Kang & Bradley - [2022] FedCFamC1F 756

Federal Circuit and Family Court of Australia
(DIVISION 1)
Kang & Bradley [2022] FedCFamC1F 756

File number: BRC 65 of 2016

Judgment of: CARTER J

Date of judgment: 3 October 2022

Catchwords: FAMILY LAW – CHILD– best interests of the child – best interest of child to live with the father – father to have sole parental responsibility for health and education – where there is poor parental communication – where there is a lack of parental co-operation – where the mother alleges the father has subjected her to sexual abuse – where the father and Independent Children’s Lawyer raise concerns about the mother’s mental health – where the parties are unable to promote a positive parenting relationship – where the father fails to promote the child’s Country B language and heritage – orders made.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 67ZC

Cases cited:
Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Oberlin & Infeld [2021] FamCAFC 66

Division: Division 1 First Instance

Number of paragraphs: 360

Date of last submissions: 28 July 2022

Date of hearing: 25 – 28 July 2022

Counsel for the Applicant: Jason Todman

Solicitor for the Applicant: Stolar Law Pty Ltd

Counsel for the Respondent: Russell Leneham

Solicitor for the Respondent: Sharma Lawyers

Counsel for the Independent Children's Lawyer: Karen Oakley

Solicitor for the Independent Children's Lawyer: Life Law Solutions
ORDERS

BRC 65 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KANG

Applicant

AND:
MR BRADLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

3 October 2022

THE COURT ORDERS THAT:
1.All prior parenting orders and parenting plans be discharged.

Parental Responsibility
2.The father have sole parental responsibility for the child X born 2012 (“the child”) in relation to the child’s health and education.
3.Prior to making a decision about any such issue, the father will:
(a)advise the mother in writing of the decision intended to be made;
(b)seek the mother's written response in relation thereto; and
(c)consider by reference to the best interest of the child, any such response from the mother prior to making any such decision.

4.As soon as practicable upon making a decision as to the exercise of parental responsibility, the father advise the mother in writing as to his decision.
5.The parties otherwise have equal shared parental responsibility for the child.

Living Arrangements
6.The child live with the father.
7.The child spend time with the mother at times agreed in writing between the parents and failing agreement:
(a)during school terms:
(i)each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday, commencing on the first weekend following the commencement of Term 4, 2022; and
(ii)each alternate week, from after school or 3.00 pm Thursday until before school or 9.00 am Friday, commencing on the second Thursday of Term 4, 2022; and
(iii)where the Monday following a weekend where the child spends time with the mother is a public holiday or pupil free day then such time shall extend to before school or 9.00 am Tuesday.

(b)during school holidays, at times agreed in writing between the parents and failing agreement on a week about basis, with changeovers to occur at 3.00 pm Friday.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Changeovers
8.On days the child is attending school, changeovers shall occur at the school.
9.Changeovers that do not occur at the child's school shall occur at Suburb C McDonald’s unless otherwise agreed in writing.

Special Occasions
10.If the child is not already in the mother’s care on Mother’s Day, then the child shall spend time with the mother on Mother’s Day from 9.00 am until the commencement of school the following Monday.
11.If the child is not already in the father’s care on Father’s Day, then the child shall spend time with the father on Father’s Day from 9.00 am until the commencement of school the following Monday.
12.On the child's birthday:
(a)if the birthday falls on a weekday, at the election of the parent whose care the child is not already in, the child shall spend time with him/her from 3.00 pm until 6.00 pm on the birthday; and
(b)if the birthday falls on a weekend, at the election of the parent whose care the child is not already in, the child shall spend time with him/her from 12.00 pm until 5.00 pm on the birthday.

13.For Christmas the child will spend time with each the mother and the father as follows:
(a)in even numbered years with the father from 9.00 am Christmas Eve to 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day to 5.00 pm Boxing Day; and
(b)in odd numbered years with the mother from 9.00 am Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 5.00 pm Boxing Day.

14.The child shall spend time with the mother from 9.00 am on one day to 5.00 pm on the following day to celebrate Lunar New Year each year, to occur on a date nominated by the mother not less than 28 days in advance.

THE COURT FURTHER ORDERS (by consent save as to the age of the child) THAT:
Overseas Travel
15.The mother and father be restrained from travelling overseas with the child until the child attains the age of 16.
16.Upon the child attaining the age of 16 the parents be permitted to travel internationally with the child, provided such travel occurs within the time the child is already spending with the travelling parent, and:
(a)either parent who wishes to travel with the child will provide the other parent 28 days written notice of intention to travel (save for any exceptional family circumstances); and
(b)the parent travelling with the child will provide the other parent at least 7 days prior to departure an itinerary of travel including contact details whilst travelling, destination details and all flight or other mode of travel details.
(c)should the mother require the passport, the father will provide such at the changeover prior to travel and the passport will be returned to the father following use by the mother at the next changeover.

17.The child’s passport, when obtained, shall be held by the father when the child is not travelling and returned to the father within 7 days of return to Australia after travel.

Airport Watch List
18.Each of MS KANG born 1979 and MR BRADLEY born 1979 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2012 from the Commonwealth of Australia, until the child attains the age of 16 in 2028.
19.IT IS REQUESTED THAT the Australian Federal Police give effect to this order by placing the name of the child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for the said period, or until the Court orders its removal.
20.Upon expiration of the period referred to in Order 18 hereof, and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Communication and Information Sharing
21.The parents communicate regarding matters relating to the care, welfare and development of the child via the Talking Parents Application.
22.During the time the child is spending time with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate the other parent or allow others to do so in the hearing or presence of the child; and
(d)not discuss matters of an adult nature, including these proceedings, with the child or in the hearing or presence of the child, and the parents shall use their best endeavours to ensure that no other person discusses matters of an adult nature with the child or in the hearing or presence of the child.

23.This order is authority for all schools and other care providers of the child to give each parent information about the child, including but not limited to records, educational progress and other school related activities, school reports, newsletters, certificates and awards obtained by the child (at the cost of the requesting parent).
24.Each parent shall keep the other parent informed of the child’s doctors, health care or other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall act as such authority.
25.Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent and this order shall act as such authority.
26.Each parent shall inform the other parent immediately in the case of emergency, hospitalisation or serious injury of the child and each parent be able visit the child in hospital if staying there.
27.Each parent is at liberty to attend any school event, interview or extra-curricular activity that a parent would normally be invited to attend.
28.The parents advise the other parent of any change of telephone number within 24 hours of such change occurring.

Provision of orders
29.Each party be permitted to provide a copy of these orders to the Queensland Police Service, the Department of Children, Youth Justice and Multicultural Affairs (Child Safety), the child’s school and any other entity engaged in the care, welfare or development of the child.
30.The mother be at liberty to provide a copy of these orders and Reasons for Judgment to her treating psychologist and psychiatrist.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 the pseudonym Kang & Bradley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction

The parties in this matter are unable to reach an agreement regarding the parenting arrangements for their one child, X born 2012, who is 10.
Regrettably, the parties have been engaged in protracted litigation regarding X, commencing in January 2016.
The current care arrangements for X during school terms are that he spends four nights each week with his father, covering each weekend, and three nights during each week with the mother. Orders to that effect were made on 29 May 2017.
Both parties modified their proposals during the trial. They were able to reach an agreement in relation to a sharing of the school holidays, time on special occasions and the exchange of information regarding X. They also agreed that a copy of the orders can be provided to Child Safety and X’s school. Additionally, they agreed that the mother is at liberty to provide a copy of my reasons for judgment to her treators. These matters were contained in a minute signed by the parties, with some additional agreements being indicated during closing submissions. The matters that are by consent are reflected in the orders that I am making this day.
The matters that remained in dispute and required the court’s determination were:
(a)the allocation of parental responsibility regarding health and education;
(a)the care arrangements for X during school terms;
(b)whether a parent could elect to have a two week block holiday with X; and
(c)at what age X would be permitted to travel overseas. The parties otherwise agreed on the orders regarding overseas travel.
The mother sought sole parental responsibility for X’s health and education. She also sought orders for an equal time arrangement during school terms. Additionally, she proposed that X be permitted to travel overseas once he has turned 12. She also sought orders that either parent be able to elect to have X for a two week block rather than time being week about during a school holiday period.
These proposals reflected a modified position adopted by the mother, who at the commencement of the trial sought that X live with her and spend alternate weekends, for three nights, with the father during school terms.
The Independent Children’s Lawyer and the father ultimately sought orders that the father have sole parental responsibility for X’s health and education. They also sought orders that X live with the father, and spend three nights per fortnight with the mother, from Friday after school to Monday before school (and to before school on Tuesday if Monday was a non-school day). They proposed overseas travel be delayed until X is 16, and opposed the mother having the opportunity for an extended two week period of holidays with X.
Background and procedural history
The mother is 42 years old, and the father 43. The father was born in Australia. The mother was born in Country B. The mother was previously married to Mr D, whom the parties referred to interchangeably. For the purposes of this judgment, I will refer to him as Mr D. The mother and Mr D were married in Country B and came to Australia in around 2005 or 2006.
The mother says she is now single. She lives with her housemate, Ms E (“Ms E”).
The father married Ms F in 2019.
The parties initially lived together as housemates, from around 2005 or 2006. At that time, the mother was still married to Mr D. The father asserted the parties commenced a de facto relationship in around 2008. The mother denied that they were ever in a de facto relationship.
The matter has a long and complex history, with each of the parties deposing to events that well preceded X’s birth, and a number of other matters that are not relevant to the issues I must now determine. For my purposes, I do not see that I need to make findings regarding each and every factual dispute. That includes whether the parties were in a de facto relationship, and if so, when that relationship started and ended. However, I do accept that the parties were in a relationship of some kind when X was conceived in early 2012, and that relationship came to an end around late 2015. Moreover, I note that the parties have entered into final property orders by consent on 16 August 2016. For the Court to have had jurisdiction to make orders, the court – and presumably the parties - must have been satisfied the parties were in a de facto relationship at some point.
The parties all urged the court to make findings regarding the mother’s allegations that the father had subjected her to sexual assaults. Findings of that nature are ancillary to the court’s obligation to make orders that are in X’s best interests. However, in this particular case it appears to me necessary to consider the allegations made. The appropriate arrangements for X are to a substantial extent, dependent on the findings I make regarding these matters.
There are a number of other disputed facts which do not seem to me to impact on what orders now meet X’s best interests. I have, generally, not included matters I consider irrelevant to what I must determine in the chronology that follows.
Mid-2010 hospital attendance
There was an incident in mid-2010 which resulted in the mother attending at the G Hospital for assessment. The mother said the father sexually assaulted her that day and she took hold of a pair of scissors to defend herself. The father denied sexually assaulting the mother and said she was threatening to harm herself with scissors.
The father called the police, who attended at the home. They spoke to the mother in another room, and suggested the father take her to G Hospital, which he did. The mother said after she returned home, she felt unable to tell Mr D about the sexual assault, as it was culturally shameful, and she was worried about whether a complaint from her about him would impact on her ability to remain in Australia.
For the reasons set out later in this judgment, I prefer the father’s evidence over the mother’s in relation to this incident.
Shortly after that, the mother said she and Mr D moved into a friend’s home for two months, and then into a property they purchased together in Suburb H. Mr D then moved to City LL in about late 2010. At the end of 2010, or in early 2011, Mr D returned to Country B and the mother has been unable to locate him since that time.
Living arrangements 2011
The father said he lived in the Suburb H home from 2010. The mother said he moved in there around mid-2011.
As best as I can tell, the mother travelled to Country B in early 2011. It is agreed the parties travelled together to Country B in around mid-2011. The mother said they were trying to find Mr D. The mother denied that the parties were in a relationship at that time. She said that all the photos of them together on that trip were carefully constructed by the father, to persuade the court the parties were in a relationship.
The father said he and the mother travelled for a holiday and to meet the mother’s family. He asserted that the parties stayed together as a couple during that trip, staying some nights in a hotel in City J and two weeks with the mother’s godparents in City K. He denied that the photos were manipulated by him. He said the mother arranged for the photos, and that she took a long time getting ready for the photos and subsequently created a hard-copy book with the photos in it.
The father’s evidence regarding the parties’ relationship and events in Country B appeared more plausible than the evidence of the mother.
It is acknowledged that upon the parties’ return to Australia, the mother was introduced to the father’s family.
Late 2011
The mother asserted the father attended her home on the evening in late 2011 and that whilst there he drugged her and sexually assaulted her whilst she was passed out. She deposed that she has no memory of the night after drinking a few sips of wine that the father poured for her, until she awoke hours later, fully dressed. The father had left the home. She said she discovered in early 2021 that she was pregnant, and she had not had sex with anyone and she surmised the father must have spiked her drink and, presumably, raped her. She said she did not report him to the police as she was afraid and had no supports. She said when she confronted the father, he tried to force her to have an abortion. She also said she told him he ought to marry her, as having the baby as a single parent is against her religion and culture.

