HIRST & SEFTON

FAMILY COURT OF AUSTRALIA

HIRST & SEFTON

[2021] FamCA 56

FAMILY LAW – CHILDREN – Best interests of the child – Parental responsibility – Where up until the final hearing the mother contended that the father posed a risk of physical and sexual harm to the child such that orders should be made that the father have no contact with the child – Where father has at all times denied allegations that he poses a risk to the child on any basis – Where court-appointed expert opined that mother’s beliefs about the father were consistent with a delusional disorder – Where in the course of the final hearing the mother purportedly abandoned her contentions about the father and ultimately proposed orders that the child spend substantial and significant time with the father – Where expert gave oral evidence that the mother’s sudden change of mind in relation to her beliefs about the father is more consistent with a deliberately constructed false narrative than a delusional belief and that on this basis some concerns remain about the risk of psychological and emotional harm to child in the mother’s care – Where the Court accepts the expert’s opinion that notwithstanding impairments found in mother’s capacity, the child would benefit from having a meaningful relationship with both parents – Where ICL’s final orders closely aligned with father’s proposal at final hearing that the child primarily live with him and spend defined time with the mother – Where findings are made that the father did not physically or sexually abuse the child and that he does not pose an unacceptable risk of harm to the child on any basis – Where there is a greater risk of psychological harm posed by the mother which favours an increase in the father’s parenting role as a protective measure for the child – Where mother also contends that the presumption of equal shared parental responsibility for the child is rebutted on the basis of family violence perpetrated by father – Where the Court is not satisfied to the requisite standard that father engaged in family violence as alleged by the mother – Orders made that father hold sole parental responsibility for the child and that the child live with the father and spend substantial and significant time with the mother – Orders also made that the parties engage in family therapy to assist in the implementation of orders.

FAMILY LAW – INTERIM ORDERS – Interim orders made pending delivery of final judgment – Where on the last day of the final hearing interim arrangements for the child arose in circumstances where the mother no longer contended that the father posed an unacceptable risk of harm to the child and where it became apparent that each of the parents supported a regime of substantial and significant time with the other – Where the ICL proposed interim orders that would see the child spend increasing time with the father and such time graduate to equal shared care between the parents – Where both parents agreed with the general tenor of the ICL’s interim proposal – Where the risk of psychological harm arising in the mother’s care as identified by the expert and accepted by the Court, is supportive of interim orders being made as sought by the ICL.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC

Deiter & Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Ms Hirst

RESPONDENT:

Mr Sefton

INDEPENDENT CHILDREN’S LAWYER:

Stanford Solicitors & Mediators

FILE NUMBER:

PAC

3548

2012

DATE DELIVERED:

17 February 2021

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 – 9 July, 6 – 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Abdelraheem

SOLICITOR FOR THE APPLICANT:

Aspire Law Group

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Bell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stanford Solicitors & Mediators

Orders

That all previous parenting orders in relation to the child, X born … 2012 (“the child”) be discharged.
That the father have sole parental responsibility for the child.
In exercising his parental responsibility, the father is to:
(a)Notify the mother in writing of any proposed major long term decision concerning the child;
(b)Consider any views expressed by the mother in relation to the proposed decision, and
(c) Notify the mother in writing once a final decision has been made.
That the child live with the father.
That the child spend time with the mother as follows:
(a)Commencing on 25 February 2021, during school terms – from after school on Thursday until before school on Monday in each alternate week;
(b) For the first half of each of the Term 1, 2 and 3 school holiday periods;
(c)On a week-about basis during the Term 4 school holiday periods in 2021 - 2022, commencing with the first week within 2021 and the second week in 2022;
(d)For one half of the Term 4 school holiday periods commencing in 2023 alternating between the second half in odd numbered years and the first half in even numbered years;
(e)At such other times as agreed between the parties.
That for the purposes of Order 5:
(a)The alternate week time in Order 5(a) will be suspended during school holiday periods and will re-commence on the first Thursday of each school term;
(b)School holiday periods are defined as commencing on the last day of term and concluding on the first day that students are required to return to school in the following term.
Notwithstanding any other order:
(a)The child is to spend time with the mother on each Mother’s Day weekend from 5pm on the Saturday until before school on Monday;
(b)In the event that Father’s Day falls on a weekend when the child is scheduled to be with the mother, the mother’s time will be suspended from 5pm on the Saturday.
That all changeovers on school days are to occur at the child’s school, and otherwise on non-school days, at a location agreed between the parties in writing.
That each party is at liberty to communicate with, and receive information from the child’s school, including copies of school reports, newsletters and school photograph order forms and these order shall constitute sufficient authority for this purpose.
That each party is at liberty to arrange separate parent-teacher interviews with staff at the child’s school.
That each party is at liberty to attend events and functions to which parents are generally invited at the child’s school.
That each party provide the other with their current email address and mobile telephone number and notify the other promptly in the event of any change in these details.
That the parties communicate with each other by email in relation to matters concerning the child, other than in the case of emergency when they will communicate by phone.
That each party is restrained from denigrating or making critical or derogatory remarks, about the other party to or in the hearing of the child.
That each party notify the other as soon as practicable in the event that the child is hospitalised, or suffers a major illness or injury, while in that party’s care.
That the mother provide a sealed copy of these orders and this judgment to any treating psychiatrist she has engaged within 7 days of receipt.
That the father provide a sealed copy of these orders and this judgment to the child’s therapist within 7 days of receipt.
That each party do all acts and things necessary to facilitate the child meeting with the Independent Children’s Lawyer for the purpose of these orders being explained to the child. The Court NOTES that the Independent Children’s Lawyer may conduct such meeting together with the child’s therapist if the Independent Children’s Lawyer considers it appropriate to do so.
That within 14 days of the date of these orders, each party will do all acts and things necessary to commence family therapy with a therapist recommended by the Independent Children’s Lawyer in consultation with the child’s therapist, and each party will attend upon the family therapist and comply with all reasonable recommendations of the family therapist to assist in the implementation of the parenting arrangements set out in these orders.
That each party bear their own costs in relation to the family therapy referred to in Order 19.
That each party have leave to provide a sealed copy of these orders and this judgment to the family therapist referred to in Order 19.
That the appointment of the Independent Children’s Lawyer be discharged upon the completion of her obligations pursuant to Orders 18 and 19.
That the parties shall do all acts and things and sign all documents necessary to enable the father to have the child’s name placed on his Medicare Card.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hirst & Sefton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3548 of 2012

Ms Hirst

Applicant

And

Mr Sefton

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the future parenting of a little girl aged eight (“the child”), the only child of the parties (“the mother” and “the father”).
The parties have been in dispute in relation to the child throughout most of her life. The first tranche of the dispute which was commenced in 2012 resolved by way of final orders made with the parties’ consent in 2014 (“the 2014 orders”). Those orders provided in summary that the mother hold sole parental responsibility for the child and that the child live with her and spend gradually increasing time with the father.
A year later, the child’s time with the father under the 2014 orders ceased after the mother alleged that the child disclosed she had been physically and sexually abused by him. The mother initiated these proceedings and subsequently moved with the child to another state. It was her contention from the outset that there was an unacceptable risk of physical and sexual harm to the child in the father’s care such that orders should be made that the child spend no time and have no communication with him.
The father has at all times denied ever abusing the child and has always contended that he poses no unacceptable risk of harm to her on any basis.
In November 2017 the single expert appointed to the proceedings expressed the view that the child was not at any risk of harm in the father’s care but that there is a risk of psychological and emotional harm to the child posed by the mother. The expert urged the mother to undergo psychiatric treatment and opined that if this did not occur it may be best for the child to live with the father.
In August 2018 interim orders were made with the consent of the parties providing that the child’s relationship with the father be re-established with the aid of family therapy. At the completion of several family therapy sessions, the father spent supervised time with the child commencing in May 2019, which eventually progressed to limited unsupervised day time from January 2020.
At the commencement of the final hearing in July 2020, the child was not spending any time with the father as restrictions associated with the COVID-19 global pandemic, and in particular on interstate travel, prevented that occurring. At trial the father maintained his proposal that the child move to live with him. His position in relation to the mother’s time with the child varied throughout the final hearing and is a matter to which I will return.
The mother had contended right up until the commencement of the final hearing that it was in the child’s best interests that she hold sole parental responsibility for the child and that the child spend no time and have no communication with the father . On the first day of the final hearing, apparently after an interview between police and the child was played in court, the mother fundamentally altered her position and sought orders that would see the child begin once again to spend time with the father initially on a limited and daytime basis and thereafter increasing to include some limited overnight time. It was stated on the mother’s behalf that from this time she no longer contended that the father poses an unacceptable risk of harm to the child on any basis.
Although the Independent Children’s Lawyer (“ICL”) did not support either party’s position at the commencement of the final hearing, by the time the evidence was closed the ICL proposed orders very similar to those sought by the father including that the child live with him and that he hold sole parental responsibility for her.
The mother’s position changed again in the course of the final hearing and by the time the evidence was complete she had moved with the child to Sydney and proposed final orders that would see the child spend substantial and significant time with the father which was to begin immediately.
In circumstances where the parameters of the dispute had become very limited, the ICL proposed that interim orders be made pending final judgment that would see the child’s time with the father immediately increase to include overnight time, the child attend a new school proximate to the father’s home and commence therapy to assist in the adjustment to the new arrangements. The ICL also proposed that the mother move the child’s residence to within 20 kilometres of the child’s school within three weeks and that the child then live in an arrangement of equal shared care for block periods of one week alternating between each parent. Alternatively, if the mother did not move within this timeframe then the ICL proposed that the child move to live with the father.
The father adopted the ICL’s interim proposal in its entirety and while the mother agreed with most orders, she proposed that the child continue to live with her and that the father’s time significantly increase on a more gradual basis. She also opposed a requirement that she move the child’s home within a particular time frame.
At the conclusion of the hearing, interim orders were made largely in the terms sought by the ICL and supported by the father and it was agreed that reasons for these interim orders would be incorporated in these Reasons.
The question for me to determine is which of the proposed parenting arrangements is proper having regard to the child’s best interests as the paramount consideration.

