Kayal & Baret - [2023] FedCFamC1F 614

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kayal & Baret [2023] FedCFamC1F 614

File number: SYC 4757 of 2019

Judgment of: REES J

Date of judgment: 26 July 2023

Catchwords:
FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility and to spend time with the child – Where the father conceded sole parental responsibility to the mother at the end of the hearing – Where the father has never met the child – Where the mother asserts that the father was emotionally abusive towards her and that she was sexually assaulted by the father – Where the father asserts that the mother was physically and emotionally abusive and financially controlling throughout the relationship – Where the mother asserts she is fearful of the father and relies on evidence of her treating psychologists – Where the Court Child Expert concluded the mother is incapable of supporting the child’s relationship with the father – Where contact between the child and the father may destabilise the level of care the child receives from the mother – Where the child may experience emotional distress if he were to witness the mother emotionally dysregulated – Order for sole parental responsibility to the mother and that the child live with the mother – No Order for time made with the father – Order made restraining the father from approaching the mother and the child

FAMILY LAW – APPLICATION IN A PROCEEDING – Where the mother sought to attend the hearing electronically – Where the mother asserts she would be unable to give evidence if she is in the presence of the father – Where there is no detriment to the father in granting the application.

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited: Blinko & Blinko [2015] FamCAFC 146

Division: Division 1 First Instance

Number of paragraphs: 257

Date of hearing: 11, 12, 13, 14 & 17 July 2023

Place: Sydney

Counsel for the Applicant: Mr Loukas

Solicitor for the Applicant: City Lawyers and Consultants

Solicitor for the Respondent: Ms Wearne, Reid Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Havenstein

Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 4757 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KAYAL

Applicant

AND:
MS BARET

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

REES J

DATE OF ORDER:

26 July 2023

THE COURT ORDERS:
1.That the respondent mother, Ms Baret (“the mother”) shall have sole parental responsibility for the child, X (“the child”) born 2019.
2.That the child live with his mother.
3.That the child spend no time with his father, Mr Kayal (“the father”).
4.That, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the father, Mr Kayal, is restrained from:
(a)Approaching or contacting the mother.
(b)Approaching or contacting the child.
(c)Attending at or entering the mother’s place of work or the child’s school or pre‑school.

5.That Order 4 is an order for the personal protection of the mother and the child MS BARET born 1977 and X born 2019 and an Order to which the provisions of s 68C of the Act apply.
6.That pursuant to s 11(1)(b) of the Passports Act 2005 (Cth), the mother is permitted to apply for and renew an Australian Passport for the child without obtaining the consent of the father.
7.That pursuant to s 65Y(2) of the Family Law Act, only the mother is permitted to remove the child from the Commonwealth of Australia, and/or authorise the child’s removal from the Commonwealth of Australia.
8.That the father is restrained by injunction from removing the child from the Commonwealth of Australia.
9.THE COURT REQUESTS THAT the Australian Federal Police give effect to these Orders by removing the name of the child X (male) born 2019 from the Family Law Watchlist at all points of international arrivals and departures in the Commonwealth of Australia.
10.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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 a Kayal & Baret has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