The father asserted that the parties were, at that time, living together and in a loving relationship. He denied that he drugged the mother or sexually assaulted her. He denied that X was the product of a non-consensual sexual encounter. I note the father acknowledged the parties briefly discussed termination but both decided they wanted to keep the baby.
For reasons I will turn to shortly, I prefer the father’s evidence over the mother’s.
Early 2012
The mother asserted the father’s mother had arranged the paternal uncle Mr L’s wedding on the day X was due, meaning the father would not be present with the mother during her labour or her confinement. She said the parties had a big argument in early in which the father said he would never marry her and he tried to force her to give him a written statement that she would not seek that he pay child support once the baby was born. I note this date must be incorrect given that the hospital records indicate the incident and the mother’s attendance at City M Hospital following this argument occurred in early 2012.
In her affidavit, the mother said the father then attempted to sexually assault her, and that she picked up a pair of scissors to protect herself. She said the father pushed her, causing her to faint, and that she nearly suffered a miscarriage. In her oral evidence the mother asserted she had been knocked out and woke up in the ambulance.
The father denied all of these allegations.
The father said the parties had an argument as Mr L’s wedding was scheduled for a few weeks after X’s due date. The father was meant to be the Best Man. The father explained that the mother’s cultural tradition is that a mother remains essentially at home for the first 30 days following a baby’s birth. She did not want the father to leave the home to attend his brother’s wedding in that month.
The father said after their disagreement, he gathered up his belongings and as he walked out to the car, the mother “slowly fell to the floor”. He said this did not seem genuine, but he called an ambulance and the mother was taken to City M Hospital.
I note there was nothing in the medical material that was tendered before me that supported the mother’s assertion that her pregnancy was at risk at that time. Nor was there any material tendered before me that corroborated the mother’s assertion that she had been knocked out. Nor did she report any alleged assaults or violence perpetrated by the father during her hospital admission.
For these, and other reasons which I later set out, I prefer the father’s evidence to the mother’s.
Later in the pregnancy, the mother sent a text message to Mr L, saying that she and the father decided to “separate forever because of your wedding reason”. The lengthy text continued:
…[Mr L], I think I should let you know I really hate you and your wife after lots of things happened. My baby and me nearly were killed and you made I and [Mr Bradley] broken up. You two like murderers for me. Anyway, I never like that old big ass woman in my life, that is my rights, isn't it? Can I ask you to have some celebration dinner, with me which you need pay $300 per person? I think there are not much people can do so disgusting things in this world. In my whole life, you never care me never help me, please don't hurt my life. It really makes me and my baby vomiting.
Ok! You can ask [Mr Bradley] to go. But, please think of his family first. If he is not busy and can have enough money pay for you, it's fine. Otherwise, if makes difficulties for us, we argue more, I hate you more.
I can sacrifice all for [Mr Bradley] and my family to make us live easier and happier. If people they are kind to me, I am happy to pay 10 times back to them. But for you two, I don't want to say anything. I remember I only ask you help me once for my fish, you didn't. In my life, we are never been connected together. You only give me memories: made [Mr Bradley] break up with me and move out, I nearly lost my baby! Thank you for bad dreams whole night!
In the future, please ask people if they are easy to go that far or they are happy to pay that much for you first. If don't have so much money, please don't do so much things. Don't order or force to do something for you for anythings. She is only the queen for you, not for everybody!
(As per the original)
The mother provided no explanation for this message in her affidavit material. In her oral evidence she denied that she wrote that message. She said she thought the father sent this message to himself. I accept the father’s evidence that this text message was sent by the mother to Mr L, and that Mr L then forwarded it on to him. I note in particular the references in the text message to the baby being harmed, and the pregnancy at risk. This mirrors the allegations made by the mother in her evidence at trial.
The text message lends considerable support to the father’s evidence that the parties were in a committed relationship. It also raises concerns about the nature and magnitude of mother’s reactions and responses. It is somewhat histrionic.
Events following X’s birth
X was born in 2012. Following his birth, the mother returned to work, and the father provided primary care for X when the mother was working, for the first three months of his life.
The mother said the father chose X’s name, without her consent. She said he either forged her signature on X’s birth certificate, or he tricked her into signing it given her lack of English skills. These allegations are denied. The father said he suggested X after an historical figure, which the mother embraced. He denied that he forged her signature or deceived her in any way in relation to the birth certificate, and I accept his evidence.
The father’s brother’s wedding occurred in late 2012. The mother opposed the father attending and he acceded to her wishes. He said he did so as she was abusive towards him when he wanted to go, and threatened to harm herself.
The father said he returned to work in early 2013. He said he remained engaged in caring for X outside work hours.
In early 2013, when X was five months old, the mother deposed that the father again tried to sexually assault her. She gives no particulars of that alleged assault. She said she “got the scissors and put under my neck saying I would kill myself if he does it [sic]”.
The mother said the next day, whilst holding X, she “walked on the street and asked for help”. She said an older women then drove her to the shopping centre and the mother deliberately stole five items hoping to be caught. She said a staff member noticed her stealing and asked her to wait, but subsequently told her that the police could not attend that day, and she should present herself at the police station tomorrow. The mother said she did attend at the police station the next day, and requested to remain there. However, she said she was driven home, and subsequently stayed with a friend for two weeks. According to the Child Safety report, the mother stole approximately $4,000 worth of groceries which she said was food for her baby.
At some undisclosed time in 2013, the mother took X to Country B for about 40 days, with the father’s consent.
In late 2013 the parties attended the N Centre with X. That centre provides assistance to families requiring practical skills and confidence in parenting. The father said the parties stayed there together for one week.
The parties give disparate histories as to their relationship and date of separation. The mother’s evidence as to the date of separation was unclear and the father said they separated in October 2015.
The mother’s version included that the father sexually assaulted her on a number of occasions, including whilst the father was asleep on three occasions, that he subjected her to other forms of violence, that the father and his family schemed to cash in the mother’s life insurance and encouraged her to take her life, that he was abusive to X, that paternal grandmother also assaulted X, and that the father would not properly assist in caring for X when he was unwell.
The father denied all allegations of abuse, as did the paternal grandmother. The father said the mother was unpredictable and aggressive, that their relationship was unstable and marred by the mother’s abuse of him.
For the reasons set out later in his judgment I do not accept the mother’s evidence regarding abuse and violence.
The parties also deposed to a number of financial matters and disputes at this time, which I do not regard as relevant to the issues I must determine. I note however that the Suburb H property was sold in 2015. The father said the parties then rented a home together in Suburb C, as their committed de facto relationship continued. The mother appears to deny that the parties remained living together.
Early 2015
In about early 2015 the mother again presented to the Emergency Department at City M Hospital. The notes completed by Dr O (“Dr O”) say the mother reported thoughts of killing herself, abandoning her child, or leaving the country with her child. She was reported to have experienced intermittent depression with thoughts of suicide for years. She was recorded as having told Dr O that she did not agree with the way the father parents the child. There was no reference in those notes to the mother having been sexually assaulted by the father. The mother subsequently reported to Dr P (“Dr P”), who prepared the psychiatric assessment of the mother in these proceedings, that the father sexually assaulted her for the last time in early 2015.
Separation
In about late 2015, the parties argued about their finances. The father left the home and took X with him. X has remained in the father’s primary care since that time. The father and X moved into the paternal grandparent’s home. The mother said the father shouted and threatened her at that time.
The mother sent the father a number of text messages suggesting she was leaving Australia, that he could retain X, she would not see X until he was 18, and suggesting she could not live anymore. The mother said these messages were not sent with her “own free will, it was sent as a result of [the father’s] actions”.
In late 2015 the mother sent the father a text message saying she would leave Australia in one month’s time and would never return. She wrote:
I only need see my son’s pictures and video every 24 hours until I die. I don’t need my son to take part in my funeral ceremony.
The mother said this was not a genuine communication by her, but was sent to the father at the behest of a friend to “see what he does”. The mother deposed that she sent the father a subsequent message to say she was leaving Australia, but that she never meant that, but only did so to use as leverage in their ongoing property settlement discussions. She said he told her he would return the funds he borrowed from her if she signed a Binding Financial Agreement, and left Australia and never returned. The father denied making such statements.
In late 2015, the mother contacted the police, asserting that the father wanted her to kill herself. The police attended at her home and she was taken to the Emergency Department at the G Hospital. She was not assessed as suffering from significant ill mental health, although she is described in the Queensland Police Service response as being depressed regarding the custody issue, and appearing a little “erratic”.
The father then attended the home in the mother’s absence. The mother said the father had broken in and stolen all of X’s belongings, as well as some of the mother’s belongings. She deposed that the father deliberately called the police to undertake a welfare check on her so that she would be out of the house and he could take all those items.
The father acknowledged he attended at the home. He denied having broken in to the home, as it was the home the parties shared, and he had a key to the home. He said he retrieved his own belongings and items he needed for the care of X. He denied that he left the home in a mess or that he took any personal items or personal papers belonging to the mother. In his oral evidence he said he did not tell the mother he was attending beforehand as he was concerned as to how she would react and he did not want to risk a confrontation with her.
The father said despite the mother’s suggestions that she would not maintain a relationship with X, he was keen for her to do so, provided it was safe. The parties were eventually able to agree for the mother to spend time with X at a park in late 2015. The mother said that visit was only 10 minutes long, that X was crying and distressed and did not want to be separated from his mother. She deposed he was “put into [the father’s] car by force” and she videoed the incident. In his oral evidence, the father said the visit was between 30 and 60 minutes. He also said he facilitated X having video communication with the mother post-separation.
Late 2015
The parties again arranged for the mother to spend some time with X in late 2015 at Q Park, Suburb C. The father was accompanied by his parents. There was at least one friend of the mother who also attended the park and was nearby.
The father wanted the mother to discuss property and parenting matters with him as they walked around the park with X. The mother did not want to enter into any such discussions and said she was being pressured to sign a Binding Financial Agreement. The father said the mother became angry when he said he did not want to reconcile with her. He denied he was armed with a Binding Financial Agreement or other completed documents for her to sign, but said he had only brought with him a blank pro forma set of consent orders.
There was then a physical altercation involving the parents and grandparents. The mother sought to take X away from the park and home with her, and the father and his parents sought to stop her from doing so. There is a dispute as to who grabbed who, and what exact derogatory words were said. It appears common ground that X was crying and distressed during the dispute, as he was put into a car by one parent and removed from that car by another. It is also common ground that someone called the police, who allowed the father to leave the park with X.
I do not see that it is necessary for me to make more specific findings regarding this incident beyond observing that it is clear that none of the adults involved acted in a child focussed manner on that day. It would have been distressing for X to see his parents and grandparents angry, distressed, physically fighting over him, and hearing unpleasant words said by the paternal grandfather. The mother’s attempt to remove X from the father despite the agreement that she would have a short visit with him that day was ill-conceived. Similarly, the father’s desire to discuss property and parenting matters, and presenting the mother with documents – whatever they were – was opportunistic. The mother was there to see X, having spent very little time with him since separation. It was not appropriate for the father to seek that the parties have a discussion about the adult dispute in front of X.
Following that incident, the father did not provide X for time with the mother again, until after interim orders were made in February 2016. The mother said the father maliciously withheld X from her, to control her and pressure her into agreeing to the financial and parenting orders he sought. It is regrettable that X had only spent two brief occasions of time with his mother from late 2015 until early 2016. It would have been confusing for him that his mother substantially disappeared from life.
The mother sought a Family Violence Protection Order in late 2015 naming the father as the respondent. Ultimately, and on about mid-2016, that protection order was made final, and for three years by consent, without admission.
Around late 2015, Child Safety received a notification that X was covered in bruises, and had deep scratches on his face and other parts of his body. Child Safety did not take any action, as they determined there was no information or evidence to indicate the injuries were non-accidental. Child Safety also received a notification in late 2015 that the father had abducted the child in late 2015, having taken X for one night as agreed and then refused to return him to the mother. At that time the mother is recorded as asserting the father assaulted her but no further details or context was provided. Child Protection assessed that they need not take action as there was no evidence to suggest that X’s basic care and protective needs were not being met.
In early 2016, the father sent the mother a draft Parenting Agreement. In that agreement, it was proposed that X would live with the mother from Sunday evening to Friday afternoon each week, and spend each weekend with the father, and for school holidays to be shared. The mother declined to sign that proposed agreement. I note the mother also refused to engage in any mediation organised by the father in an attempt resolve both parenting and property issues between the parties.
Commencement of these proceedings
The mother instituted these proceedings on 6 January 2016. She sought parenting and property orders.
Orders were made in February 2016 for X to spend time with the mother each Tuesday from 9:00 am until 5.30 pm and from 9.00 am Thursday to 5.30 pm Friday each week. That time was reduced by consent to 8.30 am to 6.00 pm on Sundays only in April 2016. The April orders were made following the preparation of a Child Inclusive Memorandum dated 18 March 2016 in which family violence was not identified as a risk factor.
The parties resolved their property dispute by way of final property orders by consent on 16 August 2016.
Subsequently X’s time with the mother was increased by consent to three days each week in September 2016. Further orders were made in February 2017 restructuring X’s time with the mother to two nights per week, and orders for three nights per week were made by consent on 29 May 2017. Those orders provide for X to spend time with the mother from Tuesday to Friday each week. That arrangement has generally remained in place.
Mid-2017 Motor Vehicle Accident
According to the second report by Dr P, the mother was involved in a motor vehicle accident in mid-2017. The mother apparently advised a medical practitioner at the R Hospital in early 2018 that she had suicidal thoughts, found it difficult to cope alone with the child, had experienced headaches and felt dizzy since the car accident. She told the hospital in early 2018 she had not sought treatment despite having bruising on her head, and suffering from headaches and vomiting. According to Dr P the subpoenaed notes recorded the mother was frighted she may lose custody of X if she told the father about the accident, and that X had been in the car at the time of the accident and had also vomited afterwards.
In her oral evidence the mother said those medical records were incorrect. She asserted X did not vomit following the accident. The mother also subsequently said in her oral evidence that she had been in three accidents in – mid-2017, mid-2018 and early 2019. Notwithstanding the records to which Dr P referred, in her oral evidence the mother said that at the first accident, she was not even in her car, which was parked at a fast food restaurant, when another driver crashed into it. She also said X was in the car at the time of the second accident, in mid-2018. This does not match the subpoenaed records to which Dr P referred. According to those records, as observed, the mother advised of the mid-2017 car accident – and that X was in the car at the time – when she attended the R Hospital for a mental health assessment in early 2018.
The records, according to Dr P, described the mother at that time as presenting with elevated speech, that she was irritable at times, exhibiting some histrionic behaviour and paranoid thinking, with histrionic reaction to a stressful situation, which may be a cultural norm.