Background

The mother who is 31 and the father who is 36 were married in 2011 a few months after they began living together.
In early 2012 the mother left her employment with a government agency and the parties moved to live in another state.
Although the parties dispute the events leading up to their separation, both agree that their relationship was no longer intact from a time shortly after the child was born in 2012.
At some stage following separation both parties returned to NSW and in the months that followed the mother stayed with the child in various rented homes. It appears the father made various attempts to spend time with the child during this period but apart from two occasions the mother did not facilitate the child’s time with him.
In July 2012 the Department formerly known as Family and Community Services (“the Department”) received two reports which were classified as relating to “emotional state of carer”. Neither report proceeded to secondary assessment and both were subsequently closed with no risk of significant harm identified.
The father commenced the first parenting proceedings relating to the child in August 2012 seeking orders that the parties equally share parental responsibility and that the child live with the mother and spend time with him as agreed between the parties.
On 21 November 2012 a report was made to the Department relating to a “risk of sexual harm”. The report proceeded to secondary assessment but was later closed due to competing priorities.
In the course of the first parenting proceedings, the father spent limited time with the child supervised by the mother and other members of the maternal family. The father’s time with the child then slightly increased and for some months occurred without supervision until orders were made in September 2013 providing that this time be supervised at a contact centre. Around that time, the mother held concerns that the child’s behaviour had “changed” including that the child appeared “extremely distressed” after spending time with the father.
The initial parenting proceedings resolved by way of final orders made with the consent of the parties in July 2014. These orders provided in summary that the mother hold sole parental responsibility for the child and that the child live with her and spend time with the father gradually increasing to alternate weekends with him.
From around November 2014 the mother deposes to further concerns about the child’s behaviour including that the child who was then two and a half had become “unusually pre-occupied with her vagina”. Despite holding these concerns, the mother continued to make the child available to spend time with the father which at that stage occurred for some hours on alternate weekends as stipulated in the 2014 orders.
In March 2015, a provisional Apprehended Violence Order (“AVO”) was made against the father by police for the protection of the mother after it was alleged that he followed the mother’s vehicle on a number of occasions after spending time with the child. Not long after, the father (without making any admissions in relation to his conduct) consented to an interim AVO in limited terms for the protection of the mother.
On 16 and 18 March 2015 the Department received a report concerning physical abuse of the child which was referred to the Joint Investigation Response Team (“JIRT”)[1] (as it was formerly known) but this referral was subsequently rejected.
[1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigated allegations of serious child abuse.
The father spent time with the child on two further occasions in late March 2015 before the mother unilaterally decided to retain the child from him on the basis of disclosures said to have been made by the child about sexual abuse. The child spent no time with the father for the ensuing three years.

The abuse allegations

It had been the mother’s case throughout the proceedings that the child disclosed being inappropriately touched and physically abused by the father on various occasions, allegations which the father has always denied.
A short time after the final hearing commenced, the mother “withdrew” her contentions that the father poses an unacceptable risk of harm to the child including on the basis of sexual abuse.
The mother’s allegations that the father physically and sexually abused the child along with her subsequent conduct in denying the child having a relationship with the father, and maintaining her contentions about the harm that he posed to the child until the first day of the final hearing, are central to the father’s contentions that the mother has mental health difficulties and parenting deficits that place the child at risk of harm in her primary care. For this reason, the allegations of sexual misconduct against the father (and other related issues) are matters to which I will return.

Events following the child’s alleged disclosures

In April 2015 the Department received two reports concerning the father’s alleged sexual abuse of the child which were referred to and accepted by JIRT for further investigation.
The allegation that the father inappropriately touched the child also grounded an application for an AVO against him for the protection of the child in May 2015.
At the conclusion of their investigation in mid-2015, JIRT concluded that the child was neither in need of care and protection, nor at risk of serious harm. The allegations of sexual abuse were not substantiated.
From May 2015 until July 2015 the mother moved to live with the child in the maternal grandfather’s household for “support”. Following their brief stay, the mother and child moved again to accommodation some distance away from the father.
In August 2015 the mother commenced these proceedings in the Federal Circuit Court seeking that she hold sole parental responsibility for the child and that the child live with her and spend no time and have no communication with the father. In a Notice of Risk filed in support of her application, the mother raised concerns about the father’s alleged physical and sexual abuse of the child noting the various complaints she contended the child had made about his conduct, and the child’s behaviour which the mother claimed indicated the child’s fear of the father including at the prospect of spending time with him.
In mid to late 2015 the Department received two further reports concerning the child being at risk of sexual harm. Neither report proceeded to secondary assessment and both were closed with no risk of significant harm identified.
In September 2015 the application for a final AVO protecting the child from the father was withdrawn and dismissed.
Between October and November 2015 the father made numerous attempts to contact the mother in relation to spending time with the child in accordance with the 2014 orders. The mother did not respond to the father’s requests and both she and child failed to attend the nominated times for changeover.
The father in his Response filed 27 November 2015 sought orders that the parties hold equal shared responsibility for the child and that the child live with the mother and spend time with him in accordance with the 2014 orders. He denied that he abused the child in any way and deposed that the mother displayed “volatile emotional responses” including exaggerated behaviour. He also raised concerns that the maternal grandfather may have sexually abused the child which he said could have caused the mother to make allegations against himself.
In December 2015 the father filed a Contravention Application contending that the mother failed to make the child available to spend time with him pursuant to the 2014 orders. Around this time the mother made further allegations that the child was emotionally distressed and had expressed extreme reluctance about spending time with the father.
It appears that by early 2016 the father no longer pressed his Contravention Application and continued to seek final parenting orders as set out in his Response.
In February 2016 the proceedings were transferred to this Court.
At a court event on 17 March 2016, the matter was placed into the Magellan Program[2] and an ICL was appointed to the proceedings.
[2] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department of Communities and Justice with the family.
In May 2016 orders were made that the family attend upon a family consultant for the purposes of the Child Responsive Program. Orders were also made with the consent of the parties restraining the mother from permitting the child to reside at any premises in which the maternal grandfather resides and from allowing the maternal grandfather any unsupervised contact with the child.
The family met with the family consultant on 17 June 2016 and the Child Responsive Program Memorandum (“the Memorandum”) was released to the parties shortly thereafter.
The contents of the Memorandum are a matter to which I will return. It suffices to say at this stage that when assessed the mother maintained that the child was physically and sexually abused by the father which the father denied on interview. The father was concerned about the mother’s conduct in preventing him having a relationship with the child as well as issues related to her mental health. It was the family consultant’s recommendation that given the nature of the allegations made during the course of the assessment, further assessment of the family should be undertaken by a single expert such as a child and family psychiatrist or a forensic or clinical psychologist.
On 18 July 2016 in the course of a hearing, interim orders were made with the consent of the parties (“the 2016 orders”) providing that the child live with the mother and that the child’s time with the father pursuant to the 2014 orders be suspended pending final hearing. It was also foreshadowed on this occasion that a single expert would be appointed in the proceedings as recommended by the family consultant.
By August 2016 the father had commenced a relationship with his current partner (“the father’s partner”) with whom he now shares a daughter aged almost two (“the child’s half-sister”).
In October 2016 the mother unilaterally moved with the child to another state.
It was not until June 2017 that a single expert Child, Adolescent and Family Psychiatrist (“the expert”) was appointed to report upon matters relating to the child’s welfare.
The assessment interviews with the expert took place in November 2017 and the expert’s report dated 15 November 2017 (“the 2017 report”) was released to the parties a short time thereafter.
One of the matters raised by the expert in the 2017 report was significant concern about the mother’s mental health and the possibility that the child had been coached to make sexual abuse allegations against the father. In summary, it was the expert’s recommendation that the mother engage in psychiatric treatment and that the child commence spending time with the father in order to foster her meaningful relationship with the both parents.
In February 2018 the mother commenced attending upon a psychiatrist (“the mother’s psychiatrist”) as recommended by the expert and continued to see him until November of the same year.
On 23 January 2018 trial directions were made for final hearing to commence in August 2018.