Mr Kayal (“the father”) and Ms Baret (“the mother”) are the parents of X who was born in 2019 and is now four years old.
The parents separated before X was born and the mother has not permitted the father to have any contact with X. Thus X does not know his father or have any relationship with him or with any of his extended paternal family.
The father seeks orders for contact with X, initially supervised for three months, increasing over the following 18 months to alternate weekends and half of the school holidays. He seeks equal shared parental responsibility.
The mother’s position is that there should be no orders permitting the father to have any contact with X and that she should have sole parental responsibility for him.
In summary, the mother asserts, and the father denies, that the father has perpetrated violence upon her, physically, sexually and emotionally, that he drinks excessively and that he poses a danger to X if X is brought into contact with him. Further, it is her case that she cannot cope with X having contact with his father and that her parenting capacity and mental health would be significantly compromised if that were to occur.
The father asserts that the mother perpetrated both physical and emotional violence on him and that she was financially controlling. Further, he asserts that she is quick to anger and has difficulty managing her emotions.
The father relied on an affidavit sworn by him and on affidavits by his treating psychologist, Dr B; his mother and his sister.
Both the father’s mother and sister live in Country C and neither has had any contact with the mother or with X since the parents separated in November 2018. Neither was required for cross-examination.
The mother relied on an affidavit sworn by her and on affidavits by her treating psychologist, Ms D; her mother (Ms E), her step-father (Mr F) and her aunt (Ms G). She also relied on two reports by a psychologist, Ms H. All those witnesses were cross-examined. Reference in these reasons to the maternal grandparents are references to Ms E and Mr F.
The court was assisted by a report from a Court Child Expert and an Independent Children’s Lawyer (“ICL”) had been appointed for X.
APPLICATION TO ATTEND ELECTRONICALLY
The mother sought leave to attend the hearing electronically from her solicitor’s office. That application was opposed and was listed before me the day before the hearing was to commence. After hearing submissions, I granted her application and indicated that reasons would be included in the substantive reasons.
The evidence in support of the application was found in the mother’s affidavit sworn 22 June 2023 and in the report of her treating psychologist, Ms D dated 10 June 2023.
The mother deposed that she feels anxious and fearful at the thought of being in the father’s presence and that she does not believe that she will be able to speak properly or give evidence if she is in his presence. She deposed that the presence of a security guard in court would not alleviate her anxiety.
The mother’s psychologist deposed that the mother presents with symptoms of Post-Traumatic Stress Disorder (“PTSD”) and that, based on recent psychometric testing, her symptoms have worsened.
The Court Child Expert (“the Expert”) who saw the mother in September 2022 for the preparation of a report, deposed,
[The mother] presented as highly triggered and emotional, as she frequently cried, her breathing patterned changed and she used emotive language during her interview. However, [she] was able to state to her support person or the Court Child Expert what she needed to help her regulate her emotions, such as needing a hug from her support person, taking a break for some water or to stretch her legs and that she requested the Court Child Expert refer to [the father] as “the Applicant” throughout the interview.
Further, the Expert stated, “The Court Child Expert considers that [the mother] is significantly traumatised …”
I was conscious of the fact that this evidence was untested.
On behalf of the father, counsel submitted that it is necessary for the mother to be physically present in court so that a judgment can be made from her demeanour, conduct and actions about whether she is being truthful in her evidence about the father’s alleged violence towards her.
I do not accept that submission.
Setting aside for the moment the issue of whether it is ever possible or advisable to make findings of credit based on demeanour, I do not accept that there is any advantage to be gained by having the witness physically present in court rather than present electronically.
There are, in fact, some advantages to counsel of having the witness present on a screen which ensures that, while she is not being cross-examined, she is nevertheless at all times observable. This is not the case when the witness is present in court and sitting behind her own counsel and out of the line of sight of opposing counsel.
Further, when the witness is being cross-examined, she is observable on a large screen and her demeanour, conduct and actions are observable in the same way as they would be if she were present in court.
I do not accept that there is any necessity for the witness to be present in court to permit submission to be made about her demeanour.
I do not accept that the father is in any way prejudiced if the mother is not physically present.
However, if the mother’s case in relation to violence by the father and its effect on her is ultimately accepted, then it is possible that her mental health will have been damaged by her enforced attendance for five days in the presence of the perpetrator and it is also possible that her ability to give clear and cogent evidence will have been compromised by his proximity as she deposed.
Thus, on the balance of probabilities, there is no detriment to the father in granting the application and possible detriment to the mother in refusing it.
The mother attended and gave evidence electronically from her solicitor’s office.
BACKGROUND
The mother and father met in Australia. The father, who is a Country C citizen, was in Australia on a student visa.
They commenced to live together in 2016 in a home owned by the maternal grandparents. At the time, the mother, who has a postgraduate qualification, was working as an educator and studying another postgraduate qualification. The father worked casually.
Later in 2016 they moved into another property owned by the maternal grandmother.
They married in 2016 and the mother lodged an application to the Department of Home Affairs (“DHA”) for a partner visa for the father.
In 2016 the mother undertook a three month work assignment in City J. The father accompanied her. She supported him for that period.
In 2017, they travelled to Country C to attend a celebration of their wedding with the father’s family. The mother paid the costs.
In 2017, the mother conceived for the first time.
In mid-2017, there was an incident in Suburb K which will be discussed later in these reasons. They separated briefly and the father lived with Ms G for about two and a half weeks. During that period, the mother suffered a miscarriage. They reconciled later that month and moved into a unit owned by the maternal grandmother in Suburb L.
The mother asserts that she was offered another contract in City J but the father would not permit her to accept.
In 2017, the mother was pregnant for the second time. She suffered a second miscarriage later that year.
In 2018, they travelled to Country C in order to sort out a problem with the father’s criminal record that had arisen in relation to the application for a spouse visa. They sub-let the unit in Suburb L and kept the rent. While they were in Country C, the mother learned that she was pregnant. During the time they stayed in City M, the mother asserts that the father sexually assaulted her. The father denies that allegation.
They returned to Australia and again lived with the maternal grandparents for a short time. Thereafter they stayed in various temporary accommodation including serviced apartments. The father was granted a temporary partner visa the following month.
They separated on 15 November 2018 when the mother left the serviced apartment where they were staying after an incident and moved to live in the maternal grandparents’ home.
The father commenced counselling with Dr B in November 2018.
In December 2018, the mother withdrew her sponsorship of the father’s application for Australian residence.
In early 2019, a provisional Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of the mother. The mother commenced counselling with Ms H.
In early 2019, the father’s solicitors wrote to the mother about the impending birth of X and threatening to institute proceedings.
X was born in 2019. The father was not present and was informed of the birth by Mr F. There was no communication between the mother and the father after X’s birth and the father was not allowed to see or spend time with X. The mother registered X’s birth without providing the father’s details.
In early 2019 the ADVO was withdrawn and dismissed in the absence of the mother.
The following month, the mother commenced counselling with Dr N.
The father commenced these proceedings on 22 July 2019. In his application, he sought orders for equal shared parental responsibility for X and orders to spend time with X. The father sought, on an interim basis, a Commonwealth Information Order; that X be placed on the airport watch list; that the mother be restrained from removing X from Australia; an order for parentage testing; a declaration that he was X’s father and an order that he spend time with X for four hours on three occasions each week.
The mother was not served with the father’s application until July 2020. She resumed counselling with Ms H. On 18 August 2020, the mother filed a response seeking orders for sole parental responsibility and that the father spend no time with X. She also filed an affidavit in which she deposed that the father is X’s father.
There was an incident in 2020 where the mother contacted police and reported that the father was stalking her and photographing her. The father was charged but the charges were later dropped.
The mother filed an application for divorce in mid-2020. The father instructed his solicitors not to accept service of the application and not to disclose his residential or email address. They were divorced in late 2020.
On 29 January 2021, the father filed an Amended Initiating Application seeking on an interim basis, parentage testing. That application was heard on 16 February 2021 and dismissed. The mother sought costs but that application was also dismissed. The mother filed an application to review the decision of the Senior Registrar dismissing her costs application and the father filed an application to review the dismissal of his application for parentage testing.
In early 2021, a further ADVO was made for a period of one year. The father agreed without admissions. In early 2022, the mother applied to extend the ADVO which then remained in place until her application was heard and dismissed in early 2023.
On 30 March 2021, the review applications were heard. Judgment was delivered on 19 April 2021. The father was ordered to pay the mother’s costs and his application for parentage testing was dismissed.
On 17 May 2021, the father filed a Notice of Appeal. The appeal was discontinued in August 2021.
In September 2021, the mother commenced counselling with Ms D.
In early 2022, the father filed an application in the NSW Civil and Administrative Tribunal (“NCAT”) challenging the decision of the registrar of Births Deaths and Marriages (“BDM”) not to include his details on X’s birth certificate. In early 2022, the father was advised that, after an internal review, BDM had determined that a birth certificate would issue with the father’s details. The father did not withdraw his NCAT proceedings which were dismissed in mid-2022.
The interviews for the preparation of the family report occurred in September 2022.
The hearing commenced on 11 July 2023.
THE FATHER’S CONTENTIONS
The father contends that he was the subject of abuse at the hands of the mother in that she perpetrated:
·Sexual abuse by forcing him to have sex with her when he did not want to.
·Financial abuse by refusing to pay her whole salary into their joint account while insisting that he deposited all his earnings into the account.
·Psychological abuse by pressuring him to enter into a Binding Financial Agreement (“BFA”).
·Physical abuse by hitting him.
The father contends that the mother has a long history of mental illness.
I propose to deal with the father’s allegations serially.
Was the father sexually abused by the mother?
The height of the father’s evidence in relation to this issue is his allegation that the mother importuned him to have intercourse with her at times when she was likely to be able to conceive a child. He does not suggest that he did not want a child. His evidence in relation to this allegation is found at paragraph 30 of his trial affidavit where he deposed,
… she said to me, “From now we need to have more sex. I want a baby”. It was like a condition from [the mother] so I am allowed to stay with [her]. I was married to her, I felt an obligation to please her.
The father deposed,
77.… [The mother’s] attitude was more like forcing me to be ready when there is a fertile period. I am not a robot, I felt she used me as a sperm donor …
The Expert noted,
21.[The father] alleged that, in order to become pregnant, [the mother] pressured him to engage in sexual activity and threatened to leave him if he did not comply with her.
The father’s treating psychologist, Dr B, prepared two reports dated 8 March 2023 and 12 January 2019. In the report dated 12 January 2019, Dr B sets out the abuse which the father asserts he suffered at the hands of the mother in some detail. This asserted abuse does not include sexual abuse or any mention of this allegation.
Taking the father’s evidence at its highest, I do not accept that he was sexually abused by the mother or that this alleged behaviour was psychologically abusive of him.
Was the father financially abused by the mother?
In his report dated 12 January 2019, Dr B stated, “he alleges that his wife did not contribute to their joint bank account and that she withdrew all funds prior to leaving him”.
The Expert noted that the father asserted that the mother “financially controlled him by requiring him to deposit his income into the joint account but she did not do the same”.

