Jamain & Parslow - [2023] FedCFamC2F 72

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jamain & Parslow [2023] FedCFamC2F 72

File number(s): BRC 3949 of 2020

Judgment of: JUDGE WILLIS

Date of judgment: 1 February 2023

Catchwords: FAMILY LAW – parenting – where father seeks primary care of the child – where mother seeks father have limited time with child – where mother makes allegations that the father has sexually abused the child – where mother makes allegations the father has a sex addiction – where mother makes allegations of family/domestic violence – where child was medically examined and questioned by Police – where there is no evidence of sexual abuse – where there is no evidence of a sex addiction – where there is no evidence of family/domestic violence – where equal time is in best interests of child – where father offers measured and calm approach to parenting – where father is granted sole parental responsibility for child’s medical needs – where mother’s time with child is conditional upon her receiving psychological support to prevent further false allegations of sexual abuse and address the beliefs she presently holds about the father’s parenting capacity

Legislation:
Evidence Act (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 60CC, 60D, 61DAA, 64(1), 65DAA(1), 65DAA(2)

Cases cited:
A v A 1998 (FLC 92-800)

Briginshaw v Briginshaw (1938) 60 CLR 336

M & M [1988] HCA 68; [1988] 166 CLR 69; (1988) FLC 91-979

MRR v GR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 301

Date of last submission/s: 20 May 2022

Date of hearing: 7-9 March 2022

Place: Brisbane

Counsel for the Applicant: Ms Kenny

Solicitor for the Applicant: Insight Family Law and Mediation

Counsel for the Respondent: Mr Page QC

Solicitor for the Respondent: Elliott & Harvey Solicitors

Counsel for the Independent Children's Lawyer: Mr Jones

Solicitor for the Independent Children's Lawyer: Bridges Family Law Specialists
ORDERS

BRC 3949 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR JAMAIN

Applicant

AND:
MS PARSLOW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE WILLIS

DATE OF ORDER:

1 FEBRUARY 2023

THE COURT ORDERS ON A FINAL BASIS:
Parental responsibility
1.That save and except as otherwise stated in Order 4 herein, the Mother and Father shall have equal shared parental responsibility for the major long term issues of the child X born in 2011 (“the child” or “X”), including but not limited to:
(a)the child's education (both current and future);
(b)the child's religious and cultural upbringing;
(c)the child's name; and
(d)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with each parent.

2.That the parents are to consult each other about decisions made in the exercise of their equal shared parental responsibility (noting the exception referred to in Order 4 herein regarding health matters) and shall make a genuine effort to come to a joint decision.
3.That notwithstanding the provisions of Order 2 and subject to Order 4 herein regarding health matters:
(a)the Mother shall be responsible for the day-to-day care, welfare and development of the child when the child is living with or spending time with her; and
(b)the Father shall be responsible for the day-to-day care, welfare and development of the child when the child is living with or spending time with him.

4.That for the purposes of Order 1 herein in relation to equal shared parental responsibility, with respect to all health decisions relating to the child (to include medical and mental health conditions including any counselling the child is to undertake), in the event the parents are unable to reach an agreement about such a decision after informing and consulting with each other, the father shall have the sole decision making responsibility to make the ultimate decision and will communicate this decision in writing to the mother within 7 days of doing so.

Live with and spend time with arrangements
5.That, subject to:
(a)the transitional provisions referred to in Order 6 herein; and
(b)the mother complying with the condition referred to in Order 7 herein;

the child will live with each party on a week about basis, with changeover to occur at 3.00pm or school finishing time on each Friday.
Transitional provisions
6.That the child will forthwith live with the father as follows:
(a)For 4 nights starting immediately:
(i)In week 1: Friday, 3 February 2023, to Monday morning;
(ii)In week 2: Thursday after school to Friday morning;

(b)After 8 weeks thereafter:
(i)In week 1: Friday to Tuesday morning;
(ii)In week 2: Thursday after school to Friday morning;

(c)After 8 weeks thereafter:
(i)In week 1: Friday to Wednesday morning;
(ii)In week 2: Thursday after school to Friday morning;

(d)After 8 weeks thereafter:
(i)The child will live with the mother and father on a week about basis as referred to in Order 5 herein.

Condition
7.That all of the Orders herein that provide for the child to live with the mother (including but not limited to Orders 5, 6, and 10-13 herein) are subject to the condition that the mother will attend upon a qualified psychologist or psychiatrist (not being any psychologist, psychiatrist, or other mental health professional, who the child has attended upon or will be attending upon) (“the professional”) in order to obtain professional assistance to address her anxieties regarding the child spending time with the father, including her currently held beliefs and attitudes about the father sexually abusing the child and family violence issues as set out in this judgment.
8.To facilitate Order 7 herein the mother is to:
(a)provide a copy of the final judgment to her psychologist or psychiatrist upon whom she attends for the purpose of compliance with this Order; and
(b)provide written evidence to the father of the identity of the professional she is attending upon and evidence of her ongoing attendance each four months; and
(c)attend upon such professional until the professional provides written evidence to the father to the effect that:
(i)the professional has concluded that the mother has altered her attitudes and beliefs towards the father and her anxieties have decreased in terms of the child living with the father.

9.That the ICL and the father also have leave to provide to the professional a copy of these Orders and the final judgment in compliance with Order 8(a) herein.

Holidays
10.That the regularly occurring week on week off arrangement referred to in these Orders is suspended during all Queensland gazetted school holidays and during the school holiday periods the child will live with each party as follows:
(a)the child live with the father for the first half of the school holiday periods in odd numbered years and the second half in even numbered years.
(b)the child live with the mother for the first half of all school holiday periods in even numbered years and the second half in odd numbered years.
(c)in odd numbered years the father collect the child at 5.00 pm on the last day of term and return the child to the mother at 5.00 pm on the mid day of the school holiday period.
(d)in even numbered years the mother collect the child at 5.00 pm on the last day of term and return the child to her father at 5.00 pm on the mid day of the school holiday period.
(e)the child spend time with the mother for the first week of the December/January school holidays in odd numbered years.
(f)child spend time with the Father for the last week of the December/January school holidays in odd numbered years.

Christmas
11.That, by Consent, notwithstanding any other orders for time arrangements, X shall share Christmas with each of her parents:
(a)In odd numbered years from 3pm Christmas Eve to 3pm Christmas Day with the father and from 3pm Christmas Day to 3pm Boxing Day with the mother; and
(b)In even numbered years from 3pm Christmas Eve to 3pm Christmas Day with the mother and from 3pm Christmas Day to 3pm Boxing Day with the father.

Maternal family holiday
12.That, by Consent, notwithstanding any other orders for the child’s holiday time with each of the parties as set in out in these Orders:
(a)each year X will spend the first week of the B Catholic Education Office Published Christmas School Holidays with the mother (for the purpose of a maternal family holiday) commencing at 9am Saturday and concluding 9am the following Saturday; and
(b)the child will spend the week immediately following the week referred to in Order 12(a) herein with the father commencing at 9am Saturday and concluding 9am the following Saturday, or another week as nominated by the father.

Child’s birthday
13.That the child spend time with the parent she is not already spending time with on the child's birthday:
(a)if a school day, after school until 7.00pm;
(b)if a non-school day, from 9.00am until 2.00pm.

THE COURT NOTES that this Order is not intended to interrupt any block holiday period provided for in these Orders where the child is spending time with either parent.

Changeover
14.That unless otherwise agreed changeover is to occur to and from school on school days, and on non-school days at C Park on D Street, Suburb E.

Communication
15.That each parent is at liberty to make telephone calls or video call contact via FaceTime, Skype, or other available media, with the child at all reasonable times as may be agreed between the parties and failing agreement each day between 6.30pm to 7.00pm, with the parent not currently spending time with the child making the call to the child and the parent with the care of the child doing all acts and things to facilitate this contact.

Child attending a psychologist
16.That the parents shall forthwith jointly facilitate the child attending upon a duly qualified clinical child psychologist (not being any psychologist that the child has previously been engaged with including Ms F ) (“the psychologist”) for the purposes of receiving confidential independent support and counselling. To effect this:
(a)each parent shall provide information as requested to the psychologist as part of the initial intake process;
(b)neither parent shall seek any information from the psychologist as to the child’s counselling save for the information that the child authorises the therapist to discuss with her parents;
(c)should a parent need to discuss any issue with the child’s psychologist then he or she shall first discuss this issue with the other parent and only then, through a joint approach, can the issue be raised with the child’s psychologist;
(d)the mother and father are granted leave and are required to provide a copy of these Orders and final judgment to the child’s treating psychologist, together with the Family Report of Mr G, and the report of Ms H, and further the ICL also has such leave; and
(e)the mother is restrained from making any arrangements with the child’s psychologist for joint counselling or for her own individual counselling;
(f)the parties are to share the costs of the psychologist equally.

IT IS FURTHER ORDERED BY CONSENT ON A FINAL BASIS:
School
17.That X shall complete her primary school education at J School and her secondary schooling at K School.

Authorities
18.That the parents shall do acts and things necessary to keep the other informed of any doctor, health care provider, professional person, extra-curricular provider, education provider, vacation care provider, outside school hours provider, or any other service provider, upon whom the child attends, or who is involved with the child.
19.That these Orders authorise any service provider, or holder of information about the child, to provide such information as is normally provided to parents, and copies of any documents about the child normally provided to parents, to each of the parents.
20.That each parent shall inform the other without delay and as soon as practicable of any significant medical condition, or serious injury, or illness, suffered by the child.
21.That this Order authorises any medical or health care professional or provider to release medical information normally provided to parents to the parties.
22.That if there is a cost associated with the provision of any information or documents requested by a parent under these Orders, such expense shall be borne by the parent requesting the information or document.
23.That each parent will keep the other informed of their residential address, email, and telephone contact numbers at all times.
24.That subject to any conditions imposed by the child’s school, these Orders authorise each parent to attend any school function to which parents are normally invited including but not limited to carnivals, sport days, fetes, concerts, plays, and parent/teacher information and meetings, subject always to the discretion of the school authorities.
25.That each parent is to make their own arrangements with the school attended by the child to receive their own notifications of all school or sporting events occurring at the school including school reports and newsletters.