The final hearing listed to commence in August 2018

At the final hearing of the dispute set down before a different trial judge in August 2018, the parties agreed on interim orders (“the 2018 orders”) that provided, in summary, as follows:
·The 2014 orders so far as they relate to the child’s time with the father were discharged;
·The 2016 orders (suspending the father’s time under the 2014 orders) were discharged;
·The restraint relating to the maternal grandfather was discharged;
·The mother was to hold sole parental responsibility for the child;
·The child was to continue to live with the mother;
·The child was to attend a psychiatric/psychological evaluation and family therapy to assist in re-establishing her relationship with the father;
·The father was attend upon the child’s therapist on three occasions before commencing supervised time with the child. Supervised time was to continue for four months at a contact centre, and thereafter become unsupervised and take place at least once every three weeks for six hours;
·Both parents were to continue to engage with their treating psychiatrists/psychotherapists and comply with recommendations.
On 30 January 2019 the parties advised the Court of the delay in the commencement of the arrangement under the 2018 orders due to the family therapist’s waiting period.
On various occasions between February 2019 and April 2019 the father and child attended upon joint family therapy sessions in accordance with the 2018 orders. The mother deposes that during this period the child remained reluctant to see her father and fearful of him.
The father and child attended their initial contact event at a contact centre in May 2019 and the child is said to have expressed difficulty in spending time with the father.
At the recommendation of the ICL, and with the consent of the parties, orders were then made providing that the father and child attend upon the family therapist for a further six sessions.
From June 2019 until September 2019 the father spent supervised time with the child at a contact centre without significant incident, although the mother maintains in her affidavit that the child was averse to these contact events.
In around August 2019 the mother engaged a new psychiatrist (“the mother’s second psychiatrist”) upon whom she attended for several months. She also continued to consult with a psychologist.
From about September 2019 the parties could not agree on days as well as changeover arrangements to facilitate the child commencing unsupervised time with the father. The child’s unsupervised time with the father did not then begin until January 2020 at which time the parties agreed for changeover to occur at a contact centre.
On 1 February 2020 the father travelled from New South Wales to the state in which the child was residing with the mother to spend unsupervised time with the child as agreed between the parties. This did not eventuate as the child apparently refused to leave the contact centre with the father.
The child successfully spent unsupervised time with the father in March 2020 away from the contact centre and on this occasion she was introduced to the father’s partner and her half-sister. This was the last contact event between the child and the father prior to the final hearing.
Due to the escalation of the COVID-19 global pandemic in around March 2020 and associated restrictions, the final hearing of the matter to commence later that month was vacated.
On 25 March 2020 at a case management court event before me the parties agreed that pending further order the father’s time with the child was to increase to seven hours each third Saturday. However, the father was unable to obtain an exemption from the restrictions imposed on interstate travel so the child’s time with him pursuant to these interim orders did not occur.
In April 2020 the expert prepared an updated report (“the 2020 Report”) relating specifically to the child’s views which was released to the parties a short time later.
Prior to the final hearing and due to the cessation of the child’s time with the father as result of the COVID-19 situation, the father through his solicitors proposed to the mother that he have increasing electronic communication with the child. Although the mother was eventually agreeable to this arrangement, the father says contact seldom occurred as the child was not particularly engaged with him during video calls.

The final hearing

The final hearing commenced in July 2020 and was conducted by video-link for an initial four days.
In her Case Outline filed prior to hearing, and at the commencement of the first day of the hearing, the mother pressed a case that the father poses an unacceptable risk of harm to the child such that it was in the child’s best interests that orders be made that she spend no time and have no communication with him. Towards the conclusion of the hearing on this day, both the mother’s counsel and solicitor withdrew from the proceedings.
Immediately prior to withdrawal by the mother’s counsel, the mother had changed her position and a revised Minute of Order was tendered setting out her altered proposal. That proposal provided that the mother hold sole parental responsibility for the child and that the child live with her and spend time with the father in the child’s home state in a regime that was to gradually increase and ultimately include school holiday time.
When the proceedings resumed the following day the mother was represented by new legal representatives and was cross-examined by counsel for the father.
The mother’s cross-examination was not completed until 9 July 2020 by which time it became apparent that she had dramatically changed her position. In the course of the hearing that day the mother generally withdrew all previous contentions about the risk posed by the father, although some of her evidence appeared to be inconsistent with this stated position. The mother also indicated to the Court that she would consider moving to Sydney regardless of whether orders were made for the child to live with either herself or the father and thereafter her proposal was based on an intention to immediately move to Sydney. After brief cross-examination of the father and cross-examination of the expert, the proceedings were adjourned for a further case management court event on 15 July 2020 in relation to the completion of the final hearing.
On 15 July 2020 the final hearing was adjourned part-heard to 6 and 7 August 2020.
On 6 August 2020 cross-examination of the parties and their respective witnesses including the father’s partner and the maternal grandfather was completed. By this stage, the mother and child had moved to Sydney and were staying with a relative some distance from the father. Due to the ongoing COVID-19 situation the child was still enrolled in her previous school which she attended remotely.
On the last day of hearing, 7 August 2020, it became apparent from the party’s respective final Minutes of Order tendered in the proceedings and closing submissions that each of the parents were supportive of the child spending substantial and significant time with the other parent. Their proposals included an intention by the mother who had not yet obtained permanent accommodation in Sydney to live in close proximity to the father and that the child be enrolled in a school close to the father’s home.
Given that the mother had by that stage recognised through her proposal that it was to the child’s benefit to spend substantial time with the father but the child was spending very little time with the father under the interim orders then in operation, the issue of interim arrangements for the child pending delivery of judgment arose.
The ICL proposed interim orders that in summary provided that:
·The child be enrolled in a school nominated by the father near his home and commence at that school the following week.
·The child’s time with the father immediately increase and include overnight time.
·The child commence family therapy to assist her in moving to the father’s home under a shared care arrangement and in adjusting to her recent move to Sydney.
·The child continue to live with the mother for a further two weeks and thereafter live in an arrangement alternating between each parent for block periods of one week, subject to the mother securing appropriate accommodation within 20 kilometres of the child’s school.
·In the event that the mother did not secure appropriate accommodation within 20 kilometres of the child’s school by 24 August 2020, the child live with the father and spend time with the mother on each alternate weekend until such time the mother secures such accommodation.
·The parties be restrained from denigrating the other party to or in the hearing of the child.
The parties adopted the general tenor of the ICL’s proposal, although the mother proposed that the child remaining living with her and that the child’s time with the father increase to overnight time on a more gradual basis and not ever reach an equal time arrangement. The mother also did not agree that she move the child’s residence by a particular date.
After considering the competing interim proposals between the ICL (adopted by the father) and the mother, orders were made largely in the terms sought by the ICL. It was agreed at the conclusion of the hearing that reasons for the interim orders would accompany the final reasons for judgment, and judgment was reserved.

Family consultant evidence

Child Responsive Program Memorandum

As outlined above, the family met with the family consultant in June 2016 for the purposes of the Child Responsive Program.
When seen by the family consultant the child was only four years old. She lived with the mother and had not seen the father for over a year since allegations were first made that he physically and sexually abused her.
Although not interviewed due to her tender age, the family consultant observed the child with each parent and noted that she presented as having a “warm, established relationship with the mother” but was somewhat ambivalent towards the father’s identity and how she should view him.
It was the mother’s proposal on interview that she hold sole parental responsibility for the child and that the child live with her and have no contact with the father. The father proposed orders that would see the parties equally share parental responsibility and the child live with the mother and gradually spend time with him culminating in alternate weekends in his care.
Most of the issues identified by the family consultant concerned the physical and sexual abuse allegations made by the mother against the father. It suffices to say, that the mother maintained on interview that the father had physically and sexually abused the child consistent with her affidavit evidence. It was the family consultant’s view that these allegations were “serious” but if found to have no veracity, would indicate that the mother is:
…acting maliciously to prevent [the father] from being involved in [the child]’s life [which is] likely to negatively impact [the child] by causing her to be unduly fearful of [the father] and to withdraw from a relationship with him.
Another salient issue identified by the family consultant, and which became the subject of consideration in the expert evidence discussed later in these Reasons, relates to the mother’s mental health.
Otherwise, other matters raised in the assessment related to family violence and the parental conflict and levels of distrust between the parties that appeared to have persisted since separation.
It was common ground between the parties there was no communication between them and their parenting relationship since separation had been highly acrimonious.
The family consultant recommended that given the nature of the allegations raised by the parties, any further assessment of the family should be conducted by an expert with qualifications in family psychiatry or forensic or clinical psychology.

Expert evidence

The 2017 Report

In September 2017 the parties and the child met with the expert for assessment.
For the purposes of the assessment, the expert conducted clinical interviews with, and clinical observations of, the family and reviewed various court documents filed by the parties in the proceedings. A brief interview with the maternal grandfather also took place.
It was the mother’s proposal at the time of the interview that the father have no contact with the child “under any circumstances”. The father by this stage had altered his position and proposed that the parties equally share parental responsibility and that the child live with he and his partner and spend time with the mother.
When interviewed, the mother reported “feeling low in mood” and “anxious” and reported “persistent feelings of worthlessness and guilt” which she attributed to not being able to safeguard the child from the father. After the mother described feeling invalidated by various individuals throughout her life, the expert observed that the mother displayed a “negative thought pattern” and opined that she also demonstrated “heightened emotional arousal”.
The expert further noted that on interview the mother “held firm fixed beliefs that [the father] had sexually assaulted the child” and a belief that the father had “colluded with [the estranged maternal grandmother] to spy on both her and the child”. The expert stated that the mother did not present with generalised worry but rather her anxiety focused on keeping the child safe from the father. She later added that the mother displayed paranoid thinking but did not consider that the mother endorsed abnormal perceptual experiences.