The records of the joint account are in evidence. The account was opened in August 2016 and closed in January 2019. In that period, the father deposited $41,151 and the mother deposited $52,045.
The parties separated on 15 November 2018. On 20 November 2018, the mother withdrew $1,500 from the joint account leaving a balance of $1,609. The father withdrew $3,000 on 9 January 2019 leaving a balance of $169 which was exhausted by small withdrawals by him by 14 January 2019.
The father’s allegations in relation to the joint account are inaccurate.
However, it should also be noted that, throughout the relationship, the parties lived mainly in accommodation provided by the maternal grandmother.
When they were first married they lived in a property at Suburb P which was the home of the maternal grandparents. The father asserts that they paid board of $100 per week each.
Between 2017 and 2018 they lived in a unit belonging to the maternal grandmother in Suburb L and paid $250 per week rent for about three months of that period. When they travelled overseas to Country C in 2018, they sublet the Suburb L unit and they retained the rent but did not pay rent to the maternal grandmother.
The maternal grandmother lent the father $5,000 in September 2018 but he did not repay her. The mother deposed that she was not aware of the transaction at the time. The maternal grandmother instituted proceedings to recover the funds after the parties separated.
They travelled to Country C in 2016, 2017 and 2018. The mother paid for the fares, meals and accommodation for the 2017 and 2018 trips. She also paid the costs of a trip they took to City J.
I reject the father’s assertion that he was the subject of financial abuse by the mother or the maternal family.
Was the father pressured to sign a Binding Financial Agreement?
When the parties commenced their relationship, the mother was the registered proprietor of a unit at Suburb L. The unit had been purchased in 2005 with funds from the maternal grandmother who was the mortgagee for an amount equal to the purchase price. The maternal grandmother deposed that there was a loan agreement that specified that the mother was required to make a will leaving the unit to her in the event that the mother predeceased her.
The maternal grandmother deposed that she did not, at any time, speak to the father about a BFA.
In 2017, the mother sold the unit and gave the whole of the proceeds of the sale to the maternal grandmother.
The father deposed that in February 2017 the mother said to him that the family was pressuring her to ask him to sign a BFA. Annexed to the father’s affidavit is an email from a solicitor acting for the mother which reminds the mother of her obligation to make a new will after her marriage leaving the unit to the maternal grandmother. The email stated,
In addition, the deed of loan requires you to enter into a [BFA] pursuant to the Family Law Act, providing that your husband will not make a claim in relation to the [unit]…
The email also noted that it would be necessary for the father to obtain independent legal advice before entering into a BFA and concludes,
I suggest that when we meet to sign your new will, I will also arrange an appointment for you to speak to one of our family law advisors to commence the preparation of the [BFA].
The mother responded, asking for an appointment after 6 April 2017.
The father deposed,
22.In April 2017, my wife and I met with her lawyer [named]… as requested by [the wife’s] mother for me to sign the BFA I refused to sign it because I did not understand it and I had not sought independent legal advice. My wife said, “I am stressed and upset that you did not sign the financial agreement”.
The father, in cross-examination, said that he met the solicitor for the mother who told him that he would need independent legal advice before entering into a BFA.
The Expert reported that the father alleged the mother “attempted to pressure him to sign a financially binding agreement”. She stated,
22.… He explained that the pressure [the mother] put on him to sign the financially binding agreement, was due to the maternal grandmother reportedly losing her house to the maternal grandfather, and [the mother] feared that this could happen to her.
Dr B, in his 2019 report stated,
He feels that his wife tried to coerce him into signing documents (the aforementioned binding financial agreement) that he felt represented a lack of trust by his wife towards him (denial of entitlement to their joint property).
Dr B’s statement is consistent with the mother’s evidence that when the issue of BFA was raised the father said to her “If I’m married to you, it’s mine”.
I do not accept that the father was either pressured or coerced into signing a BFA. There is no evidence that any document was ever prepared. The email from the mother’s solicitor clearly states that the April appointment was to begin the drafting process. The most likely scenario is that the mother and the father attended the April appointment together and that the father was told that, if he were to enter into a BFA, he would need independent advice.
The father’s evidence is that, in 2018, the mother considered buying a home for them to live in. The money for the proposed purchase was to be provided by the maternal grandmother. As I understand his evidence, the mother was not prepared to proceed to purchase a property unless he signed a BFA and he was not prepared to do so. He does not suggest that her position was unreasonable. By 2018, on any version of the evidence, the marriage was in difficulty.
I do not accept that the father was subjected to abuse by being pressured to sign a BFA.
Did the mother physically abuse the father?
The father deposed,
59.During [late] 2018, my wife had frequent mood swings. She often screamed and shouted and hit me. She said to me, “I had dreams about my mother’s dying”, her brother [named] who is suffering from depression, committing suicide”, or “our baby born dead”. She was also frequently saying to me “I am concerned about our finances”.
The father deposed,
60.[In late] 2018… she hit me in the morning with her arm on my right shoulder ending on my face…”
The mother deposed,
76.I had many vivid dreams in the early stages of my pregnancy with [X]. On the night […], I had a dream in which I was falling. I must have been flailing my arms around and hit [the father] while we slept. We both woke up. I apologised to [the father], and we went back to sleep. The next day I also sent him a text message, apologising for hitting him the night before…
The text message is in evidence. It stated,
Sorry for hitting you this morning! My dream was v real.
In cross-examination, the father was adamant that the mother had hit him on a number of occasions. I do not accept that evidence. He clearly told both the Expert and Dr B that the mother hit him once.
The Expert stated,
21.… [the father] alleged that, on one occasion pre-separation, [the mother] hit him, but that he does not consider this an incident of family violence, but rather parental conflict and [the mother’s] difficulty managing her anger.
Dr B, in his 2019 report stated,
He has on one occasion been punched by his wife. ([He] can provide a text he received as evidence of the assault).
I accept that the mother hit the father on one occasion only in the course of a dream and that she apologised to him.
I note that the father’s family law proceedings had not been commenced on 12 January 2019 and were not commenced until 22 July 2019.
It is more likely that Dr B’s report was prepared for the purpose of his application for permanent residence as it concludes,
On the basis of these allegations and in consideration of the symptoms presented by [the father], I suspect that he has indeed been the victim of domestic violence and should be afforded the possibility of attaining permanent residence in Australia in order to rightfully be present to raise the child that will soon be born to him and his now estranged wife.
I do not accept that the father was subjected to physical violence by the mother.
Does the mother have a history of mental health issues?
The father asserts, and the mother denies, that she has long standing issues with her mental health.
He deposed that, in 2017, Ms G told him that the mother “suffers from some mental health issues because of her father” and that Ms G told him that she believed that the mother suffered from bi-polar disorder or a personality disorder.
Ms G, in her affidavit, denied that she had said anything to the father which suggested that the mother was, or had been, mentally ill. No questions were put to Ms G in cross-examination on this issue. I accept her evidence.
The father also deposed that the maternal grandmother told him that her former husband, the mother’s father, was violent, angry and behaved unacceptably. In her affidavit, the maternal grandmother denied that her former husband had been violent, either towards her or towards their children. She was cross-examined about this issue and maintained her denials. I accept her evidence.
These allegations will be discussed further when considering issues of credit.
On a number of occasions the father referred to the mother having “panic attacks” and he deposed,
48.In late 2018 [the mother’s] attitude, demeanour and mood had changed from happiness to deep anxiety and she started to display anger towards me especially when she became pregnant for the [third] time, she was fearful of [third] miscarriage…
The mother does not dispute that she was extremely stressed and anxious about her third pregnancy, after suffering two miscarriages in the previous year.
THE MOTHER’S CONTENTIONS
The mother contends that the father is not a permanent resident in Australia and may not be permitted to remain here.
The mother contends that she was the subject of abuse perpetrated by the father in that he:
·Sexually abused her in 2018.
·Was verbally abusive and belittled her.
·Was physically abusive.
·Was emotionally abusive.
Is the father likely to be permitted to remain in Australia?
The father deposed that he sought advice in relation to his immigration matters immediately after the mother advised him that she had withdrawn her sponsorship, in December 2018. He has been represented from time to time in relation to those issues and at other times he has been in direct communication with DHA.
That is the extent of his evidence on that issue. There was no attempt on his behalf to bring evidence that might demonstrate that he is likely to be granted permanent residence.