Non-denigration
26.That during the time X lives with each parent pursuant to these Orders, each parent will:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent or their family and will remove the child from the presence or hearing of any person doing so; and
(b)Be restrained from discussing any of the evidence given in these proceedings directly with the child or in the child’s presence or hearing and they will remove the child from any person doing so; and
(c)Each parent is restrained from making any Court document in these proceedings available to the child.

27.That each party is restrained from denigrating the other party or the other party’s family directly to or in the presence or hearing of the child and will remove the child from any person doing so.

IT IS FURTHER ORDERED ON A FINAL BASIS:
Travel
Inside of Australia
28.That, except for travelling to northern New South Wales (down as far as Town L and City M areas where no notice is required), the parent intending to take the child outside the state of Queensland shall give the other parent 7 days’ notice of his or her intention to do so. THE COURT NOTES that this is a notice provision and does not require the agreement of the other parent.
Outside of Australia
29.That neither parent shall remove the child from the Commonwealth of Australia without first obtaining the other parent’s prior written consent or an order of the Court.
30.That in the event that the parents agree that the child can be removed from Australia for the purposes of a holiday, that parent is to give the other parent 28 days’ notice of their intention to do so and the other parent shall not unreasonably withhold consent.
31.That the travelling parent shall:
(a)provide the other parent with a copy of the proposed itinerary and contact details for the child; and
(b)ensure the child has reasonable communication with the other parent during the holiday such as is reasonably possible given the particular destination.

Leave to file further parenting application
32.That in the event that the mother continues to make allegations against the father as has occurred in these proceedings and/or submit the child for examination relating to possible sex abuse or suspends the father’s time, the father has leave to file any further parenting application for Final Orders in relation to the child, without the requirement to satisfy the significant change of circumstances threshold as identified in Rice & Asplund.

Publication of this judgment
33.The mother’s application for a suppression/non-publication order in relation to these Orders and the judgment is dismissed.
34.That the father and mother and/or the ICL are authorised to provide a copy of these Orders and judgment of this Court to:
(a)the Commissioner of Police; and
(b)the relevant department of child safety; and
(c)any medical professional (including but not limited to psychologist and counsellor) upon whom the child attends or has attended, or attends in the future; and
(d)any educational institution that the child attends or has attended; and
(e)to the proper officer of any institution, entity, company, Court, or investigative body or investigative agency (or person/s appointed by such bodies), or other organisation (including the father’s workplace), where the mother has made any claim, complaint, raised any grievances, and/or commenced any action, based on the premise that the father has perpetrated acts of domestic or family violence against her or that he has been sexually abusive to the child.

Other Orders
35.That the ICL is discharged 30 days from the date of this Order.
36.That all outstanding applications are removed from the active pending cases list.

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

The applicant in this contested parenting matter is Mr Jamain (“the father”) the respondent is Ms Parslow (“the mother”).
Their only child X, born in 2011 (“the child/X”) was 10 years and nine months at the time of the trial.
The parties are unable to agree upon the future living arrangements for X.
Father’s orders sought
In his application commenced on 9 April 2020 the father set out final orders for an equal time arrangement. By the end of the trial the father was seeking orders that X’s time build up to a situation where X transitions into his primary care and the mother has alternate weekends commencing on Friday and concluding on the following Tuesday morning.
The father also sought standard orders in relation to half of the holidays, orders about exchanging information and orders about the parents being able to travel outside the Commonwealth of Australia with X, provided they have the prior written agreement of the other parent.
Whilst the father agrees to an order for equal shared parental responsibility that is qualified by adding that in relation to health issues, he wishes to have sole parental responsibility such that in the event the parties could not reach agreement, the father would have the sole decision making authority and will communicate that decision to the mother within seven days of making the decision.

He denies all allegations of any sexual impropriety with the child including taking her to a brothel. The father also denies the allegations of family violence made against him by the mother.
The father has set out other orders in relation to provision of information and other specific issues.
In submissions at the end of the trial counsel for the father advised the court that there have been some orders agreed to by the parties in this matter. They are also set out on the submissions document headed additional orders of the applicant, prepared on behalf of the father by his counsel which also lists other orders which the parties are agreed to. As can be seen from the document it was agreed that X will complete her primary school education at J School and her secondary schooling at K School.
There is also agreement that notwithstanding any other time orders, that X will spend one particular week each year with the mother for the purposes of having a maternal family holiday, being the first week of the B Catholic Education published Christmas school holidays. X will then spend the immediately following week with the father as set out in the father’s addition order numbered 11.
There are certain authorities set out in the father’s additional orders[1] numbered 12, 13, 14, 15, 16, 17 and 18. The father seeks additional order 2, that the mother and father do all acts and things to enable the child to attend upon a clinical child psychologist for the purpose of confidential, independent support and counselling, and for such purpose each parent has leave and be required to give that counsellor a copy of the Family Report by Mr G and the report of Ms H of February 2021, specific final orders, and any published reasons for judgment. There are a range of other orders relating to special days, notice provisions, non-denigration, and similar.
[1] In addition to the Orders in his application filed 9/4/20
The father also seeks additional order 4, that each parent be at liberty to make telephone or video calls with the child at any reasonable time as may be agreed between them, and failing agreement, each day from 6.30pm to 7pm with the parent not currently spending time with the child making the call to the child and the parent with the care of the child doing all acts and things to facilitate that call or contact.
The court queried through final submissions, as to whether the father sought an order that he be permitted to show the various statutory bodies who have been involved in the alleged sexual allegations made by the mother (the Police and the relevant department of child protection) a copy of the findings and Orders, and likewise whether he would be permitted to show the outcome of the mother’s allegations of family violence to the employer to whom the mother had complained about the father’s perpetrating family violence including at the workplace. The mother is seeking a non-publication order. That issue will be determined in a separate judgment.
Mother’s orders sought
The mother relies upon her Further Amended Response to an Initiating Application filed on 1 March 2022. The mother seeks an order that the child remain living with her primarily and generally proposes a slow build of time with the father to an arrangement where the child spends initially one night a fortnight and some day time only, and in July 2023 the child’s time with the father increases to Friday night and concludes on the following Monday at the commencement of school, each alternate weekend. There is an overnight in the second week.
In relation to the major items, the mother seeks equal shared parental responsibility. At the commencement of the trial the mother was seeking an injunction pursuant to section 68(b)(1) that at all times when X is spending time with the father, he is restrained from discussing in the presence of X and/or exposing X to sex workers, massage facilities and/or pornographic content. By the conclusion of the trial, Mr Page QC did not press that order and said it was no longer sought.
As to the child’s time with the father, the mother’s Further Amended Response at proposed order 5, is that the child will live with the mother and spend time with the father as per order 6 to 9 up until Sunday 9 July 2023. Then a different regime is to be put in place after 9 July 2023.
Order 6 states from the date of this order until the last day of the Sunday 9 July 2023 X shall spend time with each parent as agreed, but at least in week 1 on a Monday for 5 hours from after school (or 3pm on a non-school day) until 8 pm. And also the Friday of week 1 for 5 hours from after school (or 3pm on a non-school day) until 5pm the immediately following Sunday. This appears to have been increased to Monday during the trial.
In week 2 the father is to spend time with the child on Thursday for 5 hours from after school (or 3pm on a non-school day) until 8pm.
As to the school holidays the mother does not agree to share one half of the school holidays.
The mother proposes during this first time period up to 9 July 2023, the father is to spend time on a fortnightly rotation of week 1 with the child on Monday of the school holidays from 9am till 8pm, and the following Friday of that week from 9am until 5pm Sunday. After that the child is to spend time during school holidays in week 1 on the Monday from 9am to 8pm and from 9am the following Friday of that week. In the second week of the school holidays, the father is to have one day being Thursday from 9am till 8pm. And then it is added that the child is with the mother at all other times, other than when she spends those times at 6(a) and (b) with the father.
Changeovers are agreed to occur at C Park, D Street, Suburb E.
The mother’s Second Amended Response and Case Outline contains extensive other orders and restraints which I have read which I will not repeat save to say they will be considered later in the judgment. There are a range of other orders sought by the mother relating to communication with X, who the child can be introduced to in terms of new partners, with specifics as to how this is to occur, restrictions on travelling beyond the state, and other similar matters which I will deal with when determining the orders in this matter. I have thoroughly read all of the mothers orders sought and they are listed out to about 47 different orders. Many appear to be micromanagement by the mother.