Dr P further recorded that according to the medical records from the hospital in early 2018 the mother described poor sleep, a loss of happiness, thoughts of wanting to be dead, a sense of hopelessness and that she felt betrayed and unsupported in Australia. Further she was reported to having felt marginalised by the legal system and overwhelmed, and that her two options appeared at that time to be either to kill herself or return to Country B.
Dr P was not challenged as to the accuracy of this aspect of his report save as already outlined. The chronology proffered by the mother does not make sense.
Mid-2018 Child Safety Report
The mother participated in a Triple P – Positive Parenting Program in mid-2018. It appears that during her enrolment in the program the mother disclosed that X was conceived as a result of sexual assault, which triggered a notification to Child Safety. That appears to be the first time this issue was formally raised by the mother.
Mid-2018 shoplifting and arrest
In mid-2018 the mother delivered X to school. She then attended S Shopping Centre and stole some groceries. The police were called and the mother was subsequently taken to the G Hospital as she was crying loudly at the shopping centre. The father was called by the police to collect X from the police station as the mother failed to collect X from school at the conclusion of the day.
The mother was seen by Dr T (“Dr T”), psychiatric registrar at the G Hospital.
Mid-2018 motor vehicle accident
In her oral evidence, the mother said she was involved in a second car accident in mid-2018. She said she was hit from behind, by a young female driver, when the mother’s car was stopped at a red light. She said X was in the car and this was the only time he had been in the car when her car had been involved in an accident. As already observed, the mother’s recollection does not chronologically match the subpoenaed material which Dr P reviewed.
X told the father in about late 2018 that he had been in the car when someone crashed into the rear of the mother’s car. X said he vomited. This is consistent with what Dr P said is reported in the subpoenaed material, and inconsistent with the mother’s denials that he had vomited, or that she reported that he had vomited.
It may be that X was in fact in the mother’s motor vehicle on two occasions when she was involved in an accident. Whether there were two separate occasions (in mid-2017 and in mid- 2018) or just the one occasion (either in 2017 or 2018) when X was in the mother’s car at the time it was involved in an accident, the mother did not inform the father.
Late 2018
The Queensland Police Service records set out that in late 2018 they were called to a dispute between the mother and another man who the mother identified in her oral evidence as Mr U (“Mr U”). I understand he is X’s Godfather.
Early 2019 motor car accident
The mother was involved in another accident in early 2019. She reported to Dr P that she lost consciousness, suffered hearing loss and tinnitus following the accident. She also told him she went to hospital for a few hours, but was told she was “nervous”, and she should get better. According to the mother, there was no CT or other scan done.
In her oral evidence the mother said she was hit by another car from behind. She said X was not in the car at that time. She said, in her oral evidence, she was dragged from the car, and laid on the roadside following that accident. When it was put to her that she had reported hearing loss, tinnitus and that she lost consciousness, she denied having said that.
Orders of 7 November 2019
Orders were made by consent on 7 November 2019 pursuant to which X was to live with the mother from Tuesday to Friday each week. Essentially those orders restated the May 2017 orders regarding X’s time with the mother, and added some additional orders for special occasions (that have not been implemented) as well as orders for the provision of information. The matter was transferred to the Family Court of Australia (as it then was).
Since the making of those orders, arrangements for time appear to have progressed satisfactorily for the most part, although not entirely without hiccups. There are allegations of over-holding around holidays, for instance, as well as assertions that at times X has been anxious about changeovers and some issues around video communication. It is also clear that on occasion X has been exposed to inappropriate comments by each of the parties about the other.
Importantly neither parent deposes to X refusing to spend time with either parent, or being reluctant or resistant in any significant way in the last couple of years. The father refers to X feeling nervous on occasion, and being silly and taking time to settle upon return, but it is not asserted he is overly distressed whilst in the care of either parent in more recent times. Moreover, the flavour of the evidence from each parent is that X is generally progressing well.
What is clear is that the parties have engaged in such limited communication that X is growing up moving between each of his parents who operate parallel and almost entirely unconnected households. It is also plain that neither of his parents appear to have much insight into X’s home life, interests, pastimes, or activities that he shares with the other. As counsel for the Independent Children’s Lawyer put it, each parent attends to their parenting as if the other parent does not exist.
The evidence
Some of the witnesses appeared via Microsoft Teams. The trial was otherwise conducted in person. The mother and some of her witnesses gave evidence through an interpreter. There were no technical or other issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence that was given, including that given through an interpreter and on Microsoft Teams, and that each of the participants in the hearing was sufficiently able to participate.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Moreover, I do note that the parties have deposed to substantial amounts of historical incidents in their material, as well as matters that are only tangentially relevant at best.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The Mother
The mother indicated in her Outline of Case that she would rely on affidavits from Ms V, sexual assault counsellor, Ms W, social worker, and Mr Z psychologist. However, the mother did not rely on those witnesses at the final hearing. The mother did rely on the following material:
(a)her trial affidavit filed 1 February 2022 and her affidavit in reply filed 7 March 2022
(b)the affidavits of Ms AA (“Ms AA”), Ms BB (“Ms BB”), Ms CC (“Ms CC”) and Ms E filed 31 January 2022; and
(c)the affidavit of Ms E filed 7 March 2022.
The mother and the witnesses upon whom she sought to rely were required for cross examination.
As already noted, the mother made significant allegations against the father. Those allegations include that the father and she had never been in a romantic relationship with each other, that X was conceived as a result of the father raping her, that the father had physically and sexually assaulted her and their former flatmate on a number of occasions, that he and his family encouraged her to take out life insurance, as they wanted her dead so they could claim on the policy, and that they subjected her to ongoing verbal abuse. In her oral evidence the mother said she had endured years of torture, and that the father wanted her to “die for the sake of money”.
The mother also asserted in mid-2014 that the paternal grandmother deliberately injured X, “pushing [X] away using force and his eyebrow bone was injured. It caused [X] to vomit for the next three (3) days”. She also asserted that the paternal grandmother would put her feet in X’s face when he was a baby and squeeze him, and put her toe in his mouth for him to suck. She said that the father shook X when he was only a week old, that he yelled at X when he cried, left him on cold tiles in the winter, smacked X and refused to deal with X when he was unwell. All these allegations are denied by the father and the paternal grandmother.
The mother also deposed that when she saw X in early 2016 he had “many wounds all around his body”, and “his legs and back were injured badly, and in bad condition”. I note he was an active three year old boy at that time, and there was no medical evidence adduced that supported a finding that X’s condition was suspicious. Further, whilst Child Safety were notified, they did not regard the marks or injuries as concerning. The mother also said X was highly resistant to returning into the father’s care, that the father did not feed him properly, or dress him appropriately.
Notwithstanding those grave allegations, at the conclusion of the hearing, the mother sought orders that the parties share X’s care.
The mother was not an impressive witness. I appreciate her evidence was given through an interpreter, and that impacts on the quality of the evidence. It is also notable however, that the mother frequently interrupted the interpreter to correct her when she was providing the mother’s answer to the court. That suggested the mother understood to a reasonable extent the interpreter’s English translation, and took steps to ensure it was corrected when she felt it was wrong, to ensure the court accurately had her answer. I am also mindful that there may be some cultural considerations at play in the way the mother responded to questions.
Bearing those considerations in mind, I still formed the impression that the mother was not candid with the Court. She was often evasive, and frequently avoided answering the question she was asked. She took opportunities to malign the father rather than directly responding to questions. She gave lengthy, rambling answers that sought to attract sympathy, and paint herself as a misunderstood victim, rather than engaging with the propositions put to her. She refused to concede matters that did not sit comfortably with her version of events. The mother required repeated direction to listen to and answer the question asked.
At times the mother’s evidence was plainly chronologically incorrect. I have already referred to her evidence regarding motor vehicle accidents. There were further significant chronological inconsistencies in her evidence regarding the sexual abuse allegations, to which I will turn later in these reasons.
The mother’s evidence was also often confused and confusing. For instance, on the second day, after lunch, the mother announced that she had contacted Mr U during the luncheon adjournment and he had said he was happy to come to court to corroborate her evidence given during the morning sittings and confirm he lied to the police. That was despite a clear direction from the court not to speak to anyone over the break regarding the case or any evidence in the case. The mother then said she told him the Independent Children’s Lawyer had asked him to come to court, that she had not told him to come and say he had lied to the police, but just asked him to attend Court.
When asked how long their conversation was, the mother then said she had tried to call him, but he had not answered, and that she had instead sent him text messages, and had in fact not spoken to him at all that day. Her phone was then produced, and there was communication between her and Mr U, but mostly regarding matters other than the evidence in court. There was one text message from the mother to Mr U that read “it’s what you told police about me”. The mother then said she had not yet asked Mr U to give evidence, but that she was planning to ask him that evening when she saw him for dinner. Ultimately it was entirely unclear whether the mother did or did not speak with Mr U about coming to court. He certainly did not attend during the trial.
Similarly, in relation to questions regarding a lease agreement signed by the mother and father dated late 2008, and tendered at court, the mother insisted that her former husband Mr D had signed the document, and that the father added his signature later. There is no signature of Mr D on the document at all. The lease was taken out in the names of the mother and father only. Their names appeared typed on the document as tenants, and their handwritten signatures appear beneath their typed names. There is a space for a third tenant and it is completely blank. The document is signed by the lessor. I do not accept the mother’s allegations that the father somehow doctored the lease agreement, expunging Mr D’s signature and adding his own.
Additionally, the mother’s sworn evidence regarding the existence or non-existence of the parties’ relationship has also changed. At trial the mother insisted the parties were never in a de facto relationship. This was in complete contradiction to her affidavit sworn on 3 August 2016 in which she deposed that the parties were in a de facto relationship from May 2011 until separation on 25 October 2015. In that affidavit, the mother corrected her earlier material that said the parties separated in April 2012. She deposed that as at August 2016, having been given legal advice, she now understood she had been in a de facto relationship with the father until October 2015. She swore that affidavit was true and correct prior to it being filed at court. However, in her oral evidence, the mother said her affidavit was not true.
I note further that the mother’s oral evidence regarding affectionate text messages exchanged between the parties was not plausible. She acknowledged that some – or indeed just parts – of the messages had been sent by her, but said that any references in those messages to her telling the father that she loved him had been added in by the father at a later date to the rest of her message. Alternatively, she said the father sent those messages to himself. She said “his whole family are actors and he is a designer”. There did not seem to be a basis for this explanation. She said she did not have the same telephone anymore to see if the messages showed up as having been sent from her phone. She said “I just want to forget all of these bad memories”. She also said she did not agree that he sent her text messages saying “I love you”, as she said “he never loved me, he only did bad things to me”. Again she acknowledged she had received part of the message from the father, but not the part that said he loved her.
In her oral evidence, the mother also dismissed each of the photographs exhibited to the father’s affidavit of the parties together as being staged and contrived. She said at times she was forced to participate, and pose as his partner for photographs that she knew he would later use in legal proceedings. She said she participated in such photographs as she did not really know how to reject people, and that her faith and religious beliefs required her to be nice to him. When it was put to her that in one of the photographs the parties were “cheek to cheek” because they were a couple, enjoying an affectionate relationships, this was strongly denied by the mother. She gave a rambling, confusing and substantially irrelevant answer, asserting the father was just pursuing her because he knew she was an orphan, she was upset as Mr D did not want to see her, and the father had never said he loved her. She also said that she had wanted to be in a relationship with the father, but he did not want a relationship with her. This is difficult to reconcile with her other evidence.
That the father and his family wanted the mother dead so they could claim on her life insurance was a theme to which the mother returned several times in her evidence. That included that the mother believed, at some point, that the father and his family had tampered with the brakes on her flatmate’s motor vehicle, and that the father had suggested to her that she should end her life.
There was much about the mother’s evidence that was difficult to believe or accept as well as evidence that was contrary to information obtained through subpoena, or inconsistent with material previously sworn by the mother or information provided by her to other professionals. That included the explanations she gave as to her presentation at hospital in mid-2018, her evidence regarding the dispute she had with Mr U in late 2018, and whether or not they were in a relationship, and the allegations she made regarding having been sexually assaulted by the father.
Explanation for mid-2018 shoplifting and arrest
The mother’s explanation for the mid-2018 incident is bizarre and puzzling. In the Mental Health Services Progress Notes dated mid-2018, from the G Hospital, the mother is recorded as saying she stole from the store to have herself arrested so she could reveal the father’s “evil intentions”. It is recorded that the mother gave the police a false name, which she said she did as she hoped to be detained in immigration detention and that the father would then make a claim on her life insurance policy.
Conversely, the mother initially told Ms DD (“the Family Consultant”) that she had gone to hospital as she was unwell, and had arranged for a friend to collect X from school. Subsequently, she told Ms DD that going to hospital was precipitated by X telling her not to collect him from school that afternoon as he just wanted to be with his father. That comment by X appeared to have caused the mother significant distress. That she then deliberately contrived her arrest or hospital attendance is a significant overreaction to a perceived rejection by X.
In her trial affidavit, the mother said she had attended the police station that morning, to “report [the father]”. The police told her they did not have the time to deal with her, so she deliberately stole an item from Coles to attract the attention of the police. She said she then told the police she entered Australia illegally, and needed an interpreter. She said she provided a false name, hoping to be locked up and be able “to talk to someone to know my story”. She said she knew this was inappropriate behaviour by her, but at that time, she believed it was the only way to get help.
To Dr P she said she was pretending to steal to see if the father’s family would claim the insurance. She also said “if I got away for 15 days, I would collect evidence that they raped me”. This does not appear to have been further explored by Dr P with the mother. It is also difficult to understand what evidence the police would have been able to collect as earlier in the report Dr P recorded that the mother said the father last sexually assaulted her in early 2015. Dr P further noted that the mother “appeared very evasive about discussing the circumstances of her presentation to hospital and she required repeated prompting”. Dr P also noted after perusing the subpoenaed documents that the mother’s behaviour that day appeared to be precipitated by X having engaged in some behaviour the mother found rejecting of her.
In her oral evidence, when asked what she did that day after dropping X at school, the mother gave a long and rambling answer. She referred to it being the year of the final trial (which had not proceeded), that she had access to information reported to the police by the Independent Children’s Lawyer, and that she did not think the police had considered the story “from [my] side”. She said the police refused to undertake “tests” on the father’s sperm and saliva and that the father had told the police she had mental health issues. She said the police would not talk to her, and she went to S Shopping Centre and stole items, and then asked staff at the shop to call police, hoping she would be provided with an interpreter so she could explain how she was being persecuted.