When asked to explain events following separation, the mother briefly recounted her change in residence and the initial parenting proceedings between she and the father. The mother then outlined her early suspicions that the father was sexually abusing the child. She recounted in particular that just after the child’s birth when the child was briefly left in the father’s sole care, she returned to find “blood in [the child]’s nappy” and raised concerns that the father “may have been molesting [the child] from that time”.
The mother went onto explain that when the child returned home from spending time with the father pursuant to court orders she had noticed various “injuries” and later denied the father access to the child after the child allegedly disclosed that he had inappropriately touched her.
The expert observed that the mother was distressed by the idea of the father having contact with the child ever again and described this distress as “palpable”. When the expert offered to change the order of the interview with the father to accommodate her apparent distress, the mother became even more distressed. At this stage the mother told the expert that “[the expert] needed to assess what kind of man [the father] was, because he was evil”. Ultimately, the expert did not observe the father and the child together in part due to the child’s anxiety about seeing the father and the expert’s concern that “[the mother]’s anxiety would escalate even further should the assessment proceed, which…would then be detrimental to [the child]”.
When summarising the mother’s mental state, the expert reiterated that the mother presented as “extremely anxious in her demeanour and demonstrated a high startle response”. Although the expert observed the mother’s thoughts to be “logical, linear and goal directed”, she opined that:
[The mother] was a poor historian in that her narrative was difficult to follow as she did not describe events sequentially…she described fixed firm beliefs that appeared to be paranoid delusions such as that [the father] was stalking her, that her mother was spying on her and that [the father] had been sexually assaulting [the child] since she was a few days old…
The expert later concluded:
[The mother]’s insight into her mental health was poor. [She] appeared unaware of how her level of anxiety was affecting her functioning and she was unaware of the impact that her negative beliefs about [the father] might be having on [the child].
When assessing the child, the expert noted that prior to engaging in any discussion, the child stated that she was “there to talk about what [the father] had done to her and to say that she did not want to live with him”. The expert reported that at various times during the assessment the child reiterated that she did not want to see the father and was distressed when she recounted his alleged sexually abusive conduct. The expert noted that after quickly reassuring the child, the child was only agreeable to seeing the father as part of the assessment if the expert was present.
Later in the assessment, the expert observed that while the child did not display any symptoms of post-traumatic stress disorder or anxiety, the child’s “main worry” was “[the mother]’s wellbeing if [the child] had to live with the father”. When asked about her relationship with her mother, the child said that “if I leave [the mother] she will be by herself, she needs my help”, and thereafter repeatedly stated that her mother needed her.
When assessing the child’s mental state, the expert concluded that the child presented as a “polite, exuberant and articulate young girl” who was confident and “engaged well” in the assessment process. The expert reported that other than when discussing the prospect of meeting the father, the child was “relaxed and calm” and spoke clearly, coherently and was developmentally appropriate. While the child’s thoughts were logical, linear and goal directed, the expert opined that the child appeared “pre-occupied with reiterating…how bad [the father] was”. The expert also noted that the child appeared to be worried about her mother’s wellbeing and appeared to believe that she needed to protect her mother and help her.
When observed, the expert noted that the child’s interactions with the mother were “warm, affectionate and happy”. The expert concluded that the child appeared to share a “secure attachment relationship” with the mother but given the child’s concerns about the mother’s wellbeing, the expert opined that the child was also “somewhat parentified”.
Although she initially agreed to be observed with the father with the expert present, the child later insisted that she not see him and the observation did not proceed for this reason. The expert evaluated that as a result of separation from the father and “perhaps the negative views [the child] has been exposed to about [him]”, the child’s relationship with him has been “damaged”. The expert further observed that when seen by the family consultant in June 2016, despite not recognising the father at the time, the child then aged four reported to have engaged well with him.
The expert concluded that little weight should be afforded to the views expressed by the child given the following factors:
…[the child]’s young age, the fact that she has lived predominantly with her mother, that she has been exposed to her mother’s negative view of her father, and that she has little recent experience or positive knowledge of her father.
When interviewed by the expert, the father denied any mental health problems but reported that following separation he developed symptoms of distress and anxiety. He denied experiencing anxiety symptoms at the time of the assessment but maintained that his distress in relation to having no contact with the child is ongoing, although stated it did not affect his ability to function. The expert assessed that the father “did not endorse any symptoms suggestive of a paraphilia”.
When asked about the sexual abuse allegations made against him, the father said that the mother made these allegations “to stop him seeing his daughter”. He added that he believed that this was also “instigated and encouraged by [the maternal grandfather]” and expressed frustration about the child being “told to say these things”. After firmly denying that he sexually assaulted the child, the father told the expert that both the child and the mother had never called him by his first name (as the child did in her JIRT interview) and explained that only the maternal grandfather referred to him in this manner.
The father was insistent upon seeking a parenting arrangement for the child in which the child would live with he and his partner. When asked about whether the child should have contact with the mother, the father replied “absolutely” but proposed some boundary be put in place to protect the child from the maternal grandfather. The father also told the expert that preventing the child from seeing the mother would “likely be detrimental”, acknowledged the child’s close relationship with the mother and conceded that as a result of no contact for over two years the child was unfamiliar with him.
The expert assessed the father as “calm and contained” throughout his interview apart from when he “became tearful” when discussing the sexual assault allegations and his long separation from the child.
The expert also explored the father’s understanding of the child’s developmental needs and stated that the father had a “good understanding” albeit based on theoretical knowledge of child development rather than on experience.
While the expert also opined that the mother likewise had a comprehensive and accurate understanding of the child’s physical, developmental and intellectual needs, the expert was concerned that both parents failed to understand the child’s psychological and emotional needs.
The expert summarised her view in relation to the mother’s poor understanding in this regard as follows:
…I was specifically concerned by [the child]’s description of how she views her mother as someone that [the child] needs to take care of, rather than the other way around.
Furthermore, my interview with the child suggested that she may have been coached. I based this opinion on three primary factors. Firstly, that without being asked during her interview with me, [the child] immediately volunteered information about the alleged sexual abuse.
Secondly, [the child] provided information about the alleged sexual abuse that was far more detailed than someone her age would have spontaneously recalled, especially given the age at which the alleged offences are reported to have occurred (under 3 years old). It has been established in literature that memories from the first two years of life cannot be consciously recalled later in childhood or adulthood, as children do not have the capacity to accurately perceive, organise or report memories until early pre-school years.[[3]]
Finally, [the child] also used words to describe [the father] that were almost identical to those used by her mother, and used adult expressions that were not in keeping with the rest of her conversation with me eg ‘…I just can’t handle it’.
If the topic of the alleged abuse and the dangerousness of [the father] is being discussed by [the mother] with [the child], then [the mother] is not demonstrating an understanding of [the child]’s emotional and psychological needs. Furthermore, if [the mother]’s accusations of sexual abuse are delusional, which I believe to be highly probable, then she has unintentionally alienated [the child] from [the father], which is detrimental to [the child]’s emotional needs, and in fact potentially harmful to [the child].
[3] References included in original.
In relation to the father’s limited understanding, the expert opined that while the father verbalised an awareness of the importance of the child continuing to have contact with her mother, he failed to understand the impact on the child’s emotional and psychological well-being of being placed in his care. The expert added that, when interviewed, the father focused on his “own successes” rather than the child’s needs and did not explain how he intended to nurture her emotional wellbeing if she were placed in his care.
The expert concluded that both parents had only a “limited capacity” to meet the child’s emotional and psychological needs without further support. To appropriately meet these needs, the expert opined that the mother required psychiatric care, while the father required more time to get to know the child.
In addition to the earlier observations of the mother’s mental health, the expert provided a psychiatric opinion according to the Diagnostic and Statistical Manual 5[4] (DSM-5). It was the expert’s evaluation that:
[The mother] presents with features suggestive of a delusional disorder, specifically she presents with what appear to be non-bizarre delusions of a persecutory nature about her ex-husband…In addition, [the mother] presented with symptoms suggestive of a major depressive disorder in partial remission…These symptoms are likely exacerbated by the…delusional disorder, in that her strongly held beliefs related to her fear for the safety of herself and [the child], exacerbated her sense of helplessness, sadness and anxiety.
[4] Reference included in original.
The expert further opined that the mother’s delusional beliefs and attendant anxiety adversely affect her parenting capacity. The expert stated that the mother’s paranoia will likely have a negative effect on the child’s sense of safety and security, adding that the mother’s fear appears “to some extent to be transferred to the child”. It was the expert’s view that the child has been exposed to “repeated reinforcers related to keeping herself safe” but that notwithstanding her psychiatric symptoms, the mother is “in the main, a responsive, available and capable parent”. The expert then made recommendations that the mother engage with psychotherapy and seek antipsychotic medication to immediately treat her symptoms of delusional disorder.
The expert also assessed the father by reference to the DSM-5 criteria. She opined that the father described symptoms of an adjustment disorder with mixed depressed and anxious moods, and presented with some traits of a narcissistic personality disorder as well as impairments in self-functioning. The expert also opined that the father struggled to empathise with and relate to the child. She did not consider however that these traits met a diagnosis of personality disorder or that they significantly impair the father’s parenting capacity. To enhance his parenting capacity and address his narcissistic traits, the expert recommended that the father engage in psychotherapy.
While the expert expressed concern that the mother’s delusional disorder and attendant anxiety may impair her capacity to have a meaningful relationship with the child, the expert evaluated that the child would benefit from having a meaningful relationship with both parents provided that the mother receives appropriate psychiatric care.
The expert further evaluated that the child is not a risk of physical harm in either of the parent’s care, but that the mother poses a risk of psychological and emotional harm in light of her current mental state and “firmly held belief regarding the danger the father poses to herself and the child”.
The expert did not consider that the child was at risk of psychological or emotional harm in the father’s care and opined that:
…[P]aedophilia, specifically sexual offending against infants and toddlers rarely occurs in isolation. The available information, specifically the absence of any other criminal or disordered sexual behaviour does not support a diagnosis of paedophilia in the father.
The expert then considered each of the party’s parenting proposals. She concluded that the mother’s proposal that the father have no contact with the child was “undesirable”. In the expert’s opinion estrangement from the father and reinforcement of the belief that he sexually assaulted her would likely have long-term negative psychological consequences for the child. The expert expressed support for the father’s proposal that the child initially spend short periods of time with him, but was of the view that this time should be initially supervised. It was the expert’s view that time with the father should only progress to being unsupervised time and later include overnights in the event the child “maintains good mental and emotional well-being during supervised contact”.
The expert was firm in her view that that if the mother did not receive psychiatric treatment immediately the child should live with the father until such time as the mother’s symptoms resolve and parenting can be shared. If the child were to live with the father, the expert recommended that for at least the first twelve months, appropriate supervision and regular psychiatric reviews would be required to ensure the child’s wellbeing and to counteract any negative impact associated with the mother’s condition.
The expert opined that the child appears resilient and if adequately supported, will be able to navigate a change in circumstances if that were to occur. The expert expressed the view that the child will likely be able to reconnect with the father while still maintaining a secure attachment with the mother. The expert reiterated however that unless the mother received psychiatric treatment, living in the mother’s care would be deleterious to the child’s wellbeing. The expert further opined that despite that child’s limited relationship with the father and her apparent fear of him, “ongoing separation from the father will be detrimental to her in the long term”.
The maternal grandfather was also briefly interviewed as part of the assessment and during his interview expressed negative views of the father including that he believed that the father “is trying to fracture [the maternal grandfather’s] relationship with [the mother] and [the child]”. Like the mother, he complained that the father and the estranged maternal grandmother conspired together to “intimidate, stalk and terrify [the mother]”. He also complained of witnessing the emotional distress experienced by the child and later insisted that the father have no contact with the child.
The expert expressed concerns about the maternal grandfather’s “hostile and negative attitude” towards the father and opined that this may negatively affect the child’s view of her father. In addition to recommending that the maternal grandfather be refrained from making negative comments about the father in the child’s presence, the expert recommended that the child be supervised in the maternal grandfather’s company and that the need for supervision be assessed “every 12 months”.