At the conclusion of the trial Counsel for the Mother sought an order that the parties attend upon a parenting coach and that they continue to do so until sometime (seemingly determined by the parenting coach) into the future when they have improved their trust and ability to co-parent. Further, the submission continues that no changes should be made to the child’s living arrangements until this step is implemented and completed.
Independent Children Lawyer’s orders sought
There is an Independent Children’s Lawyer (“the ICL”) in this matter, Ms Khushal. She has been represented by Mr Jones of counsel. The ICL seeks orders that the child live with each party on a week about basis and that there be a slow transition to a week on week off arrangement. The ICL supports the father’s orders for one half of the school holidays in similar fashion to order 5 of the father’s orders sought.
The ICL does not accept that the father represents any risk or any unacceptable risk to the child as alleged by the mother. The ICL submits that the child has a very close bond with the mother and father, and that she has always lived with the mother and does not support a change of primary residence to the father. The ICL does support the child living in an equal shared care arrangement of week on week off.
The ICL supports an Order that if the Court concludes that the mother’s allegations against the father are groundless, and noting that the mother still says in her evidence that she holds the belief that the child is being sexually abused by the father, that a copy of the Court’s judgment and Orders should be made available to the statutory authorities, the child’s doctor, and others to whom the mother has made allegations about the father.
The ICL seeks an order that the child receive confidential therapeutic assistance from a qualified psychologist along with strict limitations preventing either party from seeking information from the therapist and restricting individual approaches being made by the parents to discuss any issues and very importantly that the mother not engage with the same therapist for any purpose at all that the child is attending upon, which the Mother has been doing.
This is set out in order 12 of the ICL’s proposed orders and is drafted to prevent the mother engaging in this type of behaviour as was apparent from the evidence. The father has not engaged in this, as will be seen in these reasons. The ICL makes it clear in submissions that the child’s current counsellor is not a clinical psychologist as was recommended by Mr G, but is rather a mental health occupational therapist. As well, there have been issues of conflict of interest arising with the current counsellor given her conduct to date, as will be seen in this judgment, such that the current counsellor is precluded from continuing to be the child’s counsellor.
The ICL seeks an order for equal shared parental responsibility for the child.
There are, as I have said, agreed orders between the mother and father and they include X always having the first week of the gazetted Catholic school holiday calendar following term 4 in each year, and then with the father for the first week of the state school holiday calendar following term 4 in each year. This seems to be the only full week each year that the father is to have with the child.
Orders about Christmas and the child’s attendance at specific school are agreed to as referred to earlier along with the changeovers location.
A statement in this judgment represents a finding of fact unless indicated otherwise.
THE ISSUES
This litigation which started in 2020 has centred around the mother’s allegations that the child is at risk in the care of the father. There have been two major themes advanced by the mother.
The first is the mother alleges that the father has a sex addiction. This theory is based on the father’s evidence that in the last couple of years of their relationship he sought out services of a sex worker. This decision was taken in the context of the Mother and Father no longer having a sexual relationship (an agreed fact) following the birth of X which was in 2011.
Based on the mother’s theory of the father having a sex addiction, the mother then formed the conclusion that the father represents a risk of sexual abuse to the child. The mother alleges that the child told her that the father had taken the child to a brothel where the mother says the child has waited whilst the father engaged in sexual service. The mother also asserts her belief that the father has likely interfered in a sexual way with X such that this is the cause of her experiencing urinary tract infections (“UTIs”) and other vaginal irritations. The mother also alleges that the father has likely been grooming X and that this is why X has not made any disclosures. Further the mother believes that the father has likely drugged the child and sexually abused her whilst on holiday with her father at the paternal grandfather’s home in City M. The mother believes that it is likely the abuse will continue.
The second issue advanced by the mother is the father’s perpetration of family violence and/or domestic violence (“family violence”). The mother has made allegations of this occurring both at home, at the child’s school and in their joint workplace. The mother has raised the issue of family violence with her supervisor and had sought special conditions at work as a result of the alleged family violence. The mother made complaints in her work place that her complaints and concerns within the workplace were not taken seriously enough by her supervisors. This is an ongoing dispute that the mother has in her workplace. The mother has been on unpaid leave for an extended period of time since this issue has surfaced.
The mother has however accessed her income protection insurance policy and is receiving an income from that source to mitigate the financial consequences of her taking unpaid leave.
The mother says she took “leave as a result of stress of these proceedings and further due to the lack of support I experienced in the workplace in response to my informing my superior of domestic violence concerns. On a number of occasions I informed my superior that I felt Mr Jamain was a threat to my and X’s safety and wellbeing and that I was concerned about working with Mr Jamain and concerned about him checking up on me at work by approaching my desk (when there was no reason to be there) and having access to my calendar amongst other things.”
By the end of the trial Mr Page QC for the mother submitted that “my client has an anxiety in relation to the father’s social habits and his treatment of the child. There is no evidence which supports there to be any suggestion on my part that there is an unacceptable risk of the child with him and I don’t make that in that case and my client clearly doesn’t make it.” I asked Mr Page what has happened to the allegations that the father is essentially a paedophile, and Mr Page replied “there is no evidence that supports him being a paedophile. We accept that.”[2]
[2] Transcript of submissions on 9 March 2022, line 45, page 10 onwards.
When I queried with Mr Page that this major concession did not accord with the evidence that I heard during the trial, Mr Page replied he told his client what I “would be submitting to the court and whatever her whatever her belief was she knows that I would say that there is no evidence to create an unacceptable risk. If that was the case we wouldn’t be making a suggestion that we would accept these orders that the ICL is making and that they would be asking for a change of living and the imposition of supervision when the child visits the father.” Mr Page said “we had not done that and neither has the ICL.” Mr Page submitted that we don’t accept that or that the father’s time take place at an institution.
The difficulty with counsel’s submission is that it is not in accordance with his own client’s evidence. The mother’s evidence was in fact completely to the contrary namely that she firmly held the belief that the father has sexually abused the child.
For this reason, I am making determinations based on her evidence not on counsel’s submissions. I consider it is extremely important in this matter for an evaluation of all of the mother’s evidence to be made as she is making serious allegations against the father and there was nothing in her evidence to the effect that she now accepted he was not a risk to the child. There was no announcement at the beginning of the trial that the mother no longer pressed her allegations or even during the trial. It was simply a submission made in final submissions.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
When deciding what parenting orders to make it is the best interests of the child which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in section 60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
In MRR v GR [2010] HCA 4 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an order for equal time, or if not equal, significant and substantial time.
This matter involves allegations by the mother of sex abuse of the child by the father. I have had regard to the authorities regarding unacceptable risk as referred to in cases such as the High Court case of M & M [1988] HCA 68; [1988] 166 CLR 69. In order to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, this Court would need to be satisfied towards the strictest end of the spectrum, given the serious nature of the allegations, and the case law as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. It is now more appropriate to refer to section 140 of the Commonwealth Evidence Act (Cth) which is derived from this High Court decision. Dixon J concluded that inexact proofs, indefinite testimony, indirect inference or equivocal hypothesis will not do: Briginshaw at 362.
The factors mentioned in the Briginshaw test were stated by Dixon J. in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 who said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
In M and M (1988) FLC 91-979 (High Court) their Honours Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ considered the tests appropriate to define the magnitude of the risk which will justify a court in denying a parent access (now contact) to a child. The majority of the High Court concluded that,
To achieve a proper balance the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In M and M (supra) the appellant (whose argument was rejected) had urged the High Court to an approach which required identifying the allegation of sexual abuse as the paramount issue for determination by the Court. The Court stated that,
In proceedings under Pt. VII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child” as the paramount consideration (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”[3]
[3] At 77,080.

