely that the father posed a direct threat to the child’s safety, and the re-establishment of their relationship should proceed. However, it was also the opinion of Ms K that the father’s inflexible thinking, emotional vulnerabilities, mistrust of the mother, and pattern of shifting blame to the mother reduced the father’s potential for self-reflection and suggested his parental capacity was likely to be limited.
The child
When interviewed by Ms K, the child did not engage in conversation and largely ignored the environment around her. Ms K observed the child to avoid eye contact, and provided monosyllabic responses to questions, other than those related to play activities.
In the context of the child's age and experiences, Ms K opined the child’s presentation at the Family Report interview could be the result of reduced emotional resilience, potentially linked to the number of times she had been interviewed, including by CPPs. It was the view of Ms K that reducing the frequency of the child being asked to retell her account would likely help minimise the risk of exacerbating her trauma, developmental regression, or negative experiences.
Ms K considered the child was likely to be emotionally impacted by her experiences of parental conflict, and contact with professionals, together with her awareness of this proceeding.
In her Family Report, Ms K recommended the child live with the mother; the child, the parents and significant family members engage with family therapy with Ms N; the mother continue to engage with counselling; the father attend a Men’s Behaviour Change Program; and dependent on the recommendations of family therapy, consideration be given to a progressive increase in the father’s care of the child, initially excluding nights. If viewed as supportive of the child’s developmental and emotional needs, there then be a gradual re-establishment of the child’s relationship with the half-brother with a measure of supervision to be established, and a gradual re-establishment of the child’s relationship with the paternal family. Ms K further recommended an adult with demonstrated protective capacity be present when the child and half-brother were together, and the half-brother not be present during the child completing her personal care tasks.
A significant period elapsed between the release of the Family Report and the commencement of the trial. In that intervening period of nine months, the parties and the child attended upon Ms N for family therapy in accordance with Ms K’s recommendations.
At trial, Ms K gave evidence that her recommendations as contained in the Family Report were based on her assessment of the parties at that time, being July 2022. She had no further knowledge of the parties, including no knowledge of the progress the parties had made at family therapy with Ms N.
Ms N, Family Therapist
Ms N is a psychologist and Family Therapist with whom the parties and child engaged in reportable family therapy in the period between December 2022 and March 2023. Subsequently, Ms N also supervised changeover of the child’s care as between the parents on six occasions between March 2023 and April 2023.
During the mother’s initial therapeutic session in February 2023, held in the absence of the child, Ms N observed the mother to be reactive and forthrightly against contact between the child and the father. She further observed the mother to be in an agitated state and not attuned to the child. The mother was observed by Ms N to not encourage the child to exit from her car prior to a meeting with the child and father as part of a planned therapy session in March 2023, with the mother telling Ms N “It’s your job! I’m recording you! You’re putting my child at risk…”.[22] The mother claimed that the father had betrayed the child’s trust, that the father was narcissistic, and she described him to Ms N as a gaslighter. At trial, Ms N described the mother’s presentation during the therapeutic session as extremely negative in terms of reactivity and capacity to reflect and gain insight from that reflection.
[22] Family Therapy Report of Ms N dated 21 May 2023, Annexure BF-1.
Notwithstanding the mother’s abovementioned presentation at family therapy, it was Ms N’s evidence the mother’s demeanour changed when Ms N supervised changeover of the child’s care between her parents. In Ms N’s view, the mother presented “as calm and focused on supporting the child as much as she could in spending time with the father”.[23] The mother was able to speak to Ms N appropriately and was generally far less reactive.
[23] Transcript 14 June 2023, p.5 lines 2-4.
Ms N’s opinion of the mother became more positive following the progression of time between the child and the father. In summary, of the six occasions of time spent between the child and father where Ms N supervised changeover, Ms N described the mother as presenting as calm and supportive of the child, and that the mother happily farewelled, then warmly greeted, the child. The father was observed to have also presented as calm and focussed on the child, and appreciative of the child’s needs.