Whatever the explanation, the mother’s behaviour that day is confounding.
The mother’s evidence regarding other relationships
In her oral evidence, the mother said she had not been in a relationship with anyone else since separating from the father. However, it appeared from police records that evidence was untrue, and that the mother had been in a relationship with a Mr U.
The police records state that Mr U had called the police to his home in late 2018. He was assessed to be the aggrieved family member and the mother, the respondent. According to the police records, Mr U reported he was in an on and off relationship with the mother for the preceding three years, and that they previously lived together, although that ended in late 2017. Mr U said that the mother still stayed over regularly. He is recorded to have said there was a verbal argument between them, involving a small amount of pushing and shoving, and that the mother was shouting and slammed a door.
The mother is reported as telling the police similarly, that she and Mr U had been in a three year on and off relationship. She is also recorded as having said she wanted more out of the relationship, and was upset that Mr U did not want to meet her parents who were visiting from Country EE. She reported that Mr U did not treat her very well and only used her when he wanted sex.
In her oral evidence, the mother denied she and Mr U had ever been in a relationship. She said Mr U had lied to the police regarding their relationship “probably…to protect himself from being charged by the police for having an improper relationship with me”. She also said he acknowledged he had lied and apologised to the mother afterwards.
In her oral evidence the mother also denied that she told the police she and Mr U had been in a three year on and off relationship. She said he is her friend, and they had just been having discussions that she might use his sperm to conceive a baby. She also said she wanted to use his sperm to do IVF, but he would not agree.
That does not explain why the police report sets out that the mother told them a similar story about the length and state of their relationship. Her explanation – that she did not have an interpreter – was unsatisfactory.
The mother’s evidence regarding her unsuccessful pregnancy in early 2020 was also troubling. In her oral evidence, the mother described that she had a boyfriend prior to marrying Mr D, and that she had maintained a friendship with him. She said he lived in Country FF. She said that he travelled to Australia over late 2019 and that over the number of days he was in Australia, they planned a baby together. She said she then became pregnant in about early 2020. She also said she was not in a relationship with this man, but the pregnancy was planned and she wanted “to distract myself from the sadness of losing my child”.
I note that Ms E, with whom the mother was living with at the time had no knowledge that any man from Country FF had visited, other than the mother telling her he had come. I also note that the mother did not mention this man to Dr P when he questioned her regarding her relationship history.
It is hard to accept the mother’s evidence that her ex-boyfriend visited her from Country FF, that they planned a pregnancy together and indeed conceived a child, yet Ms E had no knowledge of any of this. I agree with the submissions made by counsel for the Independent Children’s Lawyer that the court cannot have any real sense of what occurs in the mother’s household. She has simply not been candid about her relationships with Mr U or anyone else.
Allegations of sexual assault and family violence
Alleged assault –mid-2010
In her trial affidavit, the mother deposed that Mr D had gone to work, and the father tried to sexually assault her, forcibly kissing her, covering her mouth with a cloth and touching her over her underwear and pressing on her breasts. She deposed that this assault was interrupted by her female flat mate, and that the father fled the scene. She said she was crying and shaking, and picked up a pair of scissors to use in defence if he returned to the house, and pushed a chair against the door to prevent him from coming back into the house. She deposed that after 15 minutes the police attended. The mother does not say she or the female flat mate called the police. I note the father said he called the police. It seems unlikely he would have called the police if he had just sexually assaulted the mother. She deposed that she could not disclose the alleged assault to the police at that time as neither of the women spoke English. She said she tried to illustrate what occurred, but the police took her to the G Hospital.
The mother was cross examined in relation to material produced under subpoena from the G Hospital in relation to the mid-2010 admission. At that time the mother was described by Registered Nurse Ms GG (“Ms GG”) as presenting with her “partner”, after threatening self-harm during an argument. It is recorded that she had attempted to hurt herself previously with scissors, that she had previously had thoughts of not wanting to live and that “her partner [Mr Bradley]” does not show her enough love. It is also recorded that her partner wanted a child, but she did not want to have any children, although she had now agreed to have a child with him, out of her love for him. The notes record that the mother’s attempt to stab herself with scissors “was in response to argument with partner [Mr Bradley]” who stopped her.
In her oral evidence, the mother denied she said partner and said she only said “[Mr Bradley]”. She also said her reference to “her partner” was a reference to Mr D. She said she would not have been referring to the father, as he “is my enemy”. I note later in her oral evidence, the mother denied saying he was her enemy, and said she had described the parties as being “like enemies”. The mother also said she did not say much at all at the hospital and had no idea where they got “this script” from, as she was “just crying”. She maintained she did not know why the father had called the police that day and that he must have provided all this information to the hospital. She said she did not understand English at that time, she did not understand the questions she was being asked, she did not provide the answers attributed to her in the document, and there was no interpreter.
The mother made no reference to being assaulted, or hurt, or in any way mistreated by the father at that attendance or being scared or fearful of him at all. In her oral evidence the mother asserted that she did not know how to say “sexual assault” in English, that she had tried to convey this to the police at the time, and that she had asked the police to do a test on his sperm but had been unable to make herself understood.
I do not accept that the mother believed she was being asked about her relationship with her first husband Mr D given that she is also described as referring to cultural differences and beliefs within the relationship. She is also described as saying the main issue is that she did not feel her partner, named as Mr Bradley, loved her. This is a complaint consistent with complaints she made in her evidence about the father in these proceedings. Further, the mother reported that she and the father had known each other for the five years she has been in Australia, and that they have “lived together this last year”. It makes little sense that she would make these comments in relation to Mr D given that she and Mr D married in Country B, came to Australia together and lived together following their arrival some five or six years before this attendance at hospital. The comments attributed to the mother are quite specific and detailed and do not sit with the mother’s evidence that she said almost nothing, and was just crying the whole time. In relation to her complaints that she could not make herself understood, the document records that the mother “Speaks good English with [Country B] accent” [sic], and that she communicates well, is articulate and able to describe her feelings and thoughts.
Early 2012
As already set out, the mother deposed the father sexually assaulted her the day they argued about the date of Mr L’s wedding. In her oral evidence, the mother asserted she had been knocked unconscious by the father and only gained consciousness in the ambulance.
The mother was cross examined in relation to material produced under subpoena from the City M Hospital in relation to her presentation there in early 2012 and her follow up appointment with the social worker around a month later in 2012.
In early 2012, the mother was interviewed by a registered nurse who – according to the document produced under subpoena - undertook a HH Assessment. In the course of that assessment, the mother was asked a raft of questions including whether she was ever afraid of her partner/ex-partner, whether she had ever been physically or emotionally hurt in the last year, or had threats made to hurt her, whether she was worried about her safety and whether she was safe to go home. The mother is recorded as answering “no” to each of those questions, save that she said that her partner’s mother does not understand or care about her. She is also reported to have said she was stressed because of her relationship with her partner.
In the handwritten notes accompanying the questionnaire, the nurse wrote that when the mother presented to hospital she stated she became upset that her partner wanted to go to his brother’s wedding that was close to her due date and collapsed when he threatened to leave her. There was no reference to him sexually assaulting her, or pushing or shoving her or her being knocked out as the mother now asserts. Moreover, the nurse recorded:
she stated he has never hurt her and answered ‘no’ to all safe start questions and that her partner has a ‘very good temper’ and no evidence of violence.
In her oral evidence the mother denied that anyone had asked her those questions and maintained it was not possible for her to answer those questions, as she could not speak English, and she was crying. She also said that when she was talking about her partner having a good temper, she was referring to Mr D. She said those answers must have been provided by the father and she had said she did not want to talk. She said the father was present with her at hospital and in the absence of an interpreter, the hospital staff only spoke with the father. She said the father told her to “stop” and to “shut up” and she was reticent to say anything bad about him or he would take the child away.
Despite the mother saying she could not criticise the father, I note that in early 2015 the mother attended the City M Hospital Emergency Department and did make complaints about him. In her interview that day with Dr O the mother reported that she did not agree with the way the father treated their child, the food he fed him or the way he disciplined him. In her oral evidence the mother said this was not her criticising the father, but reporting “facts”, and that in her culture “facts are not bad things”.
I do not accept that the mother was talking about Mr D when she described her partner as having a “very good temper”. She acknowledged Mr D had returned to Country B more than 12 months before that hospital presentation. She could not have been talking about Mr D’s mother where the documents referenced that she is afraid of “partner’s mum”, as she acknowledged she got along well with Mr D’s mother. She was clearly referring to the paternal grandmother. It is not plausible that the mother, pregnant with the father’s child, and taken to hospital following an argument with him in which she was upset that he might attend his brother’s wedding during her confinement period, and having heard nothing from Mr D for well in excess of 12 months believed she was being asked questions about someone other than the father.
I also do not accept the mother’s evidence that the father was present when she was interviewed by the social worker and she accordingly did not feel able to say negative things about him in his presence. The hospital record states plainly that “All women are to be asked these questions on their own.” In relation to the specific questions regarding domestic violence, the form states:
Questions must be asked only when the women can be interviewed away from partner or family member….Staff must undergo training in screening for domestic violence before administering this question.
There is a further part to the assessment form requiring the nurse to indicate if the screen was not completed due to the presence of the woman’s partner. That box is not marked. I also note that the nurse did not identify any domestic violence risk from the mother’s assessment that day.
It seems unlikely the hospital would breach its own protocols in relation to ensuring the safety of women. Secondly, and somewhat inconsistently, the mother said in her oral evidence that in relation to the admission in mid-2012, that the father was present when she woke up, but then left and she did not see him again.
I note further that the handwritten notes dated early 2012 specifically record that the patient – being the mother – made a number of statements including she was upset about her partner wanting to go to his brother’s wedding, that the patient stated she collapsed, that she stated he has never hurt her and that she stated she felt feelings of suicide (emphasis added). Again it seems unlikely that the report writer would have repeatedly incorrectly recorded these statements as having been made by the mother when they were allegedly made by the father.
Early 2012 social work appointment
In early 2012, Ms JJ (“Ms JJ”), social worker, saw the mother and the father together. In the progress notes produced under subpoena Ms JJ recorded that the mother “presented as very talkative and despite English being her second language was able to clearly convey her issues”. The father was identified as the mother’s current partner, that they had been together for three years, and that the “couple state they are committed to the relationship at present due to the baby”. Additionally the mother admitted she “has a bad temper, gets angry and sad often and if she doesn’t get her own way”.
In her oral evidence, the mother said it was not possible for her to say these things, as she did not have adequate English to put that sentence together. It does not appear to me to be plausible that detailed statements attributed in the records as being statements made by the mother have been wrongly recorded or possibly fabricated by Ms JJ.
I do note the mother did not have an interpreter at these hospital visits in early and mid-2012. That could mean that she did not understand everything that was being asked of her. However, I also note that in the HH Assessment dated early 2012 the registered nurse conducting the interview appeared to be sufficiently confident in the mother’s English that where the form enquires whether an interpreter is required, the answer ‘no’ has been circled. I also note the observations made by the social worker in relation to the mother’s ability to communicate.
Late 2015
There is a reference in Dr P’s first psychiatric report regarding hospital case notes from late 2015. In that case review it is reported that the mother said she got drunk one night, had a fling with a housemate and became pregnant. Dr P was not challenged as to the accuracy of his report in this regard.
In her oral evidence the mother denied that she had told anyone she had a drunken fling.
Mother’s reports to the Family Consultant – mid-2016
At interview with Ms DD in preparation for the report dated mid-2016 the mother said the father had pushed her during arguments. She did not otherwise respond to questions about whether she had physically assaulted him. She did not refer to any other abuse, or sexual assault allegations.
I note that Ms DD recorded that the mother preferred not to use an interpreter during her interview.
Mother’s reports to Dr P - Late 2016
The mother told Dr P at interview in late 2016 that she was in a relationship with the father from around 2011, although she also maintained they never lived together as a couple, as they slept in separate rooms. She said that was the arrangement as he would “shout and hit” when he was sleeping. She did not mention to Dr P that the father had ever sexually assaulted her. She did, however, mention that Mr D had sexual problems, and that they never had sex.
In response to being asked if there was any violence in the relationship with the father she said “he punched a wall in the garage and swore at me” and otherwise said there was no physical violence towards her. Her complaints about the father and his parents were that they were not interested in X, and were really motivated by her money.
Mid-2018
The first time it appears that the mother voiced an allegation that she had been sexually assaulted by the father was during her participation in a Triple P Parenting Program. That triggered a notification being made to Child Safety. The Child Safety response recorded that the mother “disclosed that [X] was born out of sexual assault by father of the child”, that the father is violent at changeovers, that he kidnapped X when he was three years old, and that the mother has concerns about X’s wellbeing in the father’s care. In particular, she is reported to have said X had lots of bruises on his legs, that he is quite frightened of his father and that he is traumatised and scared of him.
At that time, Child Safety again assessed that action by them was not required. The report noted that whilst allegations had been made of the father being violent at changeovers, no details were provided about that. In relation to the bruising on his legs, Child Safety noted “that [X] is 5 years old and it would not be unusual for children to have bruising that is as a result of age appropriate play and exploration”. The school had not raised any concerns about X’s presentation or behaviour. Child Safety assessed that there was insufficient information to suggest that X’s basic care and safety needs were being unmet in the father’s primary care.
Letter from Dr KK (“Dr KK”) dated mid-2018
The mother commenced attending upon her General Practitioner, Dr KK in late 2015.
In a letter dated mid-2018 annexed to the mother’s trial affidavit, Dr KK referred to the mother getting pregnant “after […] drinks with son’s father [sic]”. There is no suggestion that the father drugged and raped the mother at that time, or that he subjected her to sexual assaults at any other time. At its highest, Dr KK recorded that the mother “was abused by her son’s father and his family”, that she received ongoing abuse from son’s father and his family “and that the mother stated “she gets mentally abuse by the son’s father and grandparetns [sic]” without providing any specific details.
In her oral evidence, the mother said she reported to Dr KK that the father came to give her comfort, and added something to her drink. It is unclear why Dr KK’s notes would not record that important detail.
Mid-2018 G Hospital Progress Notes
The mother appears to have made detailed allegations of sexual abuse in mid-2018 at interview with Dr T (“Dr T”), Psychiatric Registrar, at the G Hospital.
The mother was cross examined regarding the notes taken by Dr T following her attendance upon him in mid-2018, after she had been caught shoplifting and became distraught. Those notes record that the mother reported she had never been in a relationship with the father, and that the child was the product of him raping her. She reportedly said the father was her housemate, and that he raped her when her partner was at work. She said he tried to rape her again, but she barricaded herself in a room, and armed herself with scissors to defend herself against him.