Documents tendered in the mother’s case establish that, in December 2018, DHA wrote to the father, advising that he could continue his application for permanent residence in three circumstances:
These are where:
1.   your sponsoring partner has died; or
2.   you, or a member of your sponsoring partner’s family unit has suffered family violence committed by the sponsoring partner; or
3.   you and your sponsoring partner share custody, access or maintenance obligations in respect of a child.
At this time, X had not been born. Family violence was the only ground available to the father.
In early 2019, an application was made by a migration agent on behalf of the father for continuation of the visa process, relying on his assertion that he was the victim of family violence at the hands of the mother. Documents forwarded in support of that application included Dr B’s report dated 12 January 2019 and a declaration by the father setting out his allegations of abuse.
I have made findings earlier in these reasons dismissing the father’s allegations that he was the victim of abuse.
It would appear that the only basis on which the father would be permitted to remain in Australia is that he has “access” to X.
I am unable to find, on the available evidence, that it is more likely than not that the father will be granted permission to remain in Australia.
The mother’s allegation of sexual abuse in 2018.
The parents were in Country C, staying in a hotel. The mother had very recently learned that she was pregnant for the third time. The mother deposed,
65.… I had an afternoon sleep in our hotel room. [The father] went out and when he returned he forced himself upon me sexually without my consent. I resisted him and said, “No I don’t want to” but he pinned me to the bed and ejaculated inside me. I felt dirty and used. I did not report [the father’s] assault on me to the Police. I do not speak [the language of Country C] and was worried that no one would believe that a husband could [sexually assault] his wife. I had just discovered I was pregnant and did not know what the future held for me and my unborn child. I was ashamed and embarrassed. I felt helpless and did not know what to do.
Further, she deposed,
66.I tried to bury the memory of what [the father] did to me that afternoon. Until I swore an Affidavit in this Court case in August 2020, the only person I had told about [the father’s] sexual assault was my mother. I could not bring myself to have sexual intercourse with [the father] after that incident.
The father, in cross-examination and in his affidavit, denied that he had sexually abused the mother on that day or that they had sexual intercourse on that day. It is not in dispute that they did not have sexual relations after that day.
The mother was cross-examined about her allegation. Counsel for the father put to the mother that the event did not occur. She insisted that it had.
It was suggested to her that she spoke sufficient Country C language that she could have made a complaint to the police with the assistance of Google translate; that photographs of her and the father after that date showed them posing together in a manner that was inconsistent with her having been sexually abused; that she could have “looked up” the law in Country C about sexual assault in marriage on her phone and that she had never before said where she was when she told her mother about the incident because she “wanted to stymie any attempt to investigate” her allegations.
The mother conceded that she was able, with the assistance of Google translate, to send short SMS messages in Country C language, however, she said, and I accept, that her command of Country C language was inadequate to make a formal complaint and statement to police. The evidence upon which the father relied to establish that the mother spoke the language of Country C was that, on that date, she forwarded a link to a Country C website to him. I do not accept that act demonstrates that she spoke the language of Country C. The name of the website was in English and, on its face, the site appeared to be accessible in Country C language or in English. In any event, there is a vast difference between having some proficiency in a language and being confident to engage in legal proceedings in that language. The father, who has corresponded at length with DHA in English and who swore a number of affidavits in these proceedings, including his trial affidavit, without the assistance of an interpreter, chose to give his oral evidence entirely in Country C language with the assistance of an interpreter.
I do not accept that any of those matters detracts from the mother’s evidence.
Significantly, the maternal grandmother deposed that, “over the following nights and weeks” after 15 November 2018, the mother told her that the father had sexually assaulted her while they were in Country C. She deposed,
24.… She said she had protested but he continued. She told me that she felt “disgusting” and “humiliated”.
Counsel for the father submitted that the allegation of sexual assault had been invented by the mother after the father instituted proceedings for parenting orders. I reject that submission. If the allegation were a recent invention, then it was necessary that the mother also concocted her story that she told her mother about it and the maternal grandmother must have been complicit in also giving evidence that the mother told her about the event. That proposition was not put to the mother.
If that proposition were to be relied upon, it was necessary for the proposition of recent invention also to be put to maternal grandmother. No questions were put to her about this evidence.
I accept that an incident took place in 2018 that the mother has interpreted as sexual assault.
Did the father’s behaviour during the relationship constitute family violence?
The mother made numerous complaints about the father’s personal habits, his belittling language, and his physical assaults on her. I do not propose to canvass her allegations in detail. Some, but not all, were put to the father and he denied some but did not deny others. It is of the nature of such allegations that there are rarely third parties present.
There is one incident of alleged physical violence to which there was a witness. The mother alleged that in mid-2017, at Suburb K, she told the father that she wanted a break from their relationship. She deposed that he begged her to reconsider and when she refused he grabbed her by the arms and would not let her go. She broke free and ran away from him, phoning her mother to come and get her. The father grabbed her again by her wrists and let her go when he saw her mother. The mother left with her parents and stayed away from the father for about two and a half weeks. The mother miscarried a week later.
The father denied in cross-examination that he had been physically violent towards the mother as she alleged but gave no evidence about this incident in his trial affidavit.
The maternal grandmother, deposed, that, on that day, she received a call from the mother who asked her to come and she and Mr F drove to Suburb K. She stated,
14.… When I arrived I saw [the father] and [the mother] walking up some stairs […]. [The father] was holding both of [the mother’s] wrists, as they walked along. I noticed that when [the father] saw me, he let go of [the mother’s] wrists. At that point, [the mother] walked towards me very quickly. She was distressed and had obviously been crying. She said to me, “I do not want to be with him mum. Please can I come home with you?”
Mr F deposed that he parked the car and then joined his wife. He stated,
1.I saw that [the mother] was very upset. I spoke to [the father] and asked him to give [the mother] some space. I helped him collect his belongings from our home, then took him to a hotel to stay for the night.
Mr F then arranged for the father to stay with Ms G.
Neither the maternal grandmother nor Mr F was challenged in relation to that evidence and I accept it.
I accept the mother’s evidence that the father was physically violent towards her on that occasion.
Other than the allegation of sexual assault, the mother was not challenged in relation to her other allegations about the father’s behaviour towards her.
On 24 January 2019, solicitors instructed by the father wrote to the mother stating, inter alia,
We ask that you provide your instructions in respect of our client’s proposal as follows:
1.That our client is advised immediately upon you going into labour by either way of text message from you to our client or email to our office and if possible, an update in respect of your labour as our client is concerned about both yours and the child’s general health and wellbeing;
2.That following the child’s birth, that our client greet the child once he is cleaned, etc. and spend a short time with the child. We confirm that this would not be in your presence;
3.That our client is placed on the child’s birth certificate and that our client be present at the registration of the child’s birth;
4.That following the child’s birth, that our client be permitted to spend on (1) hour on three (3) occasions per week, with the child. Our client is open to your suggestions as to how this may work best for you, however ask that you appreciate that it is important that he form a bond with the child from an early age and spend regular time with the child.
Would you please provide your urgent instructions in respect of the above, in particular, confirmation that our client will be placed on the child’s birth certificate. We ask that you provide your urgent instructions within seven (7) days from the date of this correspondence.
It is important to our client that he is on the birth certificate as he has full intention of ensuring that he is a meaningful part of the child’s life.
In the event that your client is not agreeable, we advise that our client will be commencing proceedings in the Family Court of Australia, as mediation is not suitable, given the current interim Apprehended Domestic Violence Order.
In the event that the ADVO is not made on a final basis, we are instructed to note that our client is prepared to agree that he will not contact you in any circumstances.
In the event that our client is required to commence proceedings, seeking orders as set out herein, we are instructed to rely upon this correspondence as to the issue of costs.