It was Ms N’s evidence that the father was very open to gaining insight, skills and knowledge about parenting and communication with the mother. Ms N did not have any concerns about the father’s ability to utilise family therapy as a resource. By contrast, she considered the mother to not have the capacity or suitability to use therapy as a resource. Rather, it was Ms N’s view that “the Court orders [were] going to be the therapy” for this family, particularly the mother.[24]
[24] Transcript 14 June 2023, p.6 line 11.
Ms N opined the child presented as a lively, happy child who engaged easily and did not present as fearful of the father. The only statement made by the child to Ms N that was negative about her father, was that he did not believe her. Ms N observed the child to present as delighted to spend time with the father; responded well to the reunification; was curious about the father; and on most occasions, warmly embraced the father at the end of the time spent between the father and child.
Ms N observed that the child presented as strongly attached to the father and appeared to be consistently happy and settled in his care. The child was also attached to the mother and in Ms N’s opinion, it was likely that the child was anxious about choosing between her parents.
In cross-examination by counsel for the father, Ms N was asked whether the child would be better off in moving to reside in her father’s care. This question was asked in the context of the child being acutely aware of her mother’s attitude to her father and her half-brother, which was that her father had betrayed her trust in him, and that her half-brother was a danger to her. Ms N considered that the psychological effect on the child of being in such a position in the mother’s household, which she extended to include the two maternal aunts, was “enormously negative” and that the child demonstrated this by highly agitated behaviour and emotional cut-off and withdrawal.[25] This evidence, whilst it sat comfortably with the child’s attempted meeting with the father during family therapy, of which there was a single session, did not sit comfortably at all with Ms N’s description of the child and her responses during her subsequent supervised visits with the father, which were notably supported by the mother.
[25] Transcript 14 June 2023, p.11 line 45.
Ms N gave further evidence as to the child’s, in her view, demonstrated “emotional cut-off and withdrawal” saying:[26]
I could only extrapolate that this would be her way of psychologically surviving, not only intended spending time – visits with the father, but in the household’s emotional atmosphere and attitudes about the father. I would see that as having a debilitating psychological-emotional effect on her, given her age, and the need for her to have a sense of safety and security in the relationships that are so significant for her, and with that level of acrimony, hatred, mistrust, betrayal – all those really strong emotional effects of the – in the mother’s household, and I suspect it is in the household, not just with the mother – this is going to have – have the impact on [X] of developmental delays, academic, social, psychosocial delays, relationship with significant adults, and what’s going to be – and the visits have highlighted to me the importance of children, of course, having a strong and supportive relationship with both parents, but it’s also highlighted in watching [X] go to her mother after such a joyful presentation each visit – each of the six visits with the father, that this little girl would have to shut down and suddenly find another part of herself in order to survive the emotional impact of being with the mother – in her mother’s care, and I had great concerns each time she left a visit with the father that this would be difficult for her to hold onto and to use as a psychological resource for her. My concern was that it would intensify the conflict for this little girl.
[26] Transcript 14 June 2023, p.12 lines 1-19.
Ms N then went on to opine that such dynamic as she described above contributed to personality disorders developing in a child which may occur for the child in this proceeding. She recommended a change in residence whilst acknowledging such a change may bring “an initial period of grief and anxiety about the emotional reliability for [the child] of her mother”.[27] That grief and anxiety would then need solid family therapy for the child and the mother to “repair and restore”.[28]
[27] Transcript 14 June 2023, p.17 lines 7-8.
[28] Transcript 14 June 2023, p.17 line 10.
I note Ms N’s opinion as expressed above was conditional on there being no prospect of change in the mother’s attitude towards the father, and there being very strong therapeutic support for the mother and child to adjust to this significantly changed living arrangement for the child. The prospect of the second condition being satisfied was remote if I accept the evidence of Ms N as set out in [111] above, which I do.