A little later in their judgment,[4] their Honours stated,
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless.
[4] At 77,081.
The unacceptable risk test was considered by the Full Court of the Family Court (Fogety K and Brown JJ) in A v A 1998 (FLC 92-800) where it was said at (84,996):
firstly enquire into whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not the Court may then need to consider whether the resident parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of children. The Court then needs to take steps proportionate to that circumstance.
BACKGROUND
The father is a professional. He was born in 1969 and is 52 years old. The mother is also a professional. The mother was born in 1974 and is 47 years old. They work for the same employer, the Employer N though the mother has not been working for some two years. The mother has been on unpaid leave of absence since 12 October 2020. It seems the mother has not told X that she is on unpaid leave, preferring to say that she is just working from home.
These parties were in a relationship commencing in the year 2000. After a year, they started living together and 8 years later in 2009 they married in Country O. Their first child, X, was born two years later in 2011.
The parties separated in either November 2017 (according to the mother) or August 2018 (according to the father) but they remained living under the one roof. The parties are agreed that they physically separated on 6 October 2018 when the father moved out of the former matrimonial home.
In March 2018 without notice to the father, the mother changed the title of the home they owned together from joint tenants to tenants in common. The parties finalised their property settlement in 25 November 2019.
The parents divorced in February 2020.
The mother says that “I found out at the end of the relationship when I saw a text message on the respondent’s phone from a woman who later turned out to be a prostitute, that the respondent attended illegal ‘brothels’”.
The parties attended subsequent relationship counselling of some 20 sessions. During this process and through the mother viewing the father’s bank statements she says she learnt that the father had been attending upon a sex worker during the marriage. The mother says this started from around the birth of their child. . The father accepts he attended upon a sex worker but denies he attended upon “illegal brothels”. The father’s evidence is that after the birth of X, the mother did not wish to continue with their sexual relationship.
The mother’s reaction to hearing of the father’s attendance upon a sex worker was that she concluded that the father likely had a sex addiction. Because the mother requested that he do so and in an attempt to save the relationship, the father agreed to attend upon a psychologist, Ms P, who specialised in sex addiction. He saw the psychologist in January, June and August 2018. At the conclusion of these sessions, there was no evidence to confirm the mother’s suspicions that the father had a sex addiction.
The mother has said during the trial “I know that there was no assessment either way.”
The mother said in her affidavit that “notwithstanding what I considered he had was a sexual addiction and not withstanding that I thought that addiction would impact on his caring and raising of X, I did still trust him to care for X, albeit with reservations.”[5]
[5] Affidavit of 20 May 2020 at paragraph 10.
In the circumstances of this case, on 12 August 2017 when the child was aged 6, she suffered her first bout of a urinary tract infection. She has continued to experience UTIs on and off over the subsequent years.
In order to help X cope with the transition of her parents living separately in October 2018 the parents and then X attended upon a counsellor, Ms Q, at an organisation called Company R for counselling. It seems that both parents thought X was benefiting from this counselling
By agreement between themselves, the parties made arrangements to have X spend liberal time with each party after separation. Such time slowly built up starting at 4 nights, then in term 1 in 2019 X moved to five nights a fortnight with the father.
In early 2019 the father also commenced a relationship with his current partner Ms S.
In term 2 in 2019 the X spent six nights a fortnight with the father. This was all by mutual agreement. This arrangement was in place up until February 2020.
In late April and May 2019 the mother made allegations of domestic violence against the father. This arose from a request by the Father at short notice to attend upon the jointly owned home. Also a separate request prior to his attendance was made by the Father to attend at their home to collect some personal goods. It seems that after these two visits the Mother had the locks changed.
In July 2019 the mother made further allegations of domestic violence this time occurring in the workplace. This involved the Father walking past the Mother’s desk and separate allegations that he was checking the car park to see if her car was at work. The mother said she had to hide under her desk to avoid the father.
Shortly after that on 8 August 2019, the mother took X to a doctor after she allegedly returned home from spending time with the father (she was spending 5-6 days a fortnight with the Father at that time) complaining that she had an “itchy vagina.” The notes of that attendance indicate that the mother “expressed concern that on multiple occasions over the last six months, when the patient has returned home from time spent at father’s place that she has an itchy vagina.”[6] The child was asked questions by the general practitioner and denied that anyone had touched her inappropriately.
[6] Mother’s annexure page 68.
The doctor’s notes continue that:
The patient has known sensitive skin. When at dad’s she uses soap on a washer, and when at mum’s there is no soap. Showers at both places. Vaginal inspection. No urinary tract infection found.
On 30 September 2019 the child spent a week’s holiday with the father and they travelled to the paternal grandparent’s home in City M.
The next day on 1 October 2019, the mother started telephoning the child on a daily basis. The mother said in her affidavit[7] that she has “recordings of these telephone conversations.” These were never produced and it was never explained why she had recorded these phone calls. The mother said at the time of her telephone call she was concerned that X had a UTI or similar vaginal inflammation as she had previously had one on 8 August 2019. The mother said over the next two days she and the child discussed the child’s sore vagina and the mother asked her to go to the doctor but the child said she did not want to go. The mother says that the child also told her she had a headache, then had a big sleep and that her vagina was burning and hurting and that there was blood in her undies. The child also said it hurt when she did a wee. The mother said during these conversations that she raised with the child whether or not the child was having a period. At the time X was 8 years and four months old.
[7] Affidavit of 29 May 2020 at paragraph 25.
The next day on 3 October 2019 the mother spoke with the child again and the child told the mother that she did not want to go to the doctor, as her mother had told her to do.
On 6 October 2019 the mother says when she spoke to X again about going to the doctor that X became embarrassed and she refused to go, even when pressed by the mother. I note when the mother was subsequently recounting this event to the child’s counsellor, that the counsellor wrote in her notes that the mother asked “the father to take her to the GP but he refused.”[8]This comment to the counsellor is quite a departure from the explanation provided in the mother’s affidavit material which clearly states the child did not wish to go to the doctor despite several requests by the mother for her to do so. Also the child did not wish to talk about the continuing topic of burning wee and blood in her urine.
[8] Notes from V Counsellors at page 14.
Father’s barber shop – illegal brothel
A couple of months later on 7 January 2020, the father took X with him when he went to a have a haircut at a barber shop known as the “T Shop” at D Street, Suburb J. The address of this barber is D Street. The barbershop is next door to a business called U Clinic at D Street.
The father said he had attended the T Shop for four or five years. He described he had taken X with him on occasion and that she sat in a waiting chair right in front of him when he had his hair cut and she watched ABC kids on the father’s phone for the 30 minutes of the haircut. The father recalled there had once been an occasion when the father had been in the barber shop when X walked passed and waved to her father who was sitting in the barber’s chair.
On 10 February 2020, the mother alleged that she and “X walked past a premises located at D Street, named “U Clinic”. This premises, amongst others, were the subject of discussions during marriage counselling.[9]
[9] Affidavit of mother of 29 May 2020 at paragraph 11.
The mother made allegations that “when we walked past the premises, X pointed out the premises to me and stated that the Applicant liked to go there for a massage and that “there were nice ladies there”. X told me that she was taken into the premises by the Applicant and that she waited there whilst the Applicant took his massage. X described it as going “on a play date” there and noted she received a lollipop from nice lady gave there.”^[10]
[10] Affidavit of mother of 29 May 2020 at paragraph 12.
The evidence shows that later the mother explained in an email (which forms part of the Police records) that X told the mother she did not want to wait outside the premises as she said she was worried about stranger danger.[11] This seems to suggest that the child would have waited outside, but for the fact of “stranger danger.”
[11] Tender bundle of Police records at page 7.
The mother subsequently gave instructions to her lawyers to advise the father that she was ceasing all time between X and the father.
On 26 February 2020 the mother’s solicitors wrote to the father and provided their client’s instructions surrounding the incident. In addition to pointing to the premises saying her father liked to go there for a massage, the father was advised,
we are instructed that it appears you have taken [X] into the premises and she has been waiting for you while you took a massage. We are instructed that [X] said to our client that sometimes people would pick her up for a play date and she was aware of stranger danger and did not want to wait outside the premises. The letter stated we are instructed that the arrangements whereby you have this time with [X] are to come to an end and your rights to spend that time that you spend with her are going to finish, for the very obvious danger that is being created for [X]’s safety and wellbeing. The letter also states that it seems to our client that you have some form of an addiction. Our client is not acting against you in any vindictive manner. Safety is her only concern.
The letter to the father is quite instructive as to the mother’s thinking. It shows her continuing belief that the father has a sex addiction and that this addiction has caused him to take his eight-year-old daughter to a brothel and wait whilst he obtains services.
The letter continues that,
the mother will reconsider her position if the father will commit to some form of treatment or counselling for this addictive behaviour that leads you to take your daughter with you to this most inappropriate location during the time you have been spent with her. Our client suggests that you admit yourself to a clinic or facility that treats addition[sic] and thereafter continue regular counselling or other treatment recommended by a qualified person. In due course, should a recognised counsellor or qualified person dealing with such addictions give a report or assessment that your behaviour has improved and you will not engage in such behaviour again while in company with [X], this can be revisited.
Under the heading “NOTICE” the father is told that “you must not approach our client about this nor should you, in any manner at all, try to approach X. If this notice results in a backlash from you of any sort our client will not hesitate to apply for a Protection Order on behalf of X under the Domestic and Family Violence Protection Act 2012, for the reasons outlined above.”The mother did not ever attempt to talk with the father directly about what the child allegedly told her in order to find out perhaps an alternate innocent explanation. And this is at a time when the child was spending 6 nights a week with the father. The mother went straight to her lawyers and had a direction issued that the father must not talk to the child or mother about the alleged visit to the brothel and that any backlash by him would result in an application for a Domestic Violence Order.
In concluding the letter it stated:
our client seeks an acknowledgment from you of the contents of this email and a response indicating that you agree to immediately undertake some course of treatment in order to deal with the issues raised in this email, so that there can be the eventual possibility of you having parental contact again with [X].[12]
[12] Annexure B of the Affidavit of the father 9 April 2020.
The mother also decided that she would go up to the child’s school and tell the Principal that she believed the father had taken X to a brothel. Naturally this resulted in the Principal having to refer the mother’s report on to the statutory authorities which lead to the child being subsequently interviewed by Police Officers. The mother ultimately through her solicitors reported the matter to the Police.
Mother suspends all time between child and father
The mother, relying on what she says the child said, suspended the child’s time with the father on 26 February 2020.
By 2 March 2020 it is clear that the mother had been making inquiries along the lines of W Counsellors and other similar counsellors to take X to. This is gleaned from an email response to her inquiry, from a counsellor at Company R, where the child had been attending.
That counsellor commenced her email to the Mother by saying:
hi [Ms Parslow] – I spoke to a colleague who has been connected with [W Counsellors] for many years she agreed that at this stage there are several red flags but without a disclosure there really is no evidence to work with. There are also many ethical and legal considerations here which need to be taken into account. I was given the name of a private psychologist [Ms Y] at [V Counsellors] who has worked in this space for a long time and she would be able to provide a report on any sessional work she does with [X]. [W Counsellors] was nominated as an alternative contact able to refer you to a psychologist who works in the area of child protection.
The email concluded “the challenge is to be able to find someone that X connects with in a safe space where she would feel comfortable to disclose any abuse without any coercion or influencing in a way that could be legally challenge.” The Mother is informed that there is no disclosure and there is no evidence to work with.
Subsequently the name of Ms Y was put forward seemingly by the mother, as an appropriate counsellor to take the child to. However V Counsellors practice manager wrote regarding the referral to Ms Y stating that this practitioner was not able to see children as her capacity and “area of specialty is within adult psychological intervention.”The practice manager wrote that “we understand that the purpose of seeking an alternative therapist is to provide a neutral experience of therapy and contextual understanding for both parents in the treatment process.” The name of Ms F was put forward by the practice manager as an alternate counsellor being more appropriate as a therapist for X. This practitioner is the counsellor agreed to by the father who had accepted the recommendation for counsellor as being an individual providing independent counselling and that the information would be confidential to X.
On 9 March 2020, Queensland Police attended upon the mother and took a statement. The Police records note that at that time the mother had not informed child safety and she has not approached the courts for further action or approached the father. The Police record records “I asked if she had been to child safety and she said ‘No.’”
The Police record in their notes that the mother said “X disclosed to her that her father had taken her into a brothel” and that “in a meeting this morning Ms Parslow informed me that her daughter had alleged to her that her father Mr Jamain had taken her to a brothel. In the meeting Ms Parslow informed me that her legal team had sent a legal letter prohibiting her father from seeing her daughter.”
On 11 March 2020 X was interviewed by Police at Suburb Z Police Station. X stated directly she had never been inside the massage parlour (U Shop) and she had not been exposed to any kind of indecent act. The Police conclusion was that “there is no offence made out on the basis of the facts and therefore this matter is unfounded.”
The parents attended Family Dispute resolution in March 2020. No progress was made and the mother continued to ensure that the child spent no time with the father.
On 20 March 2020 the mother by then knowing the Police outcome organises to take the child to counselling at V Counsellors. The mother informs the counsellor of her allegations. The counselling records show that the mother reported that about two weeks ago,
[X] had returned from her fathers and told mother that he had taken her to a massage place, she was able to describe it, reported he liked the way the ladies massaged there and he wanted to buy one of them chocolates. The mother was aware this place was actually a brothel[13]. She informed the school of the incident and that she planned to stop contact with the father. The school made a safety notification and then the Police followed it up. At the Police interview [X] denied that she had been taken there. She did tell them the father had gone there. The father has denied taking her to the brothel and that he has not gone himself either.
[13] The father denies the mother’s evidence that this place was discussed or came up during counselling.
The clinical note also records that
the father has refused to voluntarily attend a sex addiction program and will not do supervised visitation as he thinks this is an admission of guilt. …Mother is worried the father has groomed her to not get her in trouble, says the mother is trying to stop him having contact[14] father said because of his work commitments he has not been able to take [X] to [Ms F] and that the mother has taken and that the costs of this counselling have been shared equally.
[14] Exhibit “ICL 1” at page 13 and 14.
It seems to me that when the father agreed to Ms F and wrote about any positives for X in terms of having an independent professional to talk to X that is not reportable[15] he may not have been aware of the source of the original referral arising from the mother’s enquiries with organisations such as W Counsellors (or another counsellor working in this space), that mother has approached the counselling by providing commentary to Ms F of him sexually abusing the child, and that the mother is trying to stop contact between him and the child.
[15] Affidavit filed 11 February 2022 at paragraph 13.