However, I have some concerns that if X lived primarily in the mother’s care, and his time with the father was reduced, there is a risk he could be exposed to his mother’s negative narrative. That could impact on X’s relationship with his father. I also have concerns that if the father exposes X to negative commentary about the mother, that could impact on X’s relationship with her.
Risk issues
Curiously, as already observed, despite the allegations made by the mother regarding the father, she does not assert that X is at risk of being exposed to family violence or abuse in his father’s care.
The court does share the concerns articulated by counsel for the Independent Children’s Lawyer that the mother’s functioning, decision making and impulsive and overly dramatic behaviour at times must impact on her parenting capacity and in turn, on X. It is clear that the mother has attended at hospital presenting with poor mental health on several occasions. Her statements regarding the father, including her narrative regarding being the victim of repeated sexual assaults perpetrated on her by the father, if conveyed to X, would be extremely distressing and confusing for him. It is striking that X currently appears to have no knowledge of the allegations made by his mother against his father. The mother is to be commended for having quarantined X from those beliefs. It is important for X’s emotional wellbeing that she continue to remain shielded from the parental dispute and allegations.
It is also apparent that the mother at times struggles with X’s behaviour, which she can find challenging.
I accept the submissions made by counsel for the Independent Children’s Lawyer that whilst there are risks in the mother’s care for X, arising out of her personality vulnerabilities, and the potential of exposing X to her negative views of the father, these risks are not unacceptable, and can be sufficiently ameliorated by ensuring that X’s time in his mother’s care is relatively contained and managed.
I note further that each of the parties appears to have engaged X in inappropriate discussions regarding their dispute. This was highlighted in the Family Report, in which X was described as being sarcastic about his mother and that he made comments that could only have come about as a result of adults sharing their views about her with him.
Each parent must ensure that they shield X from the adult dispute. They must both immediately desist from exposing X to their views of the other, or from making comments that suggest he may be unsafe or at risk in the care of the other party. They each need to learn to separate their relationship with each other from his relationship with each parent. They need to ensure X understands he has the permission of each parent to love and cherish the other parent. The consequences for X, if he continues to be the centre of his parents’ dispute and acrimony are potentially significant. His sense of self, academic and social progress and ability to form relationships will all be impacted. These impacts can be ameliorated or avoided if the parties stop engaging X in the parental conflict inappropriately.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The most recent views expressed by X to Ms DD was that he would like to spend equal time with each of this parents.
I note that Ms DD was of the view that at least when she spoke with X, his views could only be given limited weight, given his age and level of maturity. In particular she said his focus was on his parents’ needs and borne from an age appropriate desire to be fair to his parents.
Those views, and Ms DD’s observations, are now around nine months old. I do not have independent evidence of X’s current views.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
It is not in dispute that X has a close and loving relationship with his father and his paternal grandparents.
X’s relationship with the mother is perhaps more fragile. However, it is not in dispute that he loves his mother and she loves him deeply in return.
I have some concern that X has been deprived of the opportunity of spending relaxed leisure time with the mother – with their time together being limited to before and after school, and the pressures and routine the school week imposes. This may well have meant that X, over the last few years, has had less opportunities to connect with his mother, and explore enjoyable activities and social excursions together. It is hoped that adjusting X’s time, and providing him time on weekends and extended holidays with each parent will enable the parent/child relationships to deepen and mature.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
By and large each parent has sought to be a fully engaged parent. They have struggled at times to jointly make decisions, or to communicate effectively regarding X. There have been special occasions that have been missed, with each party blaming the other to an extent.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The father said he pays the mother child support as assessed. In addition, he said he pays for a number of other expenses for him, including school fees and uniform costs.
The mother acknowledged the father has paid Child Support since 2017. However, she said prior to that she had declined to seek payment from him, asserting she was afraid the father would withhold X from her if she sought payment.
There was little focus on this consideration at trial.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
It is agreed that X should have the opportunity to spend weekends with the mother. The long standing arrangements provide for X to spend school nights only with the mother. It is plain that there is a qualitative difference between school nights and weekends. As already observed, weekends will provide X greater opportunities to spend relaxed, leisure time with the mother, rather than time being confined to the ‘business’ of after school routines and hurrying to get ready for school in the morning.
The father and the Independent Children’s Lawyer also propose that X’s overnight time with the mother be reduced. Their proposals would reduce the number of overnights X spends with the mother each fortnight from six nights to three. Whilst that reduces the quantity of overnight stays, the quality of the time for X would be significantly improved by the inclusion of substantial leisure time with the mother.
However, is it also important to note those proposals would see X separated from his mother for 11 nights each fortnight. The long standing arrangement has been that X spends three nights a week with his mother, and four nights with his father. In my view, the orders sought by the father and the Independent Children’s Lawyer are accordingly a significant change for X. I note Ms DD was concerned X may be negatively impacted by that change. I share those concerns.
My understanding is that the father works full time and is generally not able to collect X from school at the conclusion of the school day, but does so around 5.30 pm. Accordingly, if X spends more time with the father during the week, axiomatically he will spend additional time in before and after school care. This is another significant change to which X would have to manage and adapt.
Conversely, the mother is not engaged in paid employment. She is available to provide care for X outside school hours.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
There are no practical difficulties or expenses that impact on X’s ability to have a relationship with each of his parents.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
X is doing well at school. That is a credit to both parents, who each take him to school and attend to his homework and reading.
I note the mother makes complaints that the father has not properly cared for X, that he does not attend to his medical or general health needs and that he has been returned to her with marks, a burned mouth and bruising. However, I also note that Child Safety are aware of the allegations of poor care provided by the father and have assessed that there is no evidence that X is not being appropriately cared for in the father’s primary care.
In all the circumstances, I am satisfied the father is able to meet X’s emotional and intellectual needs, provided he ensures he does not subtly undermine X’s relationship with his mother, or expose him to the adult conflict.
There appear to be some issues regarding the mother’s capacity to manage X’s emotions and/or behaviour. In late 2016 and in early 2017 there were times the mother appeared to be having difficulties with X’s behaviour. Similarly, in early 2018 the mother called the father, as both she and X were in a state of distress. I note that when X was observed with his mother during the preparation of the second family report, he was silly and unsettled in his mother’s care, and she appeared to struggle to manage this behaviour.
I have already set out the mother’s behaviour in mid-2018 in response to a comment from X, which does raise some concern about her ability to respond proportionately to him when he challenges her. As already observed, I share the concerns articulated by Dr P, that the mother does appear, at times, to struggle to manage her own emotions. At times, she has acted dramatically and impulsively, and become highly emotional. At those times, she may be unable to prioritise X’s needs over her own.
I am however, somewhat comforted by the passage of time since the 2018 incident where the mother’s behaviour in response to X was quite disproportionate, reactive and emotionally uncontained. I am also comforted by the fact that the mother continues to engage with her psychologist and other mental health supports. I also note that whilst there was some awkwardness at the commencement of the observation of X and his mother at the third Family Report, they were able to find a game to play together and were then more “settled and engaged in this together”.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
X’s mother is from Country B and he should have the opportunity to know and embrace the rich culture and heritage on his maternal side. This may also include the opportunity to learn the Country B language.
I share Ms DD’s concerns that the father does not appear overly supportive of promoting X's Country B language and culture. In response to questions about what he does in his home to promote X’s understanding of that part of his identity, the father said he can speak a few words in Country B language, and that he takes X to Country B restaurants from time to time. That is plainly woefully inadequate.
In the circumstances, I have concern that if X’s time with his mother is reduced to the extent as sought by the father and the Independent Children’s Lawyer, he may become disconnected from his Country B heritage.
I note that X currently participates in sport on Saturdays, and is an activity the father said he enjoys. It would be beneficial for X if both of his parents participated in that activity, and ensure that he continues to attend, irrespective of which home he is staying at.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
Each of the parents clearly love X very much, and want the best for him. I have otherwise already referred to the concerns I have regarding each parent’s insight and parenting capacity.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
The mother obtained a Protection Order against the father in mid-2015. That order was made by consent, without admission.
The mother obtained a further temporary order in her favour in late 2015. The father filed, but subsequently withdrew a cross application.
The mother’s application was concluded by way of a two year order made for her protection made by consent, without admission on about mid-2016.
As is plain from these reasons, I am not satisfied that the father subjected the mother to the assaults or abuse as asserted by her.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is clearly preferable to make orders that are at least likely to lead to further proceedings. The litigation has, regrettably, continued over many years. That his parents have essentially been locked together in battle for such a protracted period has no doubt impacted on, and diminished X’s childhood.
Reasonable Practicability
The parties appear to live reasonably close to one another, although the mother has not provided the father with her residential address. However, given the lack of communication between the parties, and the high level of conflict, it seems the parties’ capacity to implement a shared care arrangement now and into the future is significantly impaired. X is living separate and disconnected lives in each of his parents’ homes, with neither of his parents communicating regarding any aspect of his life.
This is also not a matter where the parties could have equal time as parallel parents. Such an arrangement might work if X was to live between two separate but well-functioning households. For the reasons already outlined, I have concerns regarding the mother’s household in particular. Additionally, I note the mother is so distrustful of the father that the significant issue of X being involved in a motor vehicle accident was not conveyed to the father.
Whilst the mother now says ideally she would like a shared care arrangement, I must consider what is actually feasible. Regrettably, for X, it is difficult to envisage a shared care arrangement working given the level of mistrust and poor communication between the parents.
The mother’s ultimate proposal – for a 5-5-2-2 arrangement would require X to swap and change households four times each fortnight. Given the lack of parental communication, lack of co-parenting abilities and lack of trust, it is difficult to envisage how X could smoothly transition so regularly between homes, where neither of them would be his primary home, and the time he has in each household before he moves again is quite short, giving him little time to settle into a routine before changing homes again.
It does seem to me, however, that it is in X’s best interests, and reasonably practicable for him to live with his father and spend substantial and significant time in his mother’s care.
Determination
Allocation of parental responsibility for health and education
I have already set out the reasons an order allocating one parent sole parental responsibility for these matters is in X’s best interests. I am satisfied that the father is best placed to have that responsibility. Pursuant to my orders, he will be providing X with primary care during term time, and accordingly, as a matter of practicality, he is better placed to make those decisions. This is not a reward for the father. Nor is it a punishment for the mother. It is not an attempt to exclude her from X’s life or marginalise her role. It is a recognition of the parties’ conflict and lack of communication, and reflects the need to reduce the opportunities for the parties to continue their dispute regarding X.
Care arrangements during school terms
Since mid-2017, X has spent three nights each week with his mother, and four with his father. By all accounts, he is progressing reasonably well, and is a delightful young man.
It is clear that since 2017, the mother has ensured X has attended school save for a few days when he has been unwell. He is also doing well at school. Counsel for the mother emphasised that the mother has appropriately attended to ensuring X is delivered to and collected from school, that he is provided with lunch, and that she then attends to his school work, dinner and bedtime routine on the nights she has him in her care. He also emphasised that there have been no real or substantive complaints about the mother’s care of X or her mental health state since the mid-2018 incident. There is much force in that argument.
As will be plain from my reasons, however, I do not regard it either as in X’s best interests, nor reasonably practicable that there be an equal time arrangement for him during school terms. It will also be plain from my reasons that I share the concerns articulated by counsel for the Independent Children’s Lawyer for X if his time in the mother’s care is extended as sought by the mother. Those concerns include:
(a)the mother’s reactive, chaotic, disproportionate and histrionic responses at times, to circumstances that challenge her, and the flow on effects of that to X; and
(b)the mother’s entrenched narrative that the father subjected her to sexual assaults, and that X was conceived as a result of the father drugging and raping the mother, and the potential impact of those beliefs on X.
The gravity of those allegations cannot be overlooked. However, I also note the concession made by counsel for the Independent Children’s Lawyer in closing that there is no evidence to suggest X has in any way been exposed to the mother’s narrative in this regard.
Whilst in my view, it cannot be in X’s best interests for the number of nights he spends with the mother during school terms to be increased, I also do not agree with the Independent Children’s Lawyer and the father that X’s time with the mother needs to be curtailed as substantially as they propose.
For the last five years, X has generally spent three nights each week in his mother’s care. There appeared to be little in the material that suggested there have been any fundamental difficulties with these arrangements, from X’s perspective, since the mid-2018 incident. Certainly the father maintains X makes comments to him that suggest the mother has involved him in the parental dispute. However, it also appears that X’s anxiety about being in his mother’s care has to an extent decreased. Moreover, there do not appear to be ongoing reports that X is exhibiting poor behaviour at school.
Additionally, whilst the court has some concerns about the mother’s dramatic expression of emotion at times, and her potential to react disproportionately, there appear to have been no further hospital attendances, or overly dramatic reactions that have required mental health or police involvement for a protracted period. I note the mother has been engaged with a psychologist since late 2019 and with Ms BB since about late 2020. The mother continues to attend upon Ms BB. This is comforting.
It seems to me that the appropriate balance to strike is one where X lives primarily with his father during school terms, and spends alternate weekends from Friday to Monday with the mother, together with alternate Thursdays overnight. That arrangement will ensure X is not separated from his mother for a protracted period each fortnight. The alternate mid-week Thursday overnight stay will give X the opportunity to reconnect with his mother. It will be an afternoon X does not have to be in after school care, as his mother is available to collect him at the conclusion of the school day. That is an arrangement to which he is very accustomed.