Ms M, psychologist
Ms M was the psychologist appointed pursuant to the Orders dated 28 April 2022 to conduct a psychological assessment of each of the parties. Ms M assessed each of the parties on 23 June 2022 and authored a Psychological Evaluation Report dated 11 July 2022, which was annexed to an affidavit filed on 18 November 2022. She was not cross-examined at trial, and I accept her unchallenged evidence.
Psychological assessment of the mother
The mother presented as co-operative throughout the psychological assessment, appearing forthcoming with information for the most part and at times, demonstrated some annoyance that she was required to undertake the assessment.
Ms M commented that when discussing discrepancies between collateral information and the mother’s views, the mother tended to deflect, blame, deny and obfuscate. The mother had a self-perception that she did not have anger issues and was unable to assert herself. That self‑held view was inconsistent with collateral information available to Ms M, which, in Ms M’s view, indicated the mother had a pattern of behaviour which demonstrated poor emotional regulation, anger management issues, and interpersonal issues.
Ms M opined the mother met the criteria for a generalised anxiety disorder. She had been prescribed medication and, at the time of the psychological assessment, was engaged in counselling. Ms M further opined the mother appeared to have some traits consistent with obsessive compulsive personality disorder.
In terms of recommendations, Ms M recommended the mother continue to engage with counselling and engage in a parenting skills program.
Psychological assessment of the father
The father presented as a calm and affable person to Ms M. He was co-operative and appeared forthcoming with information.
The father reported to Ms M that he consumed alcohol on a social basis which was not regular, however reported he previously consumed alcohol more frequently during the parties’ relationship consuming “a couple of drinks per day”.[29]
[29] Psychological Evaluation Report of Ms M dated 11 July 2022, paragraph 34.
Ms M commented that the father was unlikely to recognise or acknowledge his own faults and responsibility for parenting issues and lacked the capacity for self-reflection regarding his own behaviour. The father, in Ms M view, also held inflexible views in relation to the allegations the half-brother abused the child, and she noted that the father was determined to protect the half-brother at the risk of the father’s relationship with the child.
Ms M recommended the father continue to engage in a Men’s Behaviour Change Program, with a copy of the psychological assessment to be provided to the program facilitator, and that he participate in CDT testing.
A further recommendation of Ms M was that conditions such as limiting any face-to-face contact between the parties, by handover occurring through a third party, may assist in reducing conflict between the parents and the child’s exposure to same. Ms M also recommended ensuring the child’s protection around the half-brother (if deemed necessary).
LEGAL PRINCIPLES
Section 61DA of the Act provides a mandatory presumption when making parenting orders, being a presumption that is it in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Where there are reasonable grounds to believe that a parent has abused a child the subject of the proceeding or another child of that parent’s singular household at the time or engaged in ‘family violence’, as defined in s 4AB of the Act, the presumption is rebutted. Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, the Court must consider the matters set out in Sections 60CC(2) and 60CC(2A) of the Act which are as follows:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(2)(a) of the Act thus requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[30]
[30] M & M (1988) 166 CLR 69 at [25].
In Isles & Nelissen (2022) 65 Fam LR 288 the Full Court agreed with and adopted the commentary of Austin J. In Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138]-[142] where His Honour rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof. Austin J stated, relevantly, that:
…
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malbec.
Should the Court establish the existence of an unacceptable risk, the Court must proceed to determine whether that risk “is able to be sufficiently managed or ameliorated”.[31]
[31] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ at [76]‑[77] that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)

The father alleged the mother had committed family violence against an elder daughter of the mother, a daughter of a prior relationship. He claimed this alleged matter supported his position the child is at risk in the mother’s care.
At trial the mother conceded she had been verbally abusive to her elder daughter which appeared to be in a situational context. It was the mother’s evidence that her relationship with that daughter had been strained at times but that it was a good relationship now.