The 2020 Report

An updated report pertaining specifically to the child was prepared by the expert in February 2020. This report was prepared in circumstances where the child’s time with the father had gradually increased and become unsupervised.
At the time of this assessment, the child was nearly eight years old.
The major issue explored by the expert in this report related to the child’s views of her then current circumstances, particularly in relation to her contact with her father, and the weight, if any, to be afforded to those views.
Prior to reporting on the child’s views about her visits with her father, the expert summarised the child’s current psychiatric symptoms and her assessment of child’s mental state. She observed that the child did not endorse any mental health problems beyond feelings of distress which the child is reported to have associated with her contact with her father. While the child also reported feelings of “stress and insomnia”, it was the expert’s view that having regard to the child’s positive school reports, these symptoms “do not appear to cause her any functional impairment”.
The expert further noted that the child presented as an engaging, confident girl whose affect was bright, reactive and mood congruent, and whose thoughts were linear, logical and goal-directed. She added that the child did not endorse any symptoms of depression, anxiety, trauma or conduct problems, and concluded that throughout the assessment she engaged in a thoughtful, considerate and generous manner.
Further in her report the expert reported that the child’s insight into her own mental health was good in that she was able to identify that her fear about her time with her father were associated with her feelings of distress and was able to acknowledge that there was a very small possibility that these fears might be baseless.
When interviewed, the expert noted that the child “advised clearly and articulately that she did not wish to continue the visits with her father”. The expert observed that the child’s view was based on the child’s unshaken fear of being sexually or physically abused by the father. When asked if there was anything that the father could do to make her less afraid, the child replied “no” and later described her negative experience of her time with him stating, “[the father] does try to be kind, but it feels like he is just pretending”.
When asked about how her mother responded to the child’s time with the father, the child told the expert “she is not trying to blame him, she is not saying that anything really happened because she wasn’t there. She is worried that something will happen and that he will do those things again”. The expert noted that the child could not explain how she knew that her mother was still worried but went on to say that the mother was aware that she was scared before and after her visits with the father and tried to comfort her. Later, the child is reported to have spontaneously stated “sometimes I do feel jealous when I see other kids with their Dad…I wish I could have a nice Dad, but he is not nice. He is not a good person”.

As part of this assessment the expert also reviewed reports obtained from the contact centre at which numerous supervised contact events between the child and the father occurred in 2019. The expert opined that the child’s firm view that she is not safe with the father is not supported by these contact reports. She concluded that these reports indicate that despite some initial reticence at the beginning, the child was comfortable and joyfully engaged with her father during their time together. The expert gave examples of some specific comments made in those reports such as “conversation [between father and child] was constant and free flowing”, “giggles during conversation”, “[the child] show no reluctance to [the father] sitting next to [her]” and “no reluctance to [the father] sitting close”.
The expert also commented that the mother’s anxiety about and resistance to the child’s supervised time with the father were also noted in the information obtained from contact reports.
When concluding how much weight is to be afforded to the child’s views and wishes, the expert conceded that it is difficult to prognosticate on this particular question since there is currently no empirical method by which to do so. Acknowledging this limitation, the expert went on to provide the following forensic opinion with reference to developmental theories and other literature (which are omitted):
[The child] is an intelligent child, as evidenced by her academic performance…She enjoys a close nurturing bond with her mother and has a secure attachment to her. [The child] also shares a close and nurturing relationship with her maternal grandparents. She considers her maternal family to be her true family.
…
[The child]’s academic reports and engagement at interview indicate that she understands that there are conventions of conversation, response to question on tests and social comportment. Children in this phase are developing an increasingly sophisticated theory of mind.
…
[The child]’s view about the danger that her father poses appears to be generated or at the very least shared, by those she looks up to, specifically her mother and her grandfather, and she seeks to meet these mutual interpersonal expectations to please her mother and her maternal family. This is part of normal development, when one considers that a child’s development is grounded in his/her early experiences of attachment and the secure base, in [the child]’s case, her mother.
[The child] is to a lesser extent able to orientate towards authority as she has repeatedly said at interview; “he said I had to” or “they said I had to”, indicating that [the child] is aware that she is expected to attend visits with her father. The collateral evidence indicates that once with her father she enjoys her time with him, despite her view of him as dangerous, and her developmentally appropriate drive to align herself with her mother. The cognitive and moral dissonance that this experience is likely to create for [the child] is probably uncomfortable and distressing for her, which is probably why she seeks to terminate her visits with her father. When viewed within the aforementioned developmental paradigm, it is my opinion that [the child]’s wishes and views be recognised as valid, but that the response to this is not to cease contact with her father, rather to facilitate this contact in a way that allows her to experience less cognitive dissonance and distress.
The expert went on to suggest that less cognitive dissonance and distress to the child could be achieved by the maternal family being more supportive of the child’s time with the father and reassuring the child that her father is not dangerous and that being with him is safe and that he seeks to have a relationship with her.
In her concluding remarks the expert reiterated that she remains of the opinion that the mother’s firmly held belief that the father sexually assaulted the child is likely due to a delusional disorder. The expert noted that although the mother’s psychiatrist did not agree with such a diagnosis, both she and the mother’s psychiatrist share the fundamental view that the mother’s ideas about the father are “paranoid ideas”. After further noting that the child’s school records and contact reports indicate that the mother’s anxiety, distress and fear in relation to the child having contact with the father persist, the expert concluded:
It remains my opinion that in order to facilitate [the child]’s development of a secure attachment relationship with her father, it is imperative that the paranoid beliefs held by [the mother] in regard to [the father], are assertively treated.