Also noted in the clinical note of 24 March 2020, is reference to the child spending time with the father and travelling to City M. The counsellor’s notes record the child ringing the mother to say she thinks she has her period and having blood in her undies and that “the mother asked the father to take her to the GP but he refused.” Also recorded regarding the child is “X is very smart, articulate, easily distracted, dramatic in her actions and how she talks.”Also the note records that the mother said she has, “been telling her [the child] that father made a bad decision and mother wants to keep you safe.”
The record also shows that the “mother would like to have space for X to disclose any abuse that may have happened. Mother wants to keep X safe and thinks she needs to stop any more contact with the father.” It is clear the mother is hoping for a disclosure.
By 9 April 2020 the father, filed an Initiating Application seeking resumption of his previous time with the child which was 6 nights a week. At this time, the father had not seen X since the mother suspended time on 26 February 2020.
On 30 April 2020, more than two months after the mother suspended the child’s time with the father completely, the mother had to take X to the doctor again for symptoms of having blood in her urine and urine frequency. The mother also decided she would discuss with the doctor her concerns about the father taking X to a brothel. X was spoken to by the doctor and denied ever being touched or there being any physical activity, when asked by the doctor.
The mother filed a Response to the father’s application on 29 May 2020 seeking sole parental responsibility, child live with the mother, leave to amend her application after the release of the Family Report and a sexual recidivism report. On an interim basis the mother sought sole parental responsibility, child spend time with father supervised every second Saturday for two hours, a sexual recidivism report and the Family Report. The mother claimed that supervised time was necessary given there was an unacceptable risk. By this time the mother knows that a counsellor has told her that she has no evidence to support her allegations. Also that the Police have found her complaint to be unfounded and that X told the Police she had never been inside the massage parlour and she had not been exposed to any kind of indecent act.
On 17 June 2020 an interim hearing was held by Judge Howard (as he then was). His Honour made orders that X was to spend time with the father every Saturday and Sunday from 9am to 4pm unsupervised. X was also to be assessed by a paediatrician regarding skin irritations and UTI type symptoms, that the mother was to undertake counselling regarding her anxiety and stress,[16] that the father was not to take X to any massage parlours, hairdressing salons or other venue where the child will not be fully supervised by him, and that a Family Report be prepared.
[16] Order 7 of the Order of 17 June 2020.
In June 2020 the mother attended a workplace relation mediation.
The Family Report was released in August 2020 by Mr G, who indicated in his report that the mother had stated: “I’m concerned the father is a direct sexual risk to X. There’s been an inflamed vagina and the number of UTIs.”
After speaking with the mother, the Report Writer says he did form an increasingly confident opinion that the mother was not fully of the belief that the father had sexually abused their daughter. This was based primarily on the fact that the mother made comments to the effect that she was hoping against hope that sexual abuse had not occurred which the mother made to Mr G. Concerns were expressed about the lack of trust between the parents and suggestions for the parties to attend family therapy as a way of improving this mistrust.
In line with a recommendation of Mr G, the ICL requested that the parties attend upon Ms H for family therapy. The mother attended for five sessions and the father attended for three sessions. Ms H has provided a report to the Court which concludes that the mother has to make a seismic shift in her thinking, attitudes, and beliefs towards the father. She was hopeful that the father’s positive, loving, respectful, and caring parenting of X will persuade the mother to shift her feelings around X spending time with the father.
On 5 February 2021 X was again interviewed by Queensland Police this time at her school. The mother says she received a call from Queensland Police and was advised of the interview at school. X told them that her soreness was caused by getting sand in her vagina after surfing. The mother took the child to the doctor that very afternoon and X underwent physical examination. The female doctor who did the consultation said she located toilet paper in the creases of X’s vagina and indicated this may be due to over wiping.
As can be seen in the mother’s affidavit of 15 September 2021, X has had various appointments with the doctor involving burning urine and itchy rashes on the side of her leg or outside her vagina. On 26 April 2021 X showed her mother an itchy rash on her leg near her vagina, which she thought was from her swimmers again. This resulted in another visit to the doctor when the rash did not resolve and the prescription for a topical cream which cleared up the rash.
The mother states in her affidavit that on 13 April 2021 the child’s counsellor Ms F told the mother that she had diagnosed X’s hair pulling as Trichotillomania. I am not aware of the qualifications of Ms F to make this diagnosis. Ms F is a mental health occupational therapist and holds no formal qualifications as a psychologist and she is not entitled to use the protected title of psychologist. Ms F is not a paediatric doctor or paediatrician. Research of the ICL shows she has a Diploma in Family Therapy. Ms F has not observed the usual protocols about conflicts of interest in her account in a counselling role. The mother asked and Ms F agreed to have personal counselling herself with X’s counsellor. The mother asked and Ms F agreed for the mother to have joint counselling with the child and Ms F. And Ms F agreed to be the child’s counsellor.
On 10 May 2021 the child was again complaining of a rash and some burning and again the doctor recommended application of cream and swabbing of X’s vagina.
Problems with X experiencing soreness and the need for creams occurred again in June 2021.
By December 2021 X was having blood tests which seem to indicate coeliac disease and some issues with hair pulling. There are no further vaginal inflammations.
As of 11 February 2022 there now appears to be a diagnosis of coeliac disease and X’s diet has been adjusted accordingly.
THE EVIDENCE
There are two primary considerations contained in section 60CC(2) of the Family Law Act 1975 (Cth):
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The legislation requires that I give the most weight to the second of the primary considerations and under this heading I will address the Family Report Writer’s evidence, the allegations made by the mother, and the cross examination of the father.
Primary consideration: the need to protect the child from abuse, neglect, or family violence (section 60CC(2)(b))
Family Report Writer’s evidence – Mr G
Mr G was required for cross examination. He confirmed that his assessment and tests led him to the belief that their father was not a risk to the child and further that he formed the opinion that the mother was not fully of the belief that the father had sexually abused X. He said this arose because of the mother’s statements to him about her hoping against hope that this had not occurred. At paragraph 50 the mother told Mr G “I am hoping that Mr Jamain has never touched X sexually. I am hoping against hope” and added “in hindsight I should have raised my concerns directly with the Police instead of the way it happened. I don’t think that has worked best way for X.” At the trial some nineteen months later, however, the mother was unequivocal in her stated beliefs about the father.
At the time he wrote his report, Mr G recommended a continuation of the current child arrangements (which had been six days a fortnight) however identified a need for an additional therapeutic role (parenting coach/mentor) to address the concerns he has raised in the report about the mistrust and dynamics between the parents. However, he subsequently moved away from that recommendation at the trial, noting the evidence of the failed attempt at such family therapy with Ms H. Mr G replied that having read the report of Ms H, a very experienced practitioner, that it did not give him much hope about any further initiatives involving both parents such as for instance a parenting coordinator or something more formalised. Mr G said he is not sure how many bites of the cherry are going to happen and the whole concept “seems to have ran aground.”
He commented that poor parental communication and residual mistrust resulted in the child being interviewed by Police and this could have been averted if verbal reports by the child to the mother could have been clarified by the mother with the father and therefore dispelled any concerns that the mother held about what the child had allegedly said.
The father’s Counsel asked whether he still recommends this arrangement if the Court finds the father is not a risk to X and the mother still holds a firm belief that X is at risk. Mr G stated that this was really a hypothetical question and that he was always careful about making too many recommendations that might seriously impact on the already fragile parenting situation.
He continued that X has grown up and asserted herself as a young woman and formed a positive relationship with her dad. Although he has not had the benefit of speaking with X for probably coming up for two years and was not sure where she is in that process but he said he “was not inclined to be recommending any changes to shared care.” [17]
[17] Transcript at page 56, line 25 onwards.
When asked if the mother had the capacity to change her beliefs Mr G deferred to the various sessions with Ms H and noted that Ms H didn’t think so.
Whilst noting the reference in the Family Report to the high level of mistrust between the parties, counsel for the father asked whether, in the event there remains an absence of trust, the parents could still support the child’s relationship with the other parent. Mr G said this is a difficult question and that it may not be optimum co-parenting arrangements, and it will probably struggle to be a parallel parenting arrangement, but at the moment it’s the best that X has.
Having been updated with all of the recent material Mr G said he could see that objective testing did highlight the very real possibility that the mother had a major depressive episode. He hoped that this would have been targeted and that this might explain some things. Mr G considered that the mother appeared more anxious than depressed and without further assessment he was not sure how that extends or loads on to optimum parenting.
Mr G strongly recommended independent and confidential counselling remain in place for X and that it was a typical baseline protocol to keep counselling confidential and that over time a good practitioner would help X process things that she ordinarily might not want to say to her mother or her father.
There was no difficulty anticipated with X having the ability to transition to an equal time arrangement with her father, however, Mr G anticipated that it would be more difficult for X to transition to primarily living with the father. He was uncertain as to the impact such a shift might have on the mother which led him to have doubts about how well such a transition would occur for the child to the father’s primary care.
Mr G commented that he considered that the father has demonstrated a lot of resilience and patience throughout this litigation. I agree. He is not sure, without further testing, how well the mother would cope in any major transition involving the child moving to live with the father primarily.
The question was asked about the effect upon a child constantly hearing that something is true when it isn't. Mr G said that this all depended on the age development temperament and learning history of the child and, in relation to X, he found that notwithstanding the differences between the parents, she was able to talk about how the parents had insulated her from some of the more extreme parts of their separation that had left her confused and not particularly helpful.
He continued that if it's weaponised or it becomes something proactive from one parent to the other then it could of course have serious damage to a child. Typically the child will end up drifting to one parent and rejecting the other as they get older but that he was not sure what that trajectory would be with X. At the time of the assessment, this was not an excessive thing that he needed to incorporate in his analysis.
Importantly I note that there is no direct evidence of the mother telling the child about her beliefs or doing this constantly. There is evidence that when the child was not seeing the father for months, at that time the mother told the child that the reason she was not seeing the father was that the father had made some bad choices. The mother told the child she had to keep her safe. I have no evidence of what discussions took place at counselling in the presence of the child.
When asked, given the benefit of viewing updated material, whether there were any supports that could be suggested that would assist the parties moving forward, Mr G considered that the mother individually should seek support with someone to address some of these issues. He did not support joint counselling.
And commenting on the necessity for a confidential forum for X, Mr G considered X's own counselling would be managed as a confidential and individual forum where the mother and father do not attend. He said that “the abiding principle would be to insulate the child so that her counselling doesn't become another dialogue in the mother/child household and that X just needs a place where she can voice her own frustrations and she certainly presented as needing that when I interviewed her for the report.”
When questioned by Mr Page for the mother about X’s confusion, Mr G explained that she was able to articulate the frustration around the fact that she experienced each parent as individually positive, yet they were worlds apart and that was a source of distress for her and she could see that there would be a better situation for her and for everybody if that wasn’t the case.
In terms of discussing the impasse between the parents as referred to in his Report, Mr G said that at the time he wrote his Report the parents’ parenting had not yet evolved even to what might be called parallel parenting so that each took a primary role while the child was in their household and that the child was able to have the benefit of those two very grounded experiences where the parents are very aware of her.
Generally I found the evidence of Mr G very helpful though I am not as optimistic in relation to the mother not believing her own conclusions as there was no sign of this from the mother in the witness box. The mother has a firmly held view about the father being a risk to the child. Mr G was hopeful that the mother would be getting psychological or psychiatrist support for her depression and also anxiety and I am satisfied that it is very important for her to continue to do so as she has not made much progress it would seem since she had been interviewed two years ago.
The father’s evidence
During the cross-examination of the father, it was notable that by the end of the cross‑examination, all of the allegations by the mother against the father in terms of his alleged sexual deviance in taking the child to a brothel, grooming her, drugging her, and likely being responsible for sexual interference resulting in the child having irritations and UTIs, were not put to the father by the mother’s counsel. Having said that, there were no indications to the Court that the mother’s case involving her allegations were not being pressed.
The father however was asked in depth questions by counsel for the mother about his relationship with his new partner. The father quietly but firmly indicated that he had not introduced the child to his partner. Further criticism then followed that he ought to have introduced the child by now. The father said that his partner, Ms S, did not live in his house, and that he and Ms S had a relationship for around two years and 10 months. Questions were then asked about where the partner lived and whether she had children, how old were they and did Ms S have contact with her own children. I gathered these questions were a fact-finding mission at the instructions of the mother. Ms S’s children are 17 and 19. It was raised on the mother’s instructions, that one of the children aged 17 has anxiety. This was so. Nothing about this child having anxiety (as does the mother) raise any concerns for the Court regarding X’s safety as was implied by the nature of the questioning. The questioning led nowhere.
The mother is intensely interested in finding out details of the father’s life to the point where I considered the questioning was unnecessarily intrusive including questions about whether or not the father’s partner had a child who suffered depression.
I consider that the father’s decision not to introduce his partner to the child, made in light of the mother’s concerns about introducing partners to the child (and that concern is still seen in her current application), was a very sensible decision. However, in keeping with the mother’s hypercritical view of the father, it was clear that whatever the father did in regard to a new partner, represented a problem for the mother. The father seems to be acutely aware of the mother’s hypersensitivities around particular issues.
The father was also asked by the mother’s counsel about his alleged proposal to relocate. The father replied that he is not intending to relocate other than he would like to at some point perhaps change his current house and move to a different suburb but he also was aware of that he could not afford in the current market to buy where he might like to buy. There was no suggestion that the father was about to relocate anywhere, despite allegations from the mother to the contrary. The father indicated that he was geographically only minutes away from the mother and that he had no intention of trying to change the child’s school, and he agreed with the future orders sought by the mother as to the child’s schooling.
A line of questioning was directed to the father about the fact that the child would be better placed remaining primarily with the mother where the child has stability, where she has school and friends. Because the father wanted to have a week-on week-off arrangement, it was suggested to him by counsel for the mother that this meant that the father did not want the child to have a home.
The father confidently explained the value to the child of week-on week-off and rejected all suggestions that the child would have no home, saying instead that “she would have two homes.” He indicated he wished to share half the holidays and that he wanted to be flexible. He said he could take leave when X had holidays if he wanted to. He was flexible about whether it was first half or second half.
The father disagreed that the proposal of 10 days with the mother and four days with him was a proposal that would suit the child. He indicated that he did speak to the child every day, but that was not the same as residing and spending time in the physical company of the child. He stated that X also needs to have time with her mother. Mr Page QC suggested to the father that he was taking the child away from her friends and mother in his decision to seek a week-on week-off arrangement.