It may not have been the father’s intention to threaten the mother but I accept that she perceived the letter as threatening. The mother did not respond to the letter.
A further letter was written on 12 February 2019, stating, inter alia,
We refer to our correspondence of 24 January 2019 (further copy attached for ease of reference) and note that we have not received any response from either yourself or a solicitor acting on your behalf.
As you will note from our correspondence of 24 January, our client is desirous of having a meaningful relationship with the child of the marriage.
The correspondence of 24 January sets out our client’s proposal for time with the child and we request your response by no later than Tuesday, 19 February 2019.
Should we not receive any response from you by that time, we are instructed to make an immediate Application in the Federal Circuit Court of Australia, without further notice to you.
In the event that our client is required to commence proceedings, seeking orders as set out in our correspondence of 24 January 2019, we are instructed to rely upon this correspondence as to the issue of costs.
I accept that the mother perceived the father’s actions in the course of their relationship as abusive and that she interpreted his efforts to contact her and to spend time with X as a continuation of that abuse. I also accept that the mother perceives the manner in which the father conducted this litigation, particularly in pursuing his application for parentage testing, as abusive. More is said about the applications for parentage testing later in these reasons.
The maternal grandmother deposed to her observations of the change in the mother during her relationship with the father. Her evidence was not challenged and was consistent with the allegations made by the mother in her trial affidavit.
She deposed that the mother lost her confidence; that she became anxious and uncertain; that she abandoned her PhD studies; that she often didn’t attend family events; that she did not initiate contact; that she seemed stressed, anxious and flustered. She deposed that she heard the couple argue and that afterwards the father gave the mother the “cold shoulder” and did not speak to her for several days.
The maternal grandmother deposed that the father was “very moody and withdrawn”; was sullen at family functions and did not engage in conversation with others; that he did not clean up after himself and that she often observed the mother to go into the bathroom and flush the toilet after the father had used it. She deposed that the father seemed possessive of the mother and that he made arrangements to meet her and did not show up. She observed that he drank heavily.
The maternal grandmother deposed that, after the separation, the mother went into “lockdown” and rarely left the house. If she did, she asked either the maternal grandmother or Mr F to go with her. She said, “She was hyper vigilant and worried in case [the father] appeared”.
Ms G deposed that, during the time the father lived in her home in mid-2017 he drank a lot and was visibly affected by alcohol. She deposed that, over the course of the relationship, she observed the mother to become withdrawn. After the separation, the mother told Ms G about things that had happened during the marriage.
Ms G deposed that, after X was born, she was the only person who was allowed to visit the mother and X at home.
Ms G’s evidence was not challenged.
I have dealt with the incident in mid-2020 elsewhere in these reasons. It is unlikely, on the balance of probabilities, that the father was intentionally stalking the mother on that occasion. He was in an area where they had both lived together and where he had associations. He had no reason to believe that the mother would be there. However, I accept that she believed that he was stalking her and that she was frightened.
I accept that the father was at times physically abusive towards the mother and that he behaved towards her in a manner which she perceived to be emotionally abusive.
CREDIT
Each party submitted that the other’s evidence could not be accepted.
I have dealt earlier in these reasons with the challenge to the mother’s allegation of sexual assault. She was not cross-examined about the other allegations which she made about the father’s behaviour.
The father gave his evidence entirely in Country C language but, even with the assistance of the interpreter and having regard to his evidently reasonable command of English, his evidence was confusing. He did not answer the questions he was asked; he prevaricated and, on occasions, the interpreter said she was having difficulty following what he said.
Whether he was deliberately misleading or whether his difficulty was associated with his command of English cannot be determined but his evidence was, at times misleading.
Throughout his evidence, both in his affidavits and in cross-examination, the father referred to his assertion that the mother was unsure who X’s father was.
There is no evidence that the mother ever suggested that he was not X’s father. Rather that is an inference that the father has drawn from her refusal to include his details on X’s birth certificate. The mother’s evidence was that she did not include the father’s details because she did not want him to have anything to do with X and that she was afraid that the father would use the birth certificate to obtain Country C passport for X and take him to Country C. There is no evidence that the mother has ever asserted that he was not the father. She swore an affidavit to that effect when she engaged in these proceedings. Nevertheless, the father continued to agitate for parentage testing, asserting that X’s parentage was in doubt.
In his reasons for judgment dated 19 April 2021, McClelland DCJ recorded,
45The basis upon which the father has cast doubt on his paternity of the child is regrettable, and, understandably, distressing to the mother. In that respect, at paragraph 14(g) of his Affidavit filed 26 March 2021, the father states as follows:
The last time we had sexual relations was in […] 2018. On this occasion in the morning, she [the mother] said words to the following effect “Let's make love, I am fertile now.” I then replied by saying words to the following effect “I am not a robot to be turned on and off.” She then replied by saying words to the following effect If you don't, I will go out and make love to someone else” She left and went out for about one hour. We made love later that day.
(As per original)
46In response to my suggestion that, even accepting the father’s evidence that the mother left his company for approximately one (1) hour on [that day in] 2018, and in circumstances where the parties were, at the time, in a foreign country, the conclusion drawn from the father’s evidence is one which is implausible. In that respect, it is implausible that the mother would have left the apartment in which they were staying to meet a random stranger and engage in sexual intercourse for the purpose of her becoming pregnant prior to returning to the parties’ then accommodation.
47The response of the solicitor for the father to my suggestion that the father’s conclusion was one which was implausible was to purport to give evidence from the bar table that, based on his previous travels to [Country C], he was in a position to state that [Country C] men are partial to Australian women and, on that basis, he contended that the contention that the mother possibly became pregnant to another unknown man during that one hour period is plausible.
48This submission was made despite the mother’s sworn evidence that, during the period of her marriage to the father, she only had sexual relations with the father and no other man. No credible evidence has been presented by the father that in any way casts doubt in respect to the credibility of the mother’s evidence in that respect.
49Even if, by some stretch, the Court could reasonably take judicial notice of such unqualified opinion offered by an advocate from the bar table, the father’s contention that the mother may have been impregnated by another man, as he described in paragraph 14 (g) of his Affidavit, is entirely implausible and, with respect, the fact that the father and his lawyer advanced such a proposition does them no credit.
In his trial affidavit, the father did not repeat his assertion about the mother’s alleged infidelity.
In his trial affidavit the father deposed,
52.On 1 December 2018, my wife sent me a letter asking me to “offer her a house or something as a condition to stay with her”.
The letter is annexed to his affidavit. It does not contain those words although I accept that is the father’s interpretation of what she wrote. However, his affidavit is misleading.
He deposed that the mother sent him “a link for Couples Counselling”. Again, that evidence is misleading. The email, which is annexed to his affidavit, was entitled “In case you need someone to talk to” and there is no reference to couples counselling.
After the mother contacted the police in mid-2020, alleging that the father was stalking her, he spoke to the police three days later but did not make a formal statement. Records tendered in the mother’s case show that, on that date, the father denied that he had been in the relevant street three days prior.
The father gave a statement to the police in late 2020 stating,
[In mid-2020], I was on [named] street attempting to find a place to park … I was in [Suburb L] to visit [Q Business] and [R Business]… I know [named] street to be free parking and relatively close to the businesses I was intending to visit.
The father named six businesses in Suburb L as those with whom he had a “business relationship”.
The police interviewed representatives of every named business. None had an appointment with the father that day. All denied any business relationship with the father.
Having regard to all of those matters, it would be unsafe to accept the father’s evidence where it is contrary to that of another witness.
THE EVIDENCE OF THE MOTHER’S TREATING PSYCHOLOGISTS
On behalf of the father it was submitted that the evidence of the mother’s psychologists can be disregarded because they accepted and relied upon the mother’s account of events and the mother’s account cannot be believed.
I reject that submission.
That proposition was never to put to the two psychologists who were cross-examined.
Dr N saw the mother for 11 sessions between April and September 2019. She provided a report in 2020 but was not required for cross-examination. She reported that the mother experienced fear and anxiety regarding contact with the father and that they engaged in cognitive behaviour therapy to address her symptoms. She stated that the mother was hyper vigilant. Dr N stated,