Oral evidence

When cross-examined at final hearing the expert generally did not resile from the views expressed in her 2017 and 2020 reports.
By the time the expert gave oral evidence the mother appeared to have softened her previously held intense beliefs relating to the father’s conduct and was proposing orders that provided for the child to spend time with the father. In relation to those matters, and in particular the mother’s proposal that the child now have contact with the father, the expert opined:
…as long as [the mother] does not persist in influencing or trying to influence the way that [the child] interacts with her father, then [the mother’s shift in thinking]…would be less detrimental than if she held [her beliefs] with the delusional intensity that she previously displayed.
The expert expressed “some concern” about the genuineness of the mother’s proposal. She stated that she does not believe that “things held with such intensity necessarily disintegrate so quickly” but went on to say that she does think that the mother has a “genuine desire to do what is best for her daughter”. She further stated that in all matters (apart from what she reiterated to be the mother’s “delusional belief” that the child has been physically and sexually abused by the father), the mother has demonstrated her capacity to do what is best for the child.
Further in her cross-examination the expert agreed that it was her recommendation that the mother receive psychiatric treatment such as psychotherapy to try to shift her beliefs about the father. The expert did concede that delusional disorders are generally difficult to treat, and ultimately remained of the view that the mother’s presentation was most consistent with a delusional disorder.
When asked about the dissonance that the expert opined the child is likely to experience and would continue to experience should the mother’s delusional disorder be left untreated, the expert reiterated that it is “distressing” for the child. The expert also described the long term impact of this dissonance, explaining that:
[Dissonance] increases [the child]’s risk of developing her own mental health concerns, so particularly disorders like anxiety. It also…decreases the chance that she will be able to develop and form a secure attachment to her father and that, in itself…can be detrimental to a child’s development. So it can increase her chances of mental health concerns in childhood and adolescence and later life, but can also affect her functioning in other realms.
The expert was also asked about the possibility that the mother never genuinely believed that the child was abused by the father but that that narrative was constructed or developed by the mother. The expert explained that the level of distress and the “pervasive, quite extreme reactions that [the mother] has had over the years…” caused her to believe that the mother’s presentation was “more plausibly consistent with her actually truly believing that and holding to that with delusional intensity”.
The expert later accepted that in the circumstances it is possible that the mother held the belief about the dangers and risks posed by the father for strategic reasons associated with the proceedings. She agreed that the mother may have held a genuine belief that the child’s contact with the father is detrimental to the child and that for some reason she needs to be written out of his life, and that what came along was an opportunity to make the sexual abuse narrative and have the child run with it rather than holding a genuine delusional belief that the father did these things. She went to say that if this were the case this would suggest a more severe pathology as a parent, and could explain the inconsistency in the mother’s amended proposal at final hearing that the child spend significant and substantial time with the father.
The expert opined that the mother’s sudden change of mind in relation to her beliefs about the father is more consistent with a deliberately constructed false narrative than a delusional belief.
The expert was then asked to consider the reason put forth by the mother in the proceedings being that after viewing of the child’s interview with JIRT investigators on the first day of the final hearing she realised that the allegations may possibly not be true. In the opinion of the expert it is “not possible” or “very unlikely” for the mother to have softened her intensely-held beliefs on this basis.
The expert went on to consider the most suitable living arrangements for the child should the Court accept that the mother has constructed a false narrative. The expert discussed that if it were accepted that this had occurred, the child would be exposed to psychological harm in the mother’s primary care and that in circumstances where the psychological harm persisted, “living with [the father] is an option”.
While the expert also agreed that removing the child from the mother’s primary care to live with her father would be distressing for the child, she stated that the father has the capacity to support the child appropriately to manage such a transition. Further in her cross-examination the expert listed examples from which she formed the view that the father had the capacity to be sensitive and attuned to the child’s needs, including the interactions between the child and her father at contact events that were documented in the contact centre records.
Although the expert also acknowledged that being separated from the mother to live with the father would cause the child “significant distress” she concluded that “as long as [the child] can continue to hold her mother in some form of positive regard and that the security of that attachment relationship can be maintained… the effects of it are likely not to be longstanding”, though such an arrangement would require a lot of careful consideration and “robust therapeutic support”.
Ultimately, it was the expert’s view that the child would benefit from having a meaningful relationship with both parents, notwithstanding the impairments she opines are found in the mother’s capacity, and that if the Court were to order that the child live with the father, the child should continue to have contact with the mother on a fairly regular basis. The expert did not support a period of no contact with the mother at that time proposed by the father in the event that the child were to move to live with him.
The expert is a consultant psychiatrist who has additional qualifications and extensive experience in forensic child and adolescent psychiatry. She has practised as a psychiatrist in Australia, the United Kingdom and New Zealand for 15 years. She has previously held positions as a senior consultant child and adolescent psychiatrist in a local health district in New South Wales as well as consultant psychiatric positions at interstate hospitals and overseas. The expert holds an academic appointment as a lecturer in forensic and child and adolescent psychiatry at a university, has undertaken ongoing education and has published papers and completed research projects on various psychiatry related topics.
The expert was extensively cross-examined by counsel for the ICL and father in particular and to a lesser extent by counsel for the mother. Under cross-examination no significant challenge was made to the facts upon which her opinion was based or her expertise. The expert maintained her views and conclusions in most respects and was able to justify her opinions.
At the completion of the evidence a submission was made on behalf of the mother to the effect that I should attach some weight to the expert’s opinion though the mother’s counsel had difficulty quantifying that weight. The main area of concern for the mother was that there was a difference in opinion as between the expert and the mother’s psychiatrist in relation to a diagnosis of the mother’s condition, a matter to which I shall return in some detail. Ultimately, it was conceded on the mother’s behalf that I should accept the expert’s evidence and “place weight” on it.
In my view, little turns on the exact diagnosis with respect to the mother’s mental health difficulties as both the expert and the mother’s psychiatrist consider that the mother showed features of paranoid thinking in relation to the risks posed by the father. This alleged risk, in any event, was a matter from which the mother claimed to have resiled by the completion of the proceedings.
In all of the foregoing circumstances I accept the opinion of the expert and attach significant weight to it.

The Matters In Dispute

Up until the mother’s change in position there were a large number of factual disputes that may have required resolution. Many matters then fell away in the course of the proceedings largely as a result of the mother’s change in position, though some still require resolution in order to make proper orders which are in the child’s best interests.
The mother seeks a positive finding that the father engaged in family violence as for this reason she contends the presumption that it is in the child’s best interests for her parents to hold equal shared parental responsibility does not apply. The mother, does not seek such a finding for any other reason such as in support of a contention that the child is at risk of harm as a result of likely exposure to family violence in the father’s household under any of the parenting arrangements under consideration.
The father denies all allegations that he engaged in family violence against the mother and it is his contention, and that of the ICL, that the presumption of equal shared parental responsibility is rebutted in this case as such an order is not in the best interests of the child.
Consistent with the mother’s various changes in position in the course of the final hearing, she does not seek a finding that the father poses an unacceptable risk of harm to the child on the basis that he may sexually and/or physically abuse the child or for any other reason. She also does not contend that the child does not receive a benefit from having a meaningful relationship with the father.
The ICL seeks a finding that the father does not pose an unacceptable risk of sexual, physical or psychological harm to the child, and submits that such a finding should be made on the evidence. The ICL did not initially seek a positive finding that the father did not abuse the child. However, the mother’s case about the risks posed by the father to the child had been based largely on the mother’s belief that the father had sexually and physically abused the child and this belief is conceptualised by the expert as either delusional or deliberately false. As either of these hypotheses are adopted by the father and ICL, both do seek a finding that the father did not physically or sexually abuse the child as well as a finding that he poses no unacceptable risk of harm to the child.

Did the father engage in family violence against the mother?

In her trial affidavit, the mother deposes to conduct which falls within the definition of family violence[5] during the two and a half years in which the parties’ relationship was intact.
[5] Section 4AB of the Family Law Act 1975 (Cth)(“the Act”) - For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
First, I understand that it is contended on behalf of the mother that the father engaged in controlling behaviour. In this regard the mother deposes that the father regularly interrogated her about matters such as where she was going, why she was wearing perfume and the like and constantly accused her of having an affair or cheating on him. She deposes to him regularly screaming and yelling comments along these lines to her, isolating her from friends and relatives and insisting on her becoming pregnant early in the relationship as a means of personal control. She further deposes to financial control such as the father withholding her bank key card and to the father’s verbal denigration and abuse.
So far as physical abuse is concerned the mother deposes to the father harming her in the course of demonstrating martial arts techniques such as kicking her in the hip, which she says “caused me significant bruising and pain”. She also deposes to an occasion when the husband slapped her hard on her sunburnt skin and to an occasion when he engaged in sexual activity without her consent.
Under cross-examination the mother was asked about the allegations of family violence set out in her affidavit as well as allegations she had made in other circumstances.
So far as coercive and controlling behaviour during the relationship is concerned the mother generally confirmed her evidence that the father cut her off from friends and isolated her from family members. She effectively resiled from the allegation that the father had required her to become pregnant as a means of controlling her, conceding that prior to becoming pregnant with the child she and the father had made a joint decision for this to occur.
So far as physical abuse is concerned, the mother remained firm, as she had deposed in her affidavit that the father generally physically assaulted her in a “set up” “scenario”, under the guise of practising martial arts or would make out that the assault was an accident. As an example of a deliberate assault in the guise of an accident the mother deposes to an incident when she and the father were shopping and a man gave her a compliment about her health when she was nine months pregnant. The mother says that after she thanked the person for the compliment the father deliberately elbowed her hard in her pregnant abdomen hurting her and causing her to feel worried about the baby, while the father claimed it was an accident, a matter she maintained under cross-examination.
Under cross-examination the mother also held firm to her claim that the father showed her martial arts manoeuvres that he was trained to do and hurt her in the process including by slapping and kicking her.
The mother had also deposed that shortly after separation she attended upon police reporting that she was concerned about the father’s anger after she informed him via telephone that she had left the marriage taking the child with her, when he was interstate. The mother agreed under cross examination that at that time she was fearful the father “may get physical” but that he had not done this before.
The mother was also cross-examined about complaints made with the relevant state child welfare authority immediately after she left the father. In records of that agency it is recorded that the mother reported the father had been “constantly emotionally abusive” towards her during the relationship but he “never hit me”. The mother agreed under cross-examination that she had made this complaint but claimed that when she said the father never “hit” her, she meant he had not punched her.
The mother was also asked about her reports to the expert that the father was not “physical (sic) abusive per se” but there were times where he would pretend to show her manoeuvres he was trained to do and hurt her in the process. The mother agreed after much prevarication that she had said this to the expert.