Although the orders I am making reduce the number of nights X will have each fortnight in the mother’s care – from six nights to four nights each fortnight – the quality of that time will be different. Rather than a few short hours after school and then the morning rush of getting ready, the mother and X will have the opportunity for leisure and relaxation on their alternate weekends together. It is anticipated that weekend time will also enable the mother to be engaged with X’s extra-curricular and social activities on weekends.
The mother will collect X from school on Friday and delivery him there on a Monday on alternate weekends – as well as collecting him from school in the alternate week on a Thursday. This arrangement will ensure X has the ongoing benefit of both of his parents being able to meaningfully engage with his academic progress and school community.
As already noted, I have concerns that if X’s time with the mother is reduced as proposed by the father and the Independent Children’s Lawyer could result in X becoming disconnected from his Country B heritage. Maintaining meaningful and regular time with the mother in her household will ensure X continues to be exposed to, and embrace, this aspect of his identity.
Whilst the orders I am making will mean X has to transition between homes each week, that is what he has been doing – and tolerating reasonably well – for a protracted period. I note Ms DD acknowledged that generally, block periods of time have some advantages. However, she did not whole heartedly recommend a single block of time for X. She had some concerns that X might struggle to be separated from either of his parents for a protracted period, particularly as he is so used to seeing each of his parents on such a regular basis. The proposals advanced by the Independent Children’s Lawyer and the father would require X to be separated from his mother for 11 nights in each fortnight. For the last five years, the long standing arrangement involves him being separated from her for just four nights each week. The orders I am making will provide X with an opportunity to see his mother each week.
Holiday time
The parties agree X’s holiday time should be shared between them, on a week about basis.
The mother would like the parties to be able to nominate a two week period during holidays so that they can have extended time with X. At first blush, that seems an attractive proposal, enabling the parties to perhaps enjoy an extended interstate holiday with X.
However, that was opposed by the father and by the Independent Children’s Lawyer. Counsel for the Independent Children’s Lawyer said that the risks to X, of potentially being exposed to the mother’s attitudes towards the father, or of her behaving in an emotionally uncontained or histrionic manner is increased if the periods of time she has with him are extended. She further submitted that there is a protective element in X returning to his father’s home each week, to touch base with the father.
I agree that there may be increased risks to X associated with him spending extended periods in the mother’s care. As already observed, I am satisfied that X’s best interests are met by his time in the mother’s home being contained and somewhat limited, providing a predictable and stable structure to their time together. Accordingly, I am not prepared to make orders as sought by the mother in this regard.
Age of overseas travel
The mother proposed X be permitted to travel overseas with his parents from the age of 12. The father and the Independent Children’s Lawyer said that ought be extended until he is 16 years old.
The father expressed concern that the mother could take X overseas and retain him, for instance, in Country B. He referred to the mother’s threats to leave Australia in the past.
It is plain that children can benefit immensely from international travel. That may be even more so when such travel provides the child with opportunities to embrace their cultural heritage and to connect to family members who live overseas. However, the mother’s presentation during these proceedings and a careful consideration of the chronology of events as outlined has left me with some disquiet about her genuine ability to understand the benefit to X of maintaining a relationship with his father. At times her behaviour has been quite unpredictable, difficult to understand, histrionic and confusing. She has, at times, become quite emotionally dysregulated. She clearly regards her role as X’s mother as central in her life, and the orders I have determined are in X’s best interests do not see her as his primary carer. In all those circumstances, I cannot be confident that if the mother was permitted to travel overseas with X, she would return him to Australia. Accordingly, it is my view that overseas travel for X should be delayed until he is 16 years old.
The mother’s engagement with treators
There was some discussion whether orders ought be made requiring the mother to attend upon her treators. Such an order, if it were to be made, would in my view need to be tethered to a parenting order. Otherwise, as observed by the Full Court in Oberlin & Infeld [2021] FamCAFC 66 (‘Oberlin’) the only source of power for such an order would be s 67ZC of the Act, being orders relating to the welfare of children.
As observed by Gaudron J in AMS v AIF [1999] HCA 26 at [85]-[87], the power of the court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power. The Full Court in Oberlin made similar observations that the limits of the power pursuant to s 67ZC if the Act is not entirely unconfined, and that orders directing a party to accept therapeutic treatment will not usually be able to be made under this section.
Sensibly the father did not press the orders he initially sought in this regard. Further, I note in her closing, that counsel for the Independent Children’s Lawyer agreed this was not a matter where it was necessary for X’s welfare that the orders be made that the mother engage with her treating practitioners. That does not, of course, mean the mother should abandon her appointments. She is strongly encouraged to continue to engage with Ms BB who has been able to assist her for some time. The parties all appropriately agreed the mother’s treators should be provided with a copy of these reasons, which will assist them to continue to so ably support the mother.
It is hoped that by bringing these proceedings to an end after so many years, much of the angst and conflict can abate, both for the parents and for X. It is essential that each parent ensure they do all they can to positively encourage X’s relationship with his other parent, and take real care to cease making any comments that could make X feel worried or uncomfortable about being with his other parent. Both parents no doubt have much to offer him.
Of course, if the mother’s behaviour deteriorated, or if she did expose X to her narrative of abuse it may be that other arrangements would need to be implemented to protect X.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding three hundred and sixty (360) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 3 October 2022