In my observations, [the mother] appeared to be fully present, securely attached, well‑adjusted and responsive as a mother to [X]. [The mother] reported in sessions that contact with [X’s] father increased her fear and anxiety and this may impact her ability to be fully present for her child.
Ms H provided two reports dated 1 November 2021 and 7 December 2022. In her report dated 1 November 2021, she stated, inter alia,
[The mother] impressed me at the time as being an educated, resourceful woman who had good self-awareness and family support. Her symptoms of distress, mood lability, anxiety and panic were consistent with her experience of intimate partner violence, intimidation, coercive control and abuse.
…
[The mother] outlined her involvement in ongoing litigation relating to her relationship and the care of [X]. She described feeling not only frustrated, but also negatively impacted by the extra emotional and financial burden placed upon her when the court rulings have been later appealed by [the father].
I have observed the negative impact that preparation of responses to the frequent legal claims by [the father] has on [the mother]. The responses required for the court hearings necessitate recalling traumatic experiences within the marriage and are emotionally draining, time consuming and stressful. They are a reminder of the trauma and vulnerability she experienced in the marriage, and continues to experience in relation to [the father].
[The mother] also finds attendance at court hearings distressing. She describes symptoms of anxiety, including nausea with the idea of any close encounter with [the father]. [The mother] believes [the father] is unsafe for both herself and [X] because of his previous threats to harm her and himself.
There have been many occasions where [the mother] has described interactions with [X]. These interactions, in my opinion, are appropriately attuned and sensitive to the needs of a 2 year old. [The mother] describes that when she is stressed and feeling anxious as a consequence of [the father’s] ongoing behaviour and she is preoccupied preparing court reports, she cannot give her full attention to parenting [X]. This situation negatively affects her ability to parent in the manner in which she would prefer. [The mother] reports stress, hypervigilance and poor sleep at these times. She also describes behaviour in [X] that is consistent with a stressed mother – irritability, clingy behaviour, disturbed sleep patterns, poor appetite and gastrointestinal issues.
In [mid-2020] an ADVO was implemented by police following a stalking incident which involved [the father] filming [the mother] and [X] while they were in her car near their home. [The mother] reports being “terrified” and feeling “so afraid that she thought she would die” during this incident. She alleges that [the father] has previously threatened to abduct [X] and remove him to [Country C]. She reported symptoms of anxiety, poor sleep and difficulty concentrating associated with this incident. On an ongoing basis she experiences stress and hypervigilance when near this location and avoid this location if possible.
…
The impact of the harassment and abuse on [the mother] by [the father] has been cumulative and has resulted in a woman who is genuinely afraid of crossing paths with her ex-husband, [the father]. [The mother] has symptoms consistent with those of victims of intimate partner violence. Her main concern is that she will be forced by the court to have contact with the perpetrator of ongoing intimidation and harassment towards her, and she does not understand how exposure to [the father] would support a safe, stable and secure environment for [X].
My impression is that [the mother] has exhibited behaviour consistent with a response to trauma and indicative of PTSD. These responses can be resolved with psychological support and the removal of the traumatic triggers.
In her later report, Ms H stated,
Since the previous report in November 2021 I have continued to consult with [the mother] on a monthly basis, essentially for emotional support. I am soon to retire and [the mother] has engaged another therapist as her primary therapist specifically for the treatment of trauma. Her current primary therapist is unwell with Covid at this time.
[The mother] has made progress in her self-awareness of triggers and symptoms of trauma and her capacity to regulate her emotional state has improved since my last report.
In my professional opinion [the mother] continues to exhibit symptoms consistent with Post-Traumatic Stress Disorder (PTSD). [The mother] has consistently reported symptoms of hypervigilance, anxiety, difficulty concentrating, dissociation and poor sleep patterns. These symptoms are triggered by any real or potential contact with [the father].
Over the past year [the mother] has reported a background anxious emotional state while the court hearings and subsequent appeals by [the father] continue. Preparing the responses to the frequent legal claims is emotionally draining, time consuming and reminds her of the vulnerability she experienced while in the marriage. The anxiety is further exacerbated by the ongoing harassment and intimidation by [the father] in court documents which she alleges are false and misleading.
There have been times when [the mother] thought she saw [the father] in a public situation and she experienced symptoms consistent with panic, she described feeling “shakey and unable to think”. Since that time she reports “always being hypervigilant when in public spaces”. [The mother] has actively taken further steps to avoid being followed or harassed since my last report.
…
[The mother] recently attended a court appointed psychologist for the purpose of a family report. [The mother] was distressed to learn that [the father] would be attending the building on the same day. [The mother] changed the date and time of appointment to maintain her safety. Despite this, [the mother] felt triggered during the interview when having to recall her traumatic experiences. She says she became anxious and tearful, described being “unable to think clearly”. I witnessed [the mother] continue to ruminate over the interview for days afterwards.
Ms H was not challenged as to her opinion, diagnosis or prognosis. It was not put to Ms H that her evidence could not be given weight because she relied on the mother’s account, both of the father’s behaviour and its effect on the mother. She was not asked to consider her diagnosis or her prognosis if it were the case that the mother’s accounts to her were fictitious.
Ms D is the mother’s current psychologist. She swore an affidavit annexing a report dated 24 February 2023 and provided a further report dated 10 June 2023. In her earlier report, she stated, inter alia,
[The mother] has now attended 25 1-hour sessions, some over Video during Covid lockdowns and when possible in person in [Suburb S]. She listed a number of traumatic memories and experiences and treatment has used two trauma-focussed treatments viz EMDR (Eye Movement Desensitization and Reprocessing) and also Imagery rescripting drawn from Schema Therapy. Both treatments allow the brain to renegotiate traumatic memories and relieve associated pain and suffering thereby reducing symptoms.
[The mother] presented with symptoms of Post Traumatic Stress Disorder (hereafter PTSD) – please see Annexure A for a list of [the mother’s] symptoms against the diagnostic criteria for PTSD according to the DSM-V. Her most prominent symptoms are those of avoidance and hypervigilance. Please see Attachment B for the results of the psychometric tests [she] completed supporting this diagnosis.
[The mother’s] therapy treatment plan is to use a combination of EMDR therapy and Imagery Rescripting (drawn from Schema Therapy) to target the trauma memories she identified with the aim of desensitizing her to their impact on her current functioning. The legal proceedings over the course of treatment have needed to be debriefed and psychologically problem-solved to manage her symptoms and have diverted sessions away from trauma-focussed treatment so progress has been slower than anticipated at the start of treatment.
My impression of [the mother’s] relationship with [the father] is that it was one of coercive control with physical, sexual, emotional, psychological and financial abuse. She told me she was [sexually assaulted] by him while in [Country C] and this, together with increasing verbal abuse and threats of violence, contributed to her decision to leave the relationship on 15 November 2018 when she was […] pregnant, her decision to return to Sydney [while] pregnant against [the father’s] wishes and her ongoing goal since then of no contact with him. The legacy of such a relationship is often the very symptoms [the mother] is demonstrating: particularly hypervigilance, avoidance of triggers/reminders of [the father] and reexperiencing aspects of the memories of the traumatic experiences as briefly summarised in Annexure A.
It is my opinion that in light of the history related by [the mother], plus four years of what seems to be almost unrelenting court matters filed by [the father] against [her], at least two of which were dismissed, the effect of which is to keep her in a constant “battle-mode” with high arousal high and little time in which to recover from her traumatic relationship experiences, contact with [the father] in the future would exacerbate her current psychological symptoms. She was able to enrol in university last year to improve her skills in the market place but this appears to have been on hold over the recent months since the legal proceedings intensified. Should she be required to coparent or provide access time for [X] to [the father], I have grave concerns that he psychological state will worsen and her symptoms be exacerbated. This would be extremely deleterious for [The mother] and would impact adversely on her ability to parent her son [X]. Over the course of treatment, she impresses me a conscientious, concerned and loving parent for [X]. [The mother] could not co-parent with [X’s] father due to the previous abusive and violent history of their relationship and the legacy of the four years of legal cases brought by him against her it in what seems an unusually unrelenting stream of legal matters.
[The mother] completed two psychometric tests today: Post Traumatic Stress Disorder Checklist – Civilian (PCL-C); and Kessler Distress Scale – 10 (K10). Based on the results of these two tests, her symptoms of PTSD and mood have intensified. Her results have worsened (indicating she is more symptomatic) between 18/10/22 when she scored 68% on the PCL-C and 44% on the K10 and 24/02/2023 when she scored 82% on the PCL-C and 72% on the K10. Please see summary of psychometric testing in Annexure B.
(As per the original)