I decline to make any finding about the mother and her elder daughter’s relationship. I do not consider this limited evidence to have any bearing upon the matters I must decide in this proceeding, nor to be predictive in any way. I note that none of the parties referred to this relationship in closing written submissions.
Parties’ allegations of family violence from the other
Each of the parties made various allegations of family violence against the other, some of which took place prior to the child’s birth and during the parties’ relationship.
As at the making of the final parenting orders by consent on 15 November 2019, the Court must have been satisfied, having regard to the legislative requirements which include a consideration of family violence where it exists, that the orders were in the child’s best interests. I am not satisfied it is necessary in the circumstances of the current proceeding to make findings about the conduct of the parties prior to the final orders.
The father made allegations the mother was abusive towards him via text messages. The father did not provide exact timeframes for the alleged text messages in his trial affidavit and copies of the messages were not annexed to his affidavit. I am unable to make a finding if the mother sent such text messages as alleged.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
It was the mother’s evidence that the child had said to her that she did not want to go to City O to see the father, and that the father does not believe her. The mother submitted weight should be given to the child’s wishes given the child’s age and the seriousness of the child’s view that her father does not believe her.
It was the father’s evidence that the Court should be careful when giving weight to the child’s views given her age and development.
It was the ICL’s evidence that the child had told her words to the effect “I hate [the father], don’t want to go there anymore. I told [Ms N] that I will run away or kill myself”.[47] Following this disclosure, the ICL spoke with Ms N who confirmed the child did not say those words to her.
[47] ICL Outline of Case filed 24 May 2023, p.8.
The ICL submitted the child’s views should be given very little weight due to the inconsistency of her views and the “reality of re-unification with the father”.[48] That is, it had proceeded extremely well, and warmly.
[48] ICL written submissions filed 27 June 2023, paragraph 29.
I accept the submission of the ICL and give to the child’s views, very little weight.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)
I find the child enjoys a very close, loving and appropriately dependent relationship with her mother who has been her primary carer and attachment figure. The child otherwise has a close and loving relationship with her extended maternal family who have been consistently involved in her care because of the assistance they have provided to her single, working mother. These relationships are all very important to the child.
I find the child also has a close and loving relationship with the father and that she was able to readily re-engage with him after a long absence. She was happy, lively, and delighted to be with him. She is attached to him. There has not been alienation of the child by the mother. The child also has a good relationship with the extended paternal family which she has been able to resume without difficulty, save she has not been in the company of the half-brother for a long time. She enjoys spending time with her paternal grandparents and enjoys a close relationship with her cousins who are in proximate age to the child.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The father claimed that he had been unable to participate in the making of decisions in relation to the child due to the mother excluding him from such decisions. He gave as an example, the mother enrolling the child in primary school without subsequently telling him which school the child was enrolled in. As a result of not knowing which school the child attended, the father claimed that he was unable to attend the child’s first day of school and only learned of the name of the child’s school from the mother’s affidavit filed on 26 May 2021. I find that if indeed the father did not know the name of the child’s school, it was by choice. The mother had sent him a photo of the child on her first day at school and he acknowledged he had received that photo. He failed to respond to this gesture. He had chosen to have no discussions with the mother about the child including any matters relating to her schooling.
It was further the father’s evidence that in the period when he was not seeing the child and could have spent time with her in a supervised setting in Melbourne, he was unable to travel to Melbourne to spend such time because he could not afford to do so. I observe that he is gainfully employed, is a tradesman and has other qualifications and/or experience. It is likely he could afford to do so.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has been primarily responsible for maintaining the child since the parties’ separation. She works a six day week to enable her to do so. Throughout 2021 and 2022, there were periods where the father did not pay child support and the mother was solely financially responsible for the child. The father was in arrears in 2020, and again in arrears a few weeks before the trial. These arrears were then addressed by him.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If orders are made in terms of the mother’s proposed orders or the father’s proposed alternate two, there would not be a significant change to the child’s current circumstances. The child would remain living in her current residence with the mother and continue to attend her usual school followed by her attendance at the home of the mother’s aunt for after-school care. Where the child has recently re-commenced spending time with the father, it would not be a significant change for the child to spend further time with the father in a manner that was like the final orders.