I consider it extremely important that the child has the benefit of the father’s good parenting, child focused and measured approach to keep some more balance in her life. I am aware of the submission of the ICL that the child has lived all her life with the mother.
Likely effect of changes to the child’s circumstances (s60CC(3)(d))
In relation to the proposal of the child living primarily with the mother these orders will likely see the child not having the benefit of the father’s parenting and presence in her life to any great extent. I consider that the father’s activities and engagement with the child and his measured and calm approach to his parenting will be a boost and add much more richness to the child’s life as he is a completely different personality and individual than the mother. The mother’s proposal provides for the father to have only minimal time and I am not satisfied that there is sufficient time in her proposals to have the effect of the father counterbalancing the mother’s anxious demeanour, behaviour and influence upon the child. There are already signs that the child is becoming anxious and I accept that she has a much quieter life with her mother and she is no doubt looking for more activity and engagement with others than is provided for in the mother’s lifestyle.
As to the father’s proposal for primary residence, given the length of the time the child has lived with the mother, and the child’s close association with the mother, I consider it will be a significant change and upheaval for the child to have her time with the mother reduced as proposed by the father. The father’s remedy to the mother making what amounted to false allegations about him is to have the child living with him. I agree that there needs to be a significant impediment for the mother to cease making unfounded allegations against the father of both family violence and sexual abuse allegations. The father’s proposal may or may not result in the mother changing her conduct. As Mr G said: it is speculative. A less radical change would be in the child’s best interests if it achieved the outcome which the father is trying to achieve.
Practical difficulties and/or expense of child spending time with either parent (s60CC(3)(e))
There are no issues related to any difficulties in the child travelling between the parties’ homes.
There was no evidence led about any issues maintaining the child.
As to whether each party has taken up the time available to spend with the child, the father has been diligent in spending time with the child and wishing to spend more time. The period of months that he did not spend with the child in 2020 was of the mother’s doing.
Capacity to parent and the parents’ the attitude to the child, and to the responsibilities of parenthood (s60CC(3)(f) and (i))
In looking at the parenting capacity and attitude of each party in relation to parenting, each parent has the relevant capacity to care for the child on a day-to-day basis.
The mother’s counsel, Mr Page QC, referred to the report of Ms AD, who provided an affidavit on behalf of the mother, which says she is confident that the mother has the capacity as a stable and loving parent and is more than capable of meeting the child’s emotional, intellectual, and developmental, needs and providing a stable and loving environment for X.
This sounds like a statement prepared for the trial, and nothing less than I would expect from the mother’s own counsellor who has likely not read any of the material in this matter nor is she aware of all of the evidence. She is supporting her own client.
In general I agree that the mother and father are both loving parents. I consider that the father is more than capable of meeting the child’s emotional, intellectual and developmental needs and providing a stable and loving environment for X. Generally, the mother has been doing this, however, I have reservations regarding the mother’s capacity to understand the child’s emotional needs given that some of her parenting has had a very negative consequence on X and left her in a confused position not understanding why she’s not seeing her father.
Very importantly, the mother does not show insight into how X has been experiencing the mother’s ongoing investigative conduct which resulted in X being repeatedly presented to doctors, counsellors and the Police to be questioned or examined about possible sexual abuse by the father. Simultaneously the mother has ignored the outcomes of these investigations which do not accord with her preconceived strong views about the father. I place significant weight on this issue.
I am also very troubled about the mother’s readiness to completely suspend the child’s time with the father when X had been spending six nights a fortnight with him. I agree with Mr G that if the mother had simply directly sought clarification from the father with whom she was co-parenting instead of escalating her suspicions to the level of a crisis, the child would have been spared much distress.
The mother’s tendency to escalate the child’s medical conditions to somehow be tracked back to sex abuse by the father is a significant, negative, and potentially damaging, aspect of the mother’s capacity to parent. I give significant weight to this issue.
The mother has taken the child for continual assessment for urinary tract infections, and suggesting to the child she needs to go to the doctor to the point where the child is telling the mother she is too embarrassed and she does not want to go. The father is deeply concerned about this conduct of the mother and so am I. I consider it to be a significant deficit in her capacity to parent and one which is directly affecting the child.
More recently the mother regards the child as having trichotillomania and notes that the underlying cause has not been established and she has stated in her affidavit that further investigations as to the cause are required. The mother adds that the symptoms only manifested after X resumed some contact with the father (after the Court Order dated 17 June 2020).[25] It should be noted that this diagnosis was apparently made by the child’s counsellor[26] who is not a paediatrician or otherwise qualified to make such a diagnosis.
[25] Mother’s Affidavit of 15 September 2021 at paragraph 32.
[26] Who is not a psychologist or social worker.
I am troubled that the mother’s level of anxiety is affecting the child. I note that when X was attending Ms S on 30 March 2022 when the child had not spent time with the father for over a month and was in the sole care of the mother, that the mother reported that X was so anxious that she had a sore tummy and had woken up shaking and had vomited the night before. The mother has refused to acknowledge that any of X’s anxiety at that time could have been caused by the complete absence of the father in her life given the mother was preventing any contact between the child and father.
Maturity, sex, lifestyle, and background of the child and/or parents (s60CC(3)(g))
I have nothing to add under this section.
Whether the child and/or parents are Aboriginal child or a Torres Strait Islander (s60CC(3)(h))
Section 60CC(3)(h) does not apply.
Any family violence involving the child and/or member of child’s family (s60CC(3)(j) and (k))
There have been no Domestic Violence Orders issued between these parties though there have been various threats by the mother through her lawyers to the father that they will do this unless he complies with the mother’s requests. The allegations of family violence in this matter have been previously dealt with under the second of the primary considerations (appearing elsewhere in this judgment).
Whether it would be preferable to make orders least likely to lead to further proceeding (s60CC(3)(l))
I am satisfied that this litigation must come to an end and that importantly the mother’s expressed desire for the investigation to continue is misplaced. As mentioned elsewhere in this judgment I have taken the time to take the mother’s case as she has presented it throughout the trial and made findings accordingly.
EQUAL SHARED PARENTAL RESPONSIBILITY
Each of the parties have asked for an order for equal shared parental responsibility and I accept that the presumption of equal shared parental responsibility has not been rebutted by any finding of abuse or family violence on the father’s part.
There is disagreement about the caveat the father wishes to apply to allow him to have sole decision making in relation to matters of health in the event that the parents disagree. The father seeks an order with a restriction as to decisions relating to the child’s health which will include all aspects of the child’s health, including mental health. He is prepared to discuss issues of health with the mother, but wishes to have the ability to make the final determination in the event of disagreement.
Given the mother’s conduct throughout these two years of the litigation and her, at times, quite manipulative behaviour in terms of the strategies she has used to perpetuate her strongly held views that the father has sexually abused the child, I am satisfied that the mother lacks the appropriate parental capacity to be able to make sensible decisions going forward about the child’s health. I consider her decisions are affected by her strongly held beliefs about the father which has played out in all of her allegations.
I consider it is important that doctors receive unbiased medical information about the child and that the mother’s irrational beliefs are not introduced as part of illnesses suffered by the child. The false beliefs and fears expressed by the mother at the trial about the child’s UTIs or irritations being caused by sexual abuse cannot continue. The mother’s tendency to escalate the child’s perceived medical problems needs to have some filter. The alleged problems with the child pulling out or twirling her hair have been explained by the mother to have some cause associated with the child going to the father’s. Her continued perception that the child’s medical matters are somehow related to the father is a significant barrier to her exercising appropriate parental responsibility and a strong factor in support of the father’s application for him to have the final say on medical matters. It is to be hoped that following on from these proceedings the mother will take notice of the findings of the Court that the father has not engaged in any sexual abuse of the child and also that he does not represent an unacceptable risk to the child. There is however no certainty the mother will do this.
I have not been persuaded by the submission made on behalf of the mother that she understands the child is not at unacceptable risk with the father as was submitted by her counsel. Submissions should be based on the evidence.
I intend to make the order for equal shared parental responsibility between the parents save and except that the father is to have the sole decision making authority in relation to health matters being all medical and mental health matters pertaining to the child.
I have every confidence that the father has the capacity to take account of the mother’s views (which he said is best achieved by the parties having written communication), but where they differ, I am satisfied he will make decisions in a child-focused and sensible manner in relation to all health matters relating to the child (physical and psychological). I consider that this limitation on the mother’s parental responsibility is essential in ensuring that the mother’s intrusive and quite harmful behaviour in relation to unnecessary medical intervention and subsequent Police inquiries does not occur into the future.
I consider the measured and child focused attitude of the father must prevail in medical matters associated with the child.
EVALUATION
Having carefully reviewed all of the evidence and the competing proposals I am satisfied that:
(c)The father does not represent an unacceptable risk to the child;
(d)The allegation by the mother that the father has sexually abused the child (including grooming and drugging the child) are without foundation;
(e)The allegation by the mother that the father took the child to a brothel is rejected and without foundation;
(f)The mother’s allegations of family violence against the father are without foundation and the father has not committed any act of family violence against the mother in their former home, at the child’s school, in their joint workplace, or elsewhere.
With those findings in mind, and given I have made orders for equal shared parental responsibility (with the father to have sole parental responsibility in relation to all health matters), I need to consider the child spending equal time with each party and if not equal, significant and substantial time.
Throughout her evidence the mother stated that she considers there is not sufficient explanation as to why X has had ongoing UTIs and irritations since around 2017 and that the cause of this needs to be determined. The mother seems quite driven in this regard.
I am unsure whether or not the mother’s anxiety has driven her to make the allegations against the father which she has pressed throughout this litigation and right to the end of the trial. If the mother does not change her attitude and conduct it is inevitable that any future living arrangements determined by the Court would reflect her continued agitation of unsubstantiated allegations and its effect on the child. That would inevitably lead to a very different set of circumstances for consideration in relation to the child’s living arrangements.
Having made findings that the child is not at any risk in the care of the father, and noting the mother’s firm beliefs to the contrary, the father’s proposal for the child to live with him primarily (or even his initial application of equal time) would go some way towards ensuring that the child receives the benefit of the father’s parenting and influence on a regular basis.
In looking at the strengths of each of the proposals as to the child’s future living arrangements, I do not accept the mother’s proposal that the parents should be directed to attend upon a parenting coach and make a further endeavour to develop the skills so that they can make decisions together as was submitted on behalf of the mother. That boat has sailed as stated by Mr G and I am satisfied that there is no evidence to suggest that any more counselling is warranted.
Mr G also did not support the child living primarily with the father and considered this would likely lead to transitional difficulties and ultimately cause the child problems. The child is already a little confused about why she did not get to see her father for a long period of time and why there is ongoing conflict.
I have taken the time to carefully analyse and thoroughly review all of the evidence in this matter and I am satisfied that the mother’s allegations are without foundation. It is to be hoped that now that the Court has dealt with these allegations by making findings, that the mother will not tell the Police, doctors, counsellors, and schools, that there were no findings or that the judgment was equivocal. This is what the mother said after she requested the father to attend upon a psychologist which he did and who did not make the diagnosis that the mother was after, namely, that he had a sex addiction. The mother’s evidence at the trial about that report was to the effect that it didn’t make any conclusions either way. As can be seen, once the mother suspended the father’s time with the child in 2020 she again told him (through her solicitors’ letters) that he ought to see a specialist about his sex addiction. I consider that without findings being made in this matter regarding the mother’s allegations, that she would continue to repeat her beliefs to the Police, medical professionals including counsellors, the child school, and anywhere else that the mother considered it to be worthwhile.
I have considered the advantages and disadvantages of each proposal.
As to the father’s amended proposal that the child live with him and spend time with the mother, this is a significant change for the child and one which may involve some difficulties for the child as described by Mr G. I accept that the father makes this proposal as a genuine way of addressing the mother’s strongly held beliefs. Whilst the mother, through her counsel, submitted at the very end of the trial that she was no longer alleging the father was an unacceptable risk, there was no evidence to support that submission.
As to the mother’s proposal that the child live with her and spend very minimal time with the father as set out in her orders, I do not consider this proposal to be in the child’s best interests. There is no evidence to support the mother’s proposal that the child should spend such unnecessarily restricted time with the father given my findings and that I consider he is a loving, generous, caring and interested father. He does not represent any risk to the child. He has much to offer the child.
The question which looms large is whether the mother is prepared to make the shift necessary to alter her beliefs and feelings and attitude towards the father. The father’s proposal that the child live primarily with him is based on his concerns about the mother’s strong beliefs and assumes that ultimately the child will be at harm in the mother’s care if the mother continues to have the child be the subject of her ongoing investigations to try and prove her irrational theories. The father is perfectly entitled to be concerned about this given the evidence in this matter. The Court and the ICL are equally troubled. At present, however, there is no evidence that the child is aware of the allegations the mother has been making or that the father’s relationship with the child has been affected. The father’s relationship with the child is excellent and she clearly loves spending time with her father. There is evidence that the child is sick of her mother doing this and that it is causing her embarrassment.
The only person who represents any risk to the child is the mother. I have reservations about the mother’s capacity to parent given her strongly held, but false, beliefs about sex abuse allegations involving the father and also her distorted beliefs about what constitutes family violence.
I am troubled about the effect of the child being in the primary care of the mother given her beliefs and given her desire to approach the child’s medical matters as a form of ongoing forensic observation with a global view that the source of the child’s UTIs and similar issues are all somehow associated with the father’s conduct and her false belief that the father requires treatment for a sex addiction.
The mother’s proposal for the child to remain living with her also does not properly accommodate the child’s close and loving relationship with the father and all that he has to offer X. The mother’s proposal for three nights a fortnight is unnecessarily restrictive. There is no basis for the father to have so little involvement with X. The holidays the mother proposes are equally unnecessarily restrictive with X to spend only one whole week with the father each year and the balance of the holidays seems to be no more than three days in a block and then some day time. The basis of this restrictive application was never explained except that it seemed in line with the application she persisted with right to the point of final submissions which was that the father was sexually abusing the child. This position however was equally irrational if the mother genuinely believed what she was saying.
Mr Page QC, for the mother, advanced the position that the child should spend no more than five days with the father. This seemed to be just an arbitrary figure rather than following the legislative pathway.