In cross-examination, Ms D said that she and the mother had worked on some trauma memories with good effect but “we haven’t tackled the worst ones yet, because she hasn’t been actually ready, at that – at that point in my view, to start working on those.”
She said,
I consider that the court cases have diverted our treatment from the traumas in her history, and we have been working on how to cope with the almost a – seems like a barrage of legal documents to be reviewed and read, and attended, and so a lot of our time has been working around strategies to manage that, sometimes working through the documents in session, and it has slowed her progress, so that we’ve had to put on the back burner the very reason – the treatment targets we set up when I first met with her back in September ’21, I think, we first met.
In answer to the proposition that the end of the litigation will assist the mother’s recovery, Ms D said,
If [the mother] continues her life with no further contact with the perpetrator of her traumas, I will think that her recovery will be greatly assisted with the therapy. However, she will be – perhaps the word traumatised is too high, but contact with the perpetrator of traumas just re-exacerbates the original injury. So, it – it’s contingent on how much, if any, contact, going forward, I think, once – even once the court case is finished.
Counsel for the father asked Ms D whether it was possible for the mother to be traumatised by a sexual assault she imaged rather than one which occurred. She said,
I think you understand that it is possible. For – for instance, someone with psychoses may be traumatised by a psychotic memory. They may be traumatised by nightmares… So, [the mother] has been consistent, so she – in the first session, she told me about the sexual assault. It has come up periodically over the two years of treatment – nearly two years of treatment, and she has been consistent and sometimes gives a little more detail, so in [the mother’s] case, I accept that the event she described happened, and she’s traumatised by the events. She seems to me a very plausible consistent patient in her history telling. So, while it is possible, I have never thought that she was in any way delusional or psychotic. Is that answering your question?
Ms D said that she had never diagnosed a patient with PTSD solely because of a miscarriage.
Asked to assume that the sexual assault did not occur, Ms D said,
It’s actually very difficult for me to go with that hypothetical. Just that it’s just established in my mind that it did happen.
Further, she said that the criteria for diagnosing PTSD, in her view, includes domestic abuse that doesn’t “come to the level of life or death” and that she would continue to treat the mother as a person with PTSD.
Asked whether it is possible for a person to have an irrational fear of another person, Ms D said,
In my clinical experience, when people come reporting extreme fear of somebody, an apprehension, it has always had a rational basis.
Counsel for the ICL asked Ms D about the impact on the mother if an order were made for X to have contact with his father. She said,
My opinion is that, should that be ordered, that [the mother] will become – spend more – more and more time in anxiety, that her current PTSD symptoms would intensify and worsen, that her – she has a tendency in sessions at times to freeze in response to what we’re working on in the session, so we’ve – pause on the workaround trauma or difficult material, and I help her stabilise, and she has internalised that. But I think that her ability to parent her son would deteriorate, because you can’t be in hyper arousal, living on the sympathetic nervous system all the time, and be a really attentive parent, that it – you become reactive rather than your normal self, and you probably understand that the brain function changes when you’re in that state, in the sympathetic nervous system, so you’re not even able to access your full capacity mentally. So, it would – in my view, it would be very deleterious for her ability to parent her son.
Asked about whether supervision would ameliorate the effect on the mother, she said,
I don’t think it eliminates the threats to her, and the fact that I – I think that she will be hyper aroused leading up to the contact, during the contact, and after the contact. I have observed other patients of mine who have gone through that process, and they are still extremely hyper aroused despite that – it being in a supervised access centre, and that also transmits to the child. So I – in this case, because of the nature of the serious issues between the two of them, between [the mother] and her ex, I think it would still contribute to her heightened anxiety, heightened PTSD symptoms, and reduce her capacity in parenting. So I – in my opinion, it wouldn’t be helpful for – not that I’ve met [X], but it hasn’t been helpful for other children in that position in – when I’ve worked with mothers in the past.
Ms D said that if orders were made for supervised time, the mother would need more frequent therapeutic intervention. She said that, in the lead up to the trial, the mother had not been able to continue studying because of the impact on her cognitive functioning “so it will just perpetuate the scenario that she’s in now”. She said,
[The mother] would be constantly in a traumatised state, I suspect, worse in the lead up to the supervised visits. So … in this situation, I would recommend against it, if it was my choice to make… her ability to parent, to function in a healthy psychological way would be severely impacted.
Ms D said,
I would expect that her symptoms would worsen, that her recovery prognosis would be much poorer, and that her parenting ability would be severely impacted when she’s – her symptoms – if her symptoms intensify.
Ms D said that the mother would need therapy weekly or fortnightly and that may not be logistically or financially viable.
THE EVIDENCE OF THE EXPERT
The report of the Expert was dated 31 October 2022. Both the parents were interviewed for the report but X was not observed with the parents. The Expert stated,
Despite the Court Child Expert not being able to conduct formal observations with [X] and [the mother] or with [X] and [the father], it is not considered to have hindered the Family Report due to [X’s] young age and stage of development and [X] not having a relationship with [the father]. The Court Child Expert made a clinical decision that, it would not be in [X’s] best interests to be observed with [the father] or with [the mother]. This is due to [the mother’s] highly emotional state and given that she is [X’s] primary carer, this might have destabilise the level of care he received after the Family Report assessment processes and furthermore, it might have caused [X] some emotional distress if he were to see his mother emotionally dysregulated.
Of her interview with the father, the Expert stated,
25.[The father] stated that it is in [X’s] best interests to have a relationship with both of his parents. He indicated that he had some insight and explained that, in order to have a relationship with [X], it would take time to allow [X] the opportunity to form a bond with him and create a strong foundation for their relationship, before [X] could progress to spend significant block time with him. [The father] stated that is [sic] thinks [X] would be happier seeing both of his parents regularly and consistently. [The father] indicated that he has collected teddy bears for [X] that get bigger in size as time has lapsed. It is [the father’s] opinion that, although it would be “an emotional meeting” for the first time, he and [X] would be able to adapt well to the situation and smoothly transition to gradually spending more time together. [The father] indicated that he is willing to do parenting courses to learn new skills to help [X] with the transition and to improve his parenting abilities. [The father] is of the opinion that [the mother] would be a great mother, but he is worried because [the mother] allegedly has a propensity to anger easily and has difficulty in managing her emotions. For this reason, he considered that [X] might be at risk of physical and emotional harm, were [X] to not follow his mother’s instructions or if [X] did something that she did not approve of.
In relation to the mother, the Expert reported,
33.… [The mother] indicated that she has been diagnosed with post-traumatic stress disorder (PTSD) and that she has proactively engaged in therapy. [She] asserts that, Court events and alleged ADVO breaches, have exacerbated her poor mental health and that when there are no Court events or ADVO breaches, she is better able to manage the symptoms of the PTSD. [The mother] said that she “won’t cope at all” if [the father] were to have any contact with [X], and that she is not sure how she would respond if there were Orders made for [X] to spend time with [the father], as it would be “manipulation for the rest of my life”.
34.Concerning parenting capacity, [the mother] identified that, because she is trained as an educator, she is capable of great parenting and is able to give [X] the best upbringing, “if I am left in peace and I do not have to deal” with [the father]. She stated that “when we are under siege and harassed, then I am not able to parent the way I want”. She described that she would be hyper vigilant, “fearful and unable to function”, if she were ordered to co-parent with [the father]. [The mother] said that [X] suffers when she is distressed. [She] gave the example that, [X] has digestive problems and “a massive ulcer on his tongue because I have been up every night and I haven’t been sleeping well and he is not eating and very clingy”. [She] said that [X] is very intuitive and attuned to her emotions and “if I am out [meaning emotionally dysregulated], then [X] is out”, which he “does not deserve”. [The mother] said that she and [X] have a really nice “balanced” routine, which she tries to maintain, but because of Court events, [X’s] routine changes and he has to go to childcare more, which is distressing for her. [She] stated that, over the course of a year, only the maternal great aunt visited her because “I didn’t go out, I had agoraphobia” as she was fearful of [the father]. [The mother] stated that [X] is “totally dependent” on me, which was exacerbated by Covid-19 pandemic lockdowns.
The Expert stated,
36.… [The mother] was not able to fathom having a co-parenting relationship with [the father]. At times, she was speechless at the thought of [X] having any time with [the father] and was not able to articulate how she would manage or cope, if the Court made Orders for [X] to spend time with [him], except to indicate that she and [X] would be negatively impacted. It is [her] perception, that by [the father] initiating several years of litigation, it has confirmed for her that he is not concerned with [X’s] wellbeing and that [the father] using the Court was not for him to establish a relationship with [X] but rather allegedly continue to perpetrate power and control over her. She alleged that [the father] has continuously harassed her, and used [X] as “an innocent prawn”, in the alleged dynamics of family violence. [The mother] said that [the father] knows “what he does distresses me” and that he is “using” [X] to get an Australian visa. [She] said “I didn’t want this to be [X’s] legacy; to come into this world as a [sexual assault] for a visa. No child deserves that”.
In relation to X, the Expert reported what the mother told her.
38.[The mother] described [X] as intelligent, sensitive and creative and she described her relationship with [X] as “symbiotic, fun, and loving”. She said that she has a “close knit family” and that [X] does not like to be around strangers but that he has a good relationship with her extended family members and his educators. [The mother] indicated that [X] attends childcare three days a week. She said that as part of his childcare experiences, he is able to participate in excursions to the park and to the library. She indicated that [X] enjoys childcare and that he has lovely friends. [X] reportedly likes to engage in play with trucks and trains and loves to build things such as train tracks, towers and houses.
39.[The mother] said that [X] is reaching above and beyond his developmental milestones, in particular, his language development. [She] indicated that [X] does not like loud sounds or crowded environments, which she believes is a result of being raised during the Covid-19 pandemic. [The mother] stated that, at times, [X] fidgets with his hang nail or cuticle, but did not identify this as a sensory issue or anxious behaviour. She stated that [X] was socially isolated and was not able to socialise with anyone except her and her extended family members, because of the Covid-19 pandemic restrictions and lockdowns but that going to childcare has helped [X’s] socialisation skills to further develop.
The Expert observed X to be clingy towards his mother and that he required assurance from his grandmother and great aunt before he could be separated from his mother so that she could be interviewed. The Expert reported,
42.After [the mother’s] interview, [X] appeared tired and initially did not want to engage with the Court Child Expert. [X] was cautious of the Court Child Expert, but indirectly communicated with the Court Child Expert, as he passed messages through his mother, the maternal grandmother or maternal great aunt. After a short period, [X] spoke to the Court Child Expert directly. The Court Child Expert considers that [X] has a strong relationship with his mother, maternal grandmother and maternal great aunt and that he feels safe around them and can approach them for comfort when he might feel apprehensive. The maternal grandmother and maternal great aunt were observed to put some boundaries in place with [X], as they advised him to give [the mother] a minute whilst she went to the bathroom. [X] did not initially listen, but after several attempts to redirect his attention, [X] took on board their instructions and suggestions. This is considered to be typical behaviour of a child of [X’s] age and stage of development. [The mother] was able to reassure and bargain with [X] about not being able to attend a big “play park” (at the Court). It is noted that [the mother] did not want [X] to attend Court Child Services childcare, due to being worried about [X] being in the care of strangers, as opposed to family members. [The mother] indicated this is because of her “trauma lens” and her difficulty in trusting systems.
Under the heading “Evaluation” the Expert stated,
43.A fundamental consideration in this matter is [the mother’s] assertion that it is unsafe for [X] to spend any time or have any communication with [the father]. The assessment of a child spending no time with a parent is a complex, and challenging undertaking given the numerous intricacies and variables to consider. Generally speaking, a child is considered to be at risk of unacceptable harm for them to not have a relationship with one or both of their parents.
She opined that it is not surprising that X might be apprehensive and have difficulty separating from his mother having been raised in the pandemic years and experiencing the physical restrictions imposed on socialising and contacts outside the family. She also opined that X’s anxiety may be heightened by the mother’s hypervigilance and her inability “to trust people and systems.”
The Expert stated,
57.The Court Child Expert considers that [the mother] is significantly traumatised and that, at times, this has had, by [her] own admission, a significant detrimental impact on [X], such as [X’s] loss of appetite. Irrespective of the whether or not [the father] perpetrated dynamics of family, the Court Child Expert considers that [the mother] would find it exceptionally difficult to cope with the task of co-parenting with [the father], because she is extremely fearful of him and does not trust him. In addition, if there is veracity that [the father] engaged in dynamics of coercive and controlling family violence, the negative impact that it would likely have on [the mother’s] parenting capacity would mean that [X] might experience issues of neglect and psychological harm. Furthermore, it seems likely that [the mother] would unintentionally transferrer [sic] her fear and lack of trust in [the father] onto [X], thus causing him to experience emotional distress and negatively influence his perception of his father.
58.It would be important to consider the possibility that [X] might be at risk of unacceptable harm whilst in his mother’s care, due to her difficulty in regulating her emotions and her inability to support any form of relationship with [the father] and subsequently, this potentially having a negative impact on [X]. In this instance, it might be that a change of care would be in [X’s] best interests. However, the Court Child Expert will not be recommending that [X] have a change of care, as it does not appear to be in [X’s] best interests to destabilise the relationship he has with his primary attachment figure, [the mother]. It would seem that by rupturing [X’s] attachment with his mother and to try to establish this with his father, whilst grieving the loss of his relationship with his mother, would be far more traumatising and detrimental to his biopsychosocial development than not having a relationship with his father.
The Expert considered that it was not feasible for the parents to share parental responsibility.
In cross-examination, the Expert was asked to consider how it would be possible for X to be introduced to his father by a supervisor who is a stranger to him, in circumstances where the maternal grandparents and Ms G had all given evidence that they each would not facilitate any such arrangement and the mother’s evidence was that she could not. She said,
So if [X] started going to a play therapist, they could talk about that and introduce the idea of meeting his father. It would also be important that his maternal family support [X] with learning that he’s – that’s what he is going to do, spend time with his father. Every day, there’s contact centres introducing kids to parents… It would be distressing. And with his personality, from the day that I met him, he wasn’t – he seemed anxious. But he – by the time that comes into play, he has developed a little bit more. Is he going to child care more? What’s his socialisation like? Who is he spending time with? Is it just his family? Is he spending the other time with other people? And typically with contact centres, there’s a changeover time. So Mum will take [X] there, tell him what’s going to happen, Dad will be there in the room and then the supervisor does the changeover as well.
…
So play therapy could help [X]. Well, you would talk about meeting his father first. You would introduce that idea, and then, by him having play therapy sessions as needed, whatever feelings are elicited or brought up, he can act that out in the play therapy, so it externalises it, so they’re not keeping it inside themselves, and so as the supervised time is happening, if he’s engaged in play therapy, he has got that outlet to let out any kind of stress he might be feeling or nervousness, anxiety, ambivalence.
The Expert agreed with the proposition that X has never experienced a mother in a state which is not “triggered and heightened” at the prospect of the father having contact and agreed that is not a sustainable environment for him.
She said,
It’s a really complex situation, this one. It’s … really hard for [X] in terms of what would be the best way to help him with this with an ideal way of introducing him to his father for the first time…. Perhaps a family therapy service. They might do it. But it really takes a parent to help facilitate this the best for [X].