If orders are made in terms of the ICL’s proposed orders or the father’s first alternate orders, relevantly, that the child live with the father, there would be a significant change to the child’s circumstances. The child would move approximately two and a half hours drive away from her current residence, where she has close access to her maternal family including her half-sister and the mother’s aunts and be enrolled in a different school. The child would not have any access to her current support systems at school or her friends. Most significantly, she would commence to reside away from her primary attachment figure and her primary carer over all the years since her birth.
If orders are made in the terms as sought by the father in alternate one, relevantly, that the child initially spend time with the mother at S Contact Centre, it would be a drastic change in circumstances for the child. The child has, on the evidence, never spent supervised time with the mother. Indeed, she will commence to spend a period entirely removed from her happy life experience. Plainly, that the father put such a proposal is astounding. Such proposal also goes to the inability of the father to comprehend that his view as to the allegations may not be the correct one.
It was the father’s position that if the child were to live with him, he would enrol the child at T School and will ensure she has an opportunity to participate in extracurricular activities available for the child if she were to live in City O. The child could no doubt over time become accustomed to this change but that alone does not promote her best interests.
Ms K opined the child was not likely to benefit from any significant changes in her primary carer or circumstances, and that the child required predictability and stability, with the opportunity to re-establish her paternal family relationships gradually if it was safe to do so. Ms K further elaborated that it was her view any consideration to change of residence would require caution and only after the child’s relationship with the father and paternal family was re-established, positive and the father’s protective capacity had been tested. I find Ms K’s view to have strength and be supported by the totality of the evidence.
The ICL however submitted little weight should be given to Ms K’s recommendation that the child remain living with the mother, in circumstances where the parties engaged in family therapy, as recommended by Ms K, and such therapy was not successful. The father joined with the ICL’s submission in this regard, and submitted further that the Court should give limited consideration to the Family Report and Ms K’s evidence at trial. I reject those submissions. I reiterate that there was only one family therapy session and note that it resulted in almost immediate reunification of the child and the father as supported by Ms N and the mother at changeovers. Further, that the mother’s poor participation in that single session of therapy, such that Ms N concluded therapy was not a medium suitable for, and to, the mother did not result in an unsuccessful outcome. The focus of the therapy, restoring the child and father relationship, was achieved. This could not have occurred without the mother’s support.
Where the child has lived primarily in the mother’s care since separation, which took place in February 2019 when the child was three years old, and where the child is primarily attached as I find it, to her mother, the likely effect of such a significant change as is proposed by the father and the ICL – who would put Ms N in charge of, in essence what happens next - would be most certainly, as described by Ms N “an initial period of grief and anxiety” that in my view would extend for possibly years given her history of care.[49] There was no evidence that the child is failing to thrive in the mother’s care that such a move is necessary to promote the child’s best interests. There was also, on the totality of the evidence, persuasive evidence to the effect that any internal conflict for the child is not simply caused solely by the mother’s attitude to the father. In both extended households there are negative attitudes toward the other parent. The mother’s attitudes dominated in the period of no contact for obvious reasons. But the father’s attitudes have continued and not dissipated as can be seen in the orders he seeks and in his descriptions of the mother. And this conflict between the parents is not the only source of the child’s reactions at times. Her disengagement during repeated interviewing is not surprising. She is a very young child whose parents are in conflict. She is aware of that. She has also been required to repeat her allegations of the half-brother’s behaviours and clearly does not wish to engage further in that regard. I am not satisfied it is in the child’s best interests for her residence to change to the father. In relation to what time the child should spend with the father, I find the orders sought by the mother and the orders sought by the father in the father’s alternate two position provide for a care arrangement which closely resembles that of the final orders, and which would not be a significant change in the child’s circumstances.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
[49] Transcript 14 June 2023, p.1 lines 7-8.