I consider that the child will benefit significantly from having the father’s support, influence, lifestyle, interests and activities as a significant part of her life. I am satisfied he can provide for the child’s intellectual and emotional wellbeing. With the child in the mother’s full-time care I do not accept that the child would receive the level of parenting she is entitled to receive from the father. I am troubled about the mother’s capacity to provide for the child’s emotional wellbeing. Also my impression is that, like the mother, the child is leading a fairly solitary life whilst living with the mother.
I am very troubled at the prospect of the mother being the primary parent as I have no confidence in her overall capacity to parent. The mother is both anxious and controlling and at times devious. Her presentation in the witness box is that at times she has trouble even understanding why she is doing what she is doing in relation to pursuing the sexual abuse allegations and family violence allegations yet also saying the child should continue to spend time with the father.
The father has always been mindful of the mother’s anxiety, and it was for this reason he decided not to introduce his partner to the child. The father says about the mothers baseless allegations of domestic violence against the father that he thinks perhaps the mother has been affected by the domestic violence that a relative of hers suffered. I have noted that the father has been consistently patient and tried to accommodate the mother’s requests and anxieties and that he has shown no malice towards the mother.
I have taken account of the child living all her life with the mother and the evidence of Mr G to the effect that he did not recommend a change of residence as he considered it would be, not only hard for the mother to make this transition, but that one way or another it would be hard for the child. He considered the parenting dynamic to be in quite a delicate situation. I agree.
In terms of the child’s views and noting her age, and all of her comments together with the history of the matter before the mother started making irrational allegations against the father, it seems to me that the child was happily living in an almost shared relationship between the mother and father.
In terms of a consideration of equal time, apart from the issues which have been agitated in this judgment which centres around primarily the mother’s allegations, which the Court has dismissed as being baseless, the parties have history of having a quite liberal shared arrangement with the child and the father having up to 5 or 6 nights a fortnight. There is no evidence that this arrangement was not working well for X. I am satisfied that other than in respect of the mother’s false allegations, they have the ability to communicate effectively enough to implement an equal time arrangement. There is no impediment in terms of any geographical distance between them as they are conveniently located within a short distance of each other.
In the Court’s view, in the circumstances of this case, it is a necessary pre-condition for the mother in order to have the child live with her for any amount of time that the mother attend upon a professionally qualified counsellor to address her firmly held but false belief that the father has sexually abused the child if the child is to live with the mother for any regular time. The ICL asks the Court to make an order that the mother continue to attend upon her counsellor. In line with the authorities that it is necessary to link such an order to the best interests of the child, I consider that it is and therefore should be a condition of the child continuing to live week on week off with the mother.
I consider subject to the mother complying with the Court’s expectation that she will desist from making further baseless allegations against the father, and complying with the condition to continue to have professional assistance to change her current attitudes and beliefs about the father, that X living in an equal time arrangement would enable X to achieve her full potential in life. It enables X to have the benefit also of the father’s loving and child-focused parenting.
I am also aware that prior to the mother making the allegations referred to in this judgment, the parties appeared to be able to co-parent. At the conclusion of the trial the parties had agreed to various orders between themselves including the child’s schooling, pickup locations and the father agreed for a fixed special week each year which X will always spend with the mother and the mother’s family.
Having taken account of all of the evidence and relevant factors I consider that the proposal which best accommodates the mother’s lack of capacity as identified in this judgment and the strength in the father’s parenting, without undue upheaval for the child, and which overall is in the child’s best interests, is a week on week off arrangement. I consider that this arrangement would allow X to achieve her full potential in life. There is however a significant caveat in relation to the mother and that is that she must change her attitudes and beliefs about the father and accept the findings in this judgment. To do this, she must obtain continuing professional assistance. As I have said this issue is so important it must be a condition of the child living with the mother. This condition plus equal time with the father will hopefully ameliorate the potential risks which remain if the child lives primarily with the mother.
If the mother continues with her personal quest to find evidence to support her irrational theories I am satisfied this would have an extremely damaging effect on the child as she enters her preteen years. This litigation has taken some years and has been costly. If the mother’s behaviour persists the father must be able to return to court without the need to cross a legal threshold that there has been a significant change. It is the mother’s continuing conduct which may require the matter to return to this Court. There should be no impediment to the father having to do this. In the circumstances of this case I am satisfied that this is a necessary precaution and another step which will hopefully reinforce to the mother the importance of her to develop a trusting relationship with the father and abandon her illogical and harmful theories.
An order for an equal time arrangement will enable X to have the benefit of both her mother’s and her father’s parenting, in equal measure. I consider there are significant advantages for the child to be living with the father for one half of all of the school holidays and during the school semesters to be living in a week on week off arrangement. The special week which the parents have agreed that X will spend with the mother and her family need not be affected by this order.
In looking at the mother’s application there are a myriad of control orders or orders requiring micromanagement by the mother. I do not intend to make orders sought by the mother that there have to be discussions about any new partner that either party has or that the parties have to get permission to be able to travel a certain distance away from the child’s home. I have every confidence that each parent can make that decision. They are topics which will ultimately lead to the child being cross-examined and thus directly involved in any further disputes.
I am not prepared to make an order that the child will not be provided with her own mobile device until she commences high school. These issues are covered by the legislation in terms of the day to day decisions and the legislation provides that each parent makes those decisions when the child is in their care.
I do not intend to make orders allowing one party to attend functions and take the child to family outings in the other person’s time and that the other person is to get make up time once they are told about the function. Such an order is utterly unworkable and the mother’s counsel agreed that such orders were unworkable. I do not intend to make an order that one parent can contact X anytime, anyhow, at either a set time, or any other time. That is another order that is likely to create further litigation and contraventions and is open to unreasonable requests. If X wants to contact the other parent, I am satisfied that if it is convenient to do so the parents will organise this.
I do not intend to make orders about a restrictive condition that there is a minimum notice period when either party wishes to change the orders for a special one off occasion. Life does not always work in accordance with a restrictive minimum notice period. If either party wishes to try and alter the arrangements slightly to accommodate a special occasion they will need to give as much notice as is reasonable however sometimes with a request such as the father made to spend a few more hours with the child to take her to a musical concert does not need weeks of contemplation. Likewise I do not intend to make an order saying that the child will be supervised or not left unsupervised for any period of time unless the written consent of both parties is obtained. These decisions are made by parents individually as part of their day to day decision making provided for under the legislation. This is the sort of topic that again would invite questioning of the child as to who she was left with and ultimately directly involve the child in any dispute.
The order that the parents will agree on overnight third party care of the child and the other party must be offered first option is a controlling order sought by the mother which I do not intend to make. I consider each of the mother and father are quite capable of making arrangements for the child’s care whether done personally or with family or other persons known to them. That is a decision for each parent and does not require the approval of the other parent.
I will make usual orders for non-denigration. Each of the parties ought to be able to obtain information from schools without the necessity of the other parent providing any such information.
The father is at liberty to advise all of the child’s medical professionals including counsellors that whilst the parties can talk about medical decisions to do with the child where there is disagreement, the Orders permit the father to be able to make the final decision.
The parents agree that the child needs to have a third party to have psychological support and so too does the ICL. I will stress to the mother decisions regarding counselling or any mental health issue comes under the umbrella of long-term decisions regarding the child’s health and the final decision as to the identity of any counsellor or the nature of such counselling is to be determined by the father. There is no reason for the child to be taken to any sex abuse counselling such as W Counsellors (as had been planned by the mother). Whatever the final decision is as to who is to do the counselling. I will issue an order as sought by the ICL, which I strongly agree with, that the mother is not to engage or have any personal or professional association with the child’s counsellor. The mother’s conduct in organising to insinuate herself into the child’s counselling and also to have joint counselling with the child’s counsellor is another example of her manipulative conduct of which I am so critical. I will make it clear that Ms F is no longer considered to be a suitable person for the child to attend upon given her woeful disregard of any conflict of interest she may have.
I do not intend to make an order to the effect that either parent can give the child over-the-counter medications. These type of issues are covered by the legislation providing for each parent to have the day to day decision making in relation the child.
I do not intend to make an order that neither parent shall take the child to venues which are not age appropriate for the child to attend as seen in the ICL’s draft. There is no evidence that either parent has taken the child to an inappropriate venue. Further, this order is simply an invitation to have an argument about what is or is not age appropriate. Moreover I accept that each of the parents are quite capable of making this decision themselves whilst the child is in their care and that is part of their day to day decision making provided for under the legislation.
Generally I have adopted the basics of the draft order of the ICL, and orders sought by the father in his Initiating Application, though with drafting changes where I consider it necessary to adequately reflect the intention of the order. The mother’s draft orders are generally very controlling and involve uncalled for micromanagement.