File number:	BRC 65 of 2016
Judgment of:	CARTER J
Date of judgment:	3 October 2022
Catchwords:	FAMILY LAW – CHILD– best interests of the child – best interest of child to live with the father – father to have sole parental responsibility for health and education – where there is poor parental communication – where there is a lack of parental co-operation – where the mother alleges the father has subjected her to sexual abuse – where the father and Independent Children’s Lawyer raise concerns about the mother’s mental health – where the parties are unable to promote a positive parenting relationship – where the father fails to promote the child’s Country B language and heritage – orders made.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 67ZC
Cases cited:	Adamson & Adamson [2014] FamCAFC 232 AMS v AIF [1999] HCA 26 Oberlin & Infeld [2021] FamCAFC 66
Division:	Division 1 First Instance
Number of paragraphs:	360
Date of last submissions:	28 July 2022
Date of hearing:	25 – 28 July 2022
Counsel for the Applicant:	Jason Todman
Solicitor for the Applicant:	Stolar Law Pty Ltd
Counsel for the Respondent:	Russell Leneham
Solicitor for the Respondent:	Sharma Lawyers
Counsel for the Independent Children's Lawyer:	Karen Oakley
Solicitor for the Independent Children's Lawyer:	Life Law Solutions

BRC 65 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KANG Applicant
AND:	MR BRADLEY Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CARTER J
DATE OF ORDER:	3 October 2022