A practical difficult with the non-residential parent spending time with the child is the distance between the parties’ residence. As outlined earlier in these reasons, it was accepted by all parties that considering the distance between the parties’ residence, it is in the child’s best interests to live with one parent and ultimately spend alternate weekends in the care of the non-residential parent.
Section 60CC(3)(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Both the mother and the father can provide for the child’s intellectual, physical, and emotional needs. Both can ensure that the child has a relationship with the other parent. The mother will need to accept that the father is a protective father.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The mother is of Country U heritage. The father is of Country V heritage and celebrates religious events such as Orthodox Easter. The father deposes that Christmas and Orthodox Easter are culturally significant holidays for his family, with the father sharing Country V traditions such as breaking dyed eggs with the child when time took place on 19 April 2023. Indeed, there was provision in the final orders for the child to spend time with the father on Christmas and Orthodox Easter.
It was Ms G’s evidence that she and the child attend church together on weekends.
It is prudent for the child to enjoy the benefit of both her Country U and Country V heritage. I am satisfied the child should spend time with each of the parents during relevant religious holidays to ensure she can maintain a connected to the culture and traditions each of her parents seek to provide.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The parties co-parenting relationship, and hence their attitudes to the child and to the responsibilities of parenthood, is hampered by their entrenched and extreme negative views of the other. As detailed by Ms M, the mother described the father as manipulative, controlling, a “smiling assassin”, a “functioning alcoholic”, a narcissist, a compulsive liar and claimed that he was gaslighting her.[50] The father described the mother as a compulsive liar, controlling, jealous, and commented that he was astounded that he continued to discover deceit and lies by the mother. The father further did not trust the mother’s capacity to be honest and advised Ms M he had “no doubt” the mother could make up the allegations of abuse by the half-brother and cause the child to believe they were true.[51]
[50] Psychological Evaluation Report of Ms M dated 11 July 2022, paragraphs 52-53.
[51] Psychological Evaluation Report of Ms M dated 11 July 2022, paragraph 52.
Ms M’s evidence as to the parent’s views of each other was:[52]
[X] has two parents with inflexible thinking and therefore reduced parental reflective capacity. They have a pattern of inherent mistrust in the other, resulting in oppositional responses. Such dynamic, in the context of their vastly opposing views is likely to pose significant challenges in any future co-parenting dynamic or capacity for It is appropriate for an order to be made restraining the parties from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or their family members.
[52] Magellan Family Report of Ms K dated 22 August 2022, paragraph 63.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Findings in respect of family violence have already been made and discussed earlier in these reasons in the context of s 60CC(2)(b) of the Act.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order
There were previous mutual Intervention Orders between the parties which have now expired.
There is a current final Intervention Order (“FIVO”) between the mother and Ms N. because of an incident between the two at changeover of the child and half-brother’s care. There is also a FIVO for the protection of the half-brother against the mother which the mother has been charged for breach of following the mother telling a friend she believed the half-brother to be an abuser.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The ICL submitted it is in the child’s best interests to make orders that minimise parental conflict. I agree with this submission and shall make orders that are in the child’s best interests and which avoid further proceedings between the parties to the extent that is possible. That shall include the making of orders such that the child spend significant and substantial time with the father.
I am satisfied having changeover of the child’s care take place at the conclusion and commencement of school will minimise the face to face contact the parents have. Save any school holiday and special occasion provision, the parents will not be required to have frequent face to face contact. It is appropriate for there to be an order restraining the parties from taking photographs or video of the child at changeover.