I certify that the preceding three hundred and one (301) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis.
Dated: 1 February 2023

File number(s):	BRC 3949 of 2020
Judgment of:	JUDGE WILLIS
Date of judgment:	1 February 2023
Catchwords:	FAMILY LAW – parenting – where father seeks primary care of the child – where mother seeks father have limited time with child – where mother makes allegations that the father has sexually abused the child – where mother makes allegations the father has a sex addiction – where mother makes allegations of family/domestic violence – where child was medically examined and questioned by Police – where there is no evidence of sexual abuse – where there is no evidence of a sex addiction – where there is no evidence of family/domestic violence – where equal time is in best interests of child – where father offers measured and calm approach to parenting – where father is granted sole parental responsibility for child’s medical needs – where mother’s time with child is conditional upon her receiving psychological support to prevent further false allegations of sexual abuse and address the beliefs she presently holds about the father’s parenting capacity
Legislation:	Evidence Act (Cth) s 140 Family Law Act 1975 (Cth) Part VII, ss 60CC, 60D, 61DAA, 64(1), 65DAA(1), 65DAA(2)
Cases cited:	A v A 1998 (FLC 92-800) Briginshaw v Briginshaw (1938) 60 CLR 336 M & M [1988] HCA 68; [1988] 166 CLR 69; (1988) FLC 91-979 MRR v GR [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	301
Date of last submission/s:	20 May 2022
Date of hearing:	7-9 March 2022
Place:	Brisbane
Counsel for the Applicant:	Ms Kenny
Solicitor for the Applicant:	Insight Family Law and Mediation
Counsel for the Respondent:	Mr Page QC
Solicitor for the Respondent:	Elliott & Harvey Solicitors
Counsel for the Independent Children's Lawyer:	Mr Jones
Solicitor for the Independent Children's Lawyer:	Bridges Family Law Specialists

BRC 3949 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR JAMAIN Applicant
AND:	MS PARSLOW Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE WILLIS
DATE OF ORDER:	1 FEBRUARY 2023