The expert also explained under cross-examination that she had raised some of her concerns about the father (in the 2017 report) as she felt they were matters he needed to be aware of and that they only remain matters of concern if they were persistent. She saw no evidence that these potential matters of concern interfered with the father’s interactions with the child.
The expert also felt reassured about the father’s capacity when she was informed that he had made appointments with an appropriately qualified family therapist to assist he and his partner if the child were to come to live with him and that he planned to take around four weeks leave from work if this were to happen to support the child.
The father’s capacity to manage any transition of the child to his care if that were to occur and the additional arrangements he had made to assist the child with the adjustment, are all weighty factors in relation to the interim orders made when the hearing was complete for the parenting arrangements for the child pending judgment.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

In her first report the expert opined that the mother had a positive attitude towards the child and a demonstrated capacity to shoulder the responsibilities of parenthood. This particular opinion as expressed was not the subject of cross-examination though when answering other questions the expert reiterated her views of the mother’s positive attitude held towards the child.
So far as the attitude towards the responsibilities of parenthood are concerned, as previously explained at length the expert expressed grave concerns if the court were to conclude that the mother had deliberately constructed a false narrative that the father had physically and/or sexually abused the child for strategic purposes associated with the proceedings. In my view although this is a very serious matter it is not necessary for a positive finding to be made as to whether the mother’s false belief about the father was deliberately constructed or delusional in nature as neither the ICL nor the father seek such a finding and all parties agree that the belief about the dangerousness posed by the father was false.
I also accept the opinion of the expert that the father has at all times had a positive attitude towards the child. The father has gone to enormous lengths to ensure that he is able to spend time with the child including at times when the mother made it difficult or impossible for him to do so. His ongoing and consistent commitment to maintaining his relationship with his child demonstrates in my view a commendable attitude towards the responsibilities of parenthood.
The proposals of both parents which changed over time (including the father abandoning his proposal that the child spend no time with the mother after moving to live with him for a few months and the mother’s proposal to move to close proximity to the father so the child’s relationship with both parents could be maintained) show a positive attitude towards the child and their responsibilities of parenthood by both parents.
As was observed when considering the previous matter, the father’s attitude towards the child and his responsibilities as a parent are well-demonstrated in the steps he has taken to arrange for a qualified family therapist and in taking time off from work to assist in the child settling into her increased time in his household. These matters are a good manifestation of his commitment to the child and his responsibilities of parenthood. It is also noted that the father has borne and will continue to bear all financial responsibility for the child’s attendance at the private school at which she is enrolled.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

I have no doubt that an order least likely to lead to the institution of further proceedings will be of benefit to this child.
There has been a long history of non-compliance with orders in relation to the child’s time with the father and multiple court events that have resulted in variation of such orders in an effort to ensure that the child does receive the benefit of having a meaningful relationship with him.
All of the acts of non-compliance with court orders and the need for ongoing variation has arisen, in my view, from the mother’s lack of support for the child having a relationship with her father which itself is based on the mother’s beliefs about the risks posed by the father which I consider to have not completely abated.
For this reason, I am of the view that any parenting arrangement under which the child lives primarily with the mother and the mother retains some control over the child’s time with the father (in that it is she who must take steps to facilitate that time), brings with it the risk of further proceedings instituted by the father to ensure compliance with the orders.
I consider this matter as weighty in relation to both the interim orders made on 7 August 2020 and the final parenting orders.

Conclusion

Interim orders of 7 August 2020

As indicated previously these Reasons relate first to the interim orders made at the conclusion of the hearing on 7 August 2020.
It is to be remembered that the parties had by this stage narrowed the issues between them to a very great extent and each parent was proposing final orders that would see the child live with one parent and spend substantial and significant time with the other.
As the child’s time with the father was at that stage extremely limited, both parents appeared to recognise that it would be in the child’s best interests for her to immediately begin spending increased time with the father as each proposed interim orders that would see this occur (which in the case of the father was an adoption of the proposal of the ICL). The only difference between the two interim proposals related to the father’s time with the child and a proposal for alternate orders by the ICL if the mother did not move the child’s residence 20 kilometres of the child’s school within a specified timeframe.
So far as the father’s time with the child is concerned, the ICL’s proposal adopted by the father would see the child first spend three consecutive days with the father to commence three days after the orders were made. On each of those days the child was to attend an appointment with the father at a psychology practice for therapy and/or an orientation at her proposed school. Following the third such day from the Wednesday to the Friday, the ICL proposed that the child stay overnight with the father at his home and it proposed that she attend her new school on the two school days and that her mother collect her at the end of school on the Friday.
In general, the proposed regime for the child’s time with the father thereafter may be described as involving a rapid increase in that time, leading to an equal time arrangement from 24 August 2020 (18 days after the making of the orders), by which time the ICL proposed the mother was to have moved the child’s home to within 20 kilometres of the child’s school. Thereafter, according to the ICL’s proposal, a “week-about” arrangement alternating between each parent was to be continued.
The ICL proposed that if the mother did not move within the nominated time, the child was to live with the father and spend each alternate weekend with the mother.
The mother’s proposed interim arrangement would have seen the child live with the mother and be enrolled at the agreed school proximate to the father. The mother proposed that the child then spend time with the father during the day for seven hours on a Saturday for two weeks and then for seven hours each alternate Saturday and Sunday of the same week and that a few hours after school then be added in the alternate week.
The mother proposed that one overnight each weekend be introduced (from a point in time that appears to be seven weeks after the making of the interim orders) and that this pattern of one overnight on each alternate weekend continue on a further three occasions after which an overnight on a school day was to be introduced each alternate week.
Under the mother’s proposed interim arrangement the child would ultimately spend each alternate weekend from after school Friday to 5.00 pm Sunday, and one overnight on each alternate Wednesday with the father and this arrangement was to remain in place until the delivery of final judgment. The mother proposed no orders in relation changing the child’s residence to a location closer to the child’s school, but it was stated on her behalf that she intended to do so.
There are other orders that were agreed to by the parties and some other small variations in the form of orders as to matters essentially agreed to (such as the particular arrangements for family therapy) which were so inconsequential that I need not address them.
The focus of the dispute as to interim orders was the rate at which the child’s time with the father was to increase, the amount of time the child was to spend with the father and the question of whether a different arrangement should come into effect if the mother did not move the child’s residence to within 20 kilometres of her school.