CONCLUSION
Each of the parents have demonstrated that their conduct, throughout these proceedings, was not always child focused. In the father’s case, he believed the half-brother to the exclusion of the child. He did not, in my view, demonstrate a willingness to see the child in a compromised situation. In the mother’s case, her response to the child’s disclosures was so absolute that she did not demonstrate a willingness to facilitate the child’s relationship with her father, and to conceive of a way forward for the relationship between the child and her half-brother.
As a predicative matter, I do not find the child is at any unacceptable risk of the half-brother abusing the child or is at any unacceptable risk of any physical and/or psychological harm in the care of either parent.
The mother’s conduct in relation to the child’s disclosures, whilst not always child focused, does not amount to emotional abuse of the child. Whilst the mother has deeply negative views of the father and the half-brother, I am satisfied that an injunction restraining her from abusing, belittling, rebuking or otherwise denigrating the father and his family, will mitigate the impact of such views upon the child.
I am satisfied it is in the child’s best interests to remain living with the mother and spend time with the father on alternate weekends, half of school holidays and special occasions. In essence, the child’s time with the parents will revert to that which was provided in the final orders. These are orders which allow the child to have a meaningful relationship with both parents.

Where the child has been interviewed by or spoken with numerous organisations and professionals including DFFH, SOCIT, Victoria Police, Ms K and Ms N in relation to her disclosures about the half-brother, it is appropriate for there to be an order that that re‑introduction of the child and the half-brother be assisted by a therapeutic counsellor as arranged by the ICL and as agreed to by the mother and father with such agreement to be forthcoming within seven days of the making of these orders. Such therapeutic counsellor should not have seen the family previously and a copy of these reasons can be made available to such counsellor.
I do observe the father’s position that he will rely on therapeutic interventions to assist with the child’s reintroduction with the half-brother and that the father will respect an injunction providing for the child not to be brought into contact with the half-brother until a time thereafter. I propose that the restraint continue for a period not more than eight weeks after the making of these orders.

I certify that the preceding two hundred and twenty-seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 2 October 2023

File number:	MLC 7783 of 2019
Judgment of:	HARTNETT J
Date of judgment:	2 October 2023
Catchwords:	FAMILY LAW – PARENTING – MAGELLAN – Parental responsibility – Where previous parenting orders were made by consent – Where parental responsibility is in dispute – Where each of the parents seek the child live with them – Where the child made disclosures her half-brother was inappropriate – Where the mother believes the child’s allegations – Where the father rejects the allegations – Where the child did not see the father for two years – Where the sexual allegations are not substantiated by SOCIT – Where parties engaged in family therapy – Where there is conflict between the parents – Where both parents lacked insight at times – Where conflict impacted upon child’s relationship with father – Where each of the parents seeks an order the child lives with them – Orders made for child to remain living with the mother and spend time with the father – Orders made for child to attend therapeutic counsellor
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Division 13A, ss 4AB, 60CA, 60CC, 61DA, 64B, 65, 69ZW
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Rigby & Olsen [2021] FedCFamC1A 46 R & C [1993] FamCA 62 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Halloran & Keats (2023) 66 Fam LR 640 Isles & Nelissen (2022) 65 Fam LR 288 M & M (1988) 166 CLR 69 Mulvany & Lane (2009) FLC 93-404 Rice & Asplund (1979) FLC 90-215
Division:	Division 1 First Instance
Number of paragraphs:	227
Date of last submissions:	2 August 2023
Date of hearing:	25-26 May, 13-14 June 2023
Place:	Melbourne
Counsel for the Applicant	Ms Teicher
Solicitor for the Applicant:	Macgregor Solicitors
Counsel for the Respondent:	Mr Testart
Solicitor for the Respondent:	Morrison and Sawers
Counsel for the Independent Children's Lawyer:	Ms Braun
Solicitor for the Independent Children's Lawyer:	Bentleigh Family Lawyers

MLC 7783 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HERMAN Applicant
AND:	MR KOZIC Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	2 OCTOBER 2023