Discussion

Both suites of proposed orders would foster the child’s meaningful relationship with both parents, being relationships from which the child undoubtedly receives a benefit.
For the reasons given, I am of the view that there is a greater risk of psychological harm posed to the child in the mother’s care and an absence of risk in the father’s care which favours an increase in the father’s parenting role as a protective measure for the child.
Little weight is given to the child’s view that she wishes to live with the mother and not spend any time with the father, given the child’s age, cognitive development, the circumstances in which that view has developed and the parties’ proposals.
In determining the dispute concerning interim orders, I consider the nature of the child’s relationship with each parent and the likely effect of change in the child’s circumstances (especially the proposed separation of the child from her mother) as particularly weighty considerations. These matters were the focus of submissions made on the mother’s behalf, with particular weight being attached to the significant changes the child had experienced in her circumstances immediately prior to the commencement of the new arrangements under consideration, especially she had just moved to Sydney with her mother and had not spent any significant time with the father for many months.
In light of the numerous changes the child had experienced in recent times, it was submitted on the mother’s behalf that her regime of a more gradual increase in the child’s time with the father, and the end-point of three nights per fortnight in his care, would ease the child into a new regime of substantial and significant time with him. As the mother had agreed to the child receiving therapy during this period of increase in the child’s time with the father, the child would be supported as her relationship with the father developed.
It was also the mother’s position that while she intended to move to an area closer to the child’s school, this was not incorporated in her proposed orders as she did not agree that it should occur within the short period of about two and a half weeks as proposed by the ICL.
Counsel for the father submitted that the child’s relationship with each of her parents, and in particular the father, combined with the need to protect the child from harm and the capacity of each of the parents were all particularly salient matters relevant to the interim arrangements for the child. As there was significant overlap between the submissions made on behalf of the father as to these matters, which reflects the nature of the evidence and the expert’s opinion in these proceedings, I propose also considering them in that manner rather than focusing on these factors individually.
In summary, it was submitted that the child has finally come to settle and enjoy her father’s company following a “tortuous” process that has been occurring for most of the child’s life. It was further submitted that the intermittent and interrupted nature of the progress of the child’s developing relationship with the father must also be seen in the context of the fluctuating nature of the mother’s case.
In this regard, it was noted on the father’s behalf that the way in which the mother’s case had been run was that she only abandoned her argument that the father posed a risk of harm to the child only at final hearing. Her proposal for final orders provided for the child to spend significant time in the father’s household of five nights per fortnight during the school term for half of the holidays, a regime coming close to equal shared care.
The mother’s interim position involves a retreat from this proposal in that it starts once again with block periods of time of seven hours which is no more than the child had previously enjoyed, and was not to include the introduction of overnight until almost two months after the orders were to be made and then only reach three nights per fortnight some six weeks later.
It was conceded on behalf of the father that an increase in the child’s time with him and a change in the nature of that time to include overnights will be difficult for the child, but there was no real challenge to the opinion of the expert that the father had the capacity together with his wife to meet the various challenges that the child would face.
It was the father’s position that the sooner the child is moved to having more time with him, the quicker she could adapt and start to reap the benefits of a much more meaningful relationship with him.
The ICL submitted that it is in the child’s best interests for there to be a short and intensive reintroduction to time with the father and an increase in that time supported by therapy. The ICL focused on the need for the increase in time to be short and intensive for practical reasons (especially given the amount of travelling time the child would have to endure for so long as she lived with the mother some distance from her school), which the ICL further submitted would affect the child’s adjustment to, and enjoyment of, her new school. I accept these submissions and consider these matters to be weighty in resolving the dispute concerning interim orders pending judgment.
I also accept the submission of the ICL that there is a risk that the child may feel angry and resentful towards the father for so long as these impractical arrangements continue because it is likely the child would draw a connection between the new arrangements and her father.
In submissions made on behalf of the mother concerning the interim orders, it was conceded there was no alternate arrangement under her proposal if she did not move the child’s residence closer to her school. In addition no overnight time with the father was to be introduced for many weeks (and even then it was to take place on a weekend only), so under the mother’s proposal the child would be required to spend a lengthy period of time (of at least 45 minutes in each direction) twice a day for the purposes of traveling to school for so long as the mother lived in her then current location.
The mother conceded that the orders proposed by the ICL and adopted by the father were much more practicable than the mother’s proposal.
The ICL’s proposal is intended to address the practical difficulty that arises for so long as the mother remains living some distance from the father by introducing overnight stays with the father on the majority of school days until the mother moves. The ICL’s proposal also has, in the ICL’s submission, the more significant effect, in terms of the best interests of the child, of assisting the mother overcoming her difficulty in facilitating the child spending time and communicating with the father which has characterised the entirety of the child’s life.
As observed by the ICL, changeovers into the father’s care even in more recent times have been distressing for the child. I accept the ICL’s submission that extending the process over weeks or months will not necessarily make the child’s transition to the father’s care any easier, and it is possible that more lengthy periods of separation from the father may even increase difficulties for the child in this regard.
The ICL also acknowledged that any arrangement of increased separation from the mother will be difficult for the child, but submitted the ICL’s proposal provides assistance and support for the child.
Although the ICL’s proposal adopted by the father is described as quick, it is not immediate in that it is proposed for the child to first spend three full consecutive days with her father before the first overnight. These three days and the first overnight was to occur in the context of starting a new school near the father’s home which may provide an explanation for the child for the new arrangements.
I also accept the ICL’s submission that the proposal for equal time on an interim basis, which was to be to be introduced over two and half weeks while the mother moves closer to the child’s school (in accordance with her intention) provides the child with equal exposure to each parent. This will be to the child’s benefit as each parent proposes that she will be spending substantial and significant time with both parents under the proposed final orders.
This equal time arrangement also has the benefit of preserving and enhancing the child’s relationship with her father which I am satisfied is at risk if orders are made as the mother seeks. Those orders provide for a gradual increase in the child’s time with the father as did the previous orders in 2014 and 2018. It appears very clear that the mother has struggled over the last five years at least to promote the child’s relationship with the father and is likely to continue to struggle to promote that relationship notwithstanding her change in position during the proceedings, if interim orders are made as she proposes.
As discussed at length in these Reasons I am of the view that there is a risk that the mother has not abandoned her beliefs about the father which has had a profound impact on the development of the child’s relationship with the father over the years and the risk identified by the ICL is in my view a real one.
In all of the foregoing circumstances and attaching weight to those considerations identified I was of the view when making the interim orders on 7 August 2020 that those proposed by the ICL and adopted by the father were proper having regard to the best interests of the child as the paramount consideration.

Final orders

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[15] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[15] (2006) FLC 93-286.

Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for her (subsection 61DA(4)).
As I have explained, I do not consider that there are reasonable grounds to believe that the father has engaged in family violence so the presumption is not inapplicable on this basis.
Although I accept the evidence of the expert about real concerns that the mother may have engaged in psychological abuse of the child, neither the father nor the ICL contend that the presumption of equal shared parental responsibility does not apply for this reason. Rather, the ICL and the father contend that the presumption is rebutted.
Each of the parents seek sole parental responsibility for the child. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each parent must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
It is common ground between the parents that they have no capacity for joint decision-making and there has been no occasion since separation eight years ago that they have been able to make such a decision in this manner. The only exception occurred on the last day of the final hearing when they both reached agreement that the child attend a particular school and receive therapy, but even these matters involved some initial disagreement.
The expert is also of the unchallenged opinion that the parents had no capacity to co-parent the child and that at best they will engage in parallel parenting.
Both parents conceded in final submissions that it is in the best interests of the child for parental responsibility to be given the parent with whom the child is to live. I agree that such an arrangement is in the child’s best interests and sole parental responsibility will be allocated to the parent with whom the child is to live.
For this reason, the mandatory provisions that require me to consider particular parenting arrangements in the event that an order is made for equal shared parental responsibility do not apply.
The orders that I consider proper and in the best interests of the child for the child’s final parenting arrangements are those proposed by the ICL. These orders are in very similar terms to the final orders proposed by the father, with some exceptions including that the father’s proposal contains a regime for the mother to be required to attend upon a psychiatrist for assessment and treatment and for the psychiatrist to play an ongoing role including in the assessment of risk.
The general parenting arrangement proposed by the ICL and the father is for the child to live with the father (who shall have sole parental responsibility for her) and spend substantial and significant time with the mother being four nights per fortnight during the school term and half of the school holidays. The ICL also proposes ancillary orders which support this parenting arrangement. I consider these orders to be proper as they provide the most suitable framework to promote the best interests of the child for all of the reasons discussed and attaching particular weight to particular best interests’ considerations as discussed.
I have not made orders as proposed by the father requiring the mother to engage with a psychiatrist (though it is noted that the mother intended to engage with a psychiatrist at the completion of the hearing). I consider such orders to be inappropriate as they effectively abrogate to a psychiatrist the question of whether the mother poses an unacceptable risk to the child and provide that if the psychiatrist is of this opinion at time in the future the child’s time with the mother shall be suspended.
As I indicated in the course of final submissions, the issue of any risk posed by the mother is a matter for my assessment on the available evidence.
The expert did not go so far as to suggest that if the mother’s delusional disorder were left untreated the risk of harm she poses to the child would reach such a magnitude that it would be in the child’s best interests for the child’s time with her to be suspended.
In my view, the expert clearly understood the competing parenting arrangements and the tenor of her evidence is that her concerns about the potential harm the mother may pose to the child and impairment in the mother’s capacity may favour a parenting arrangement in which the child lives with the father rather than the mother.
In summary, the evidence, in my view, does not support the orders proposed by the father in relation to the mother’s mandatory psychiatric treatment, though undoubtedly the child will benefit from the mother receiving support for her mental health difficulties if the mother does seek such support.
Another area of departure between the proposal of the ICL and father is that the father also proposes a restraint on the mother leaving the child in the unsupervised care of the maternal grandfather. While there may have been risks posed by the maternal grandfather in the past, there is, in my view, insufficient evidence to justify such an order.
Finally, the father proposes orders in relation to obtaining an Australian passport for the child but this was not a matter that featured in the evidence and is, in my view, not a proper order in the circumstances of this case.
I do, however, make one order proposed by the father additional to those proposed by the ICL in relation to the parties doing all acts and things necessary to enable the father to have the child’s name placed on his Medicare card. As the father is to hold sole parental responsibility for the child and the child is to live with him it is important that the child’s name be included on his Medicare card.
In all other respects the proposals of the ICL and the father are the same and for all of the foregoing reasons I consider them to be proper and in the best interests of the child. Accordingly, I make the orders set out at the forefront of this judgment.

I certify that the preceding three hundred and sixty five (365) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 February 2021.

Associate:

Date: 17 February 2021

[2021] FamCA 56

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Family Law

Evidence

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Expert Evidence

Procedural Fairness

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