The Expert rejected the proposal by counsel for the father that X could be introduced to his father via a video link from his mother’s home. She said,
So from my perspective, it would be better to have a contact centre do it because by [the mother] being in the home and, I’m guessing, distressed, it’s still going to impact [X]. So having him out of the home environment for that situation would be better for him… I think from the way [the mother] presented in my office, having a FaceTime call with [the father] would be distressing for her. It would need to be somewhere else or someone else facilitating that… [the mother] would be distressed and then that would impact [X].
The Expert said that, if the detriment were persistent and ongoing, that would be more detrimental to X than not having a relationship with his father at all.
Ultimately, the Expert concluded that, in circumstances where the mother was incapable of supporting X’s relationship with the father, the risks of contact outweighed the benefits. The relevant passage of the transcript, of questions asked by me of the Expert, is reproduced below:
Her Honour:     You deal at paragraph 58 of your affidavit with the scenario where there’s an attempt to introduce [X] to his father that is not terribly successful. But, on the other hand, destabilises the mother to a significant extent. So I understand that you’ve given this your consideration. It seems to me that I’m being put in a position where one of the things that’s being suggested is that a third party, a complete stranger to [X], would come and pick him up from his mother, take him to a contact centre where he meets another complete stranger who’s the supervisor. I don’t know what that person’s qualifications might be. The only evidence before me at the moment is that [T Contact Centre] could provide supervision for two hours every two weeks. It’s not clear to me that [T Contact Centre] understands that this child has never met his father. So complete stranger number 2 is then going to introduce [X] to complete stranger number 3, by which stage, I’m suggesting to you, we’re going to have a completely distraught child?
The Expert:Yes, your Honour.
Her Honour:     What is the likelihood of [X] being able to form a relationship with his father of trust and security in those circumstances?
The Expert:It’s highly dependent his maternal side of the family supporting it and promoting it and reassuring him and comforting him, and then not being emotionally dysregulated in front of him.
Her Honour:     Well, let’s assume for the purpose of this discussion that I don’t think the mother can do any of those things?
The Expert:Then it wouldn’t be great for [X]. It would be detrimental for him.
Her Honour:     Because what we’re really balancing, can I suggest, is the long-term benefit to [X] of having a relationship with his father against the short to medium term, at least, detriment of the effect that will have on his mother?
The Expert:So, in terms of his age and stage of development, right now is so critical in [X’s] life to get a healthy solid foundation. Relationship is everything with at least one stable person who’s emotionally consistent with the child, physically consistent. What makes it even more complex is it can be a perceived threat. So say, for example, [the mother] is in the bathroom having a shower, and [X] is like, “Mum, Mum, Mum,” and he perceives her as not listening or not there for her, that can be a trauma for a child. So then if a mother or a father is definitely emotionally not available or physically not available because of trauma for themselves or a mental health issue, then it’s very – it can be very detrimental in terms of reaching developmental milestones, their academic milestones, being able to make friends at school and have those safe and healthy relationships, being able to flourish and participate in extracurricular activities or have sleepovers with their friends. It’s – now is such a crucial time for him to be able to then become a well-adjusted adult. So say, for example, if [X] didn’t have that relationship unfortunately with his dad now, if he’s got a stable upbringing emotionally and physically now, he could develop that later. Whereas if he doesn’t have that stability now, it’s going to affect other areas of his life, not only not having a relationship with his dad…
Her Honour:     And that if that strong relationship with his mother is threatened by something else, then we shouldn’t try it?
The Expert:Yes, unfortunately. Like – and it’s the persistence of it. Yes, we can do rupture and repair. So with any relationship, say, for example, a mum yells at a child or a dad yells at a child, then they come back and say, “I’m really sorry. I shouldn’t have done that. That was – I was feeling angry, but there’s no excuse for that behaviour,” and they repair that relationship. But in terms of the information from my assessment, [X] stops eating. He has bowel issues, or he – he’s so impacted by Mum that it – it could be dangerous, like, medically and developmentally. Like, cognitively and emotionally.
Her Honour:     [Ms Baret’s] therapist gave evidence that she is detrimentally affected by even the concept of contact with the father?
The Expert:Yes.
Her Honour:     For a period of time leading up to it happening, that she would then be anxious and hyper vigilant for the whole of the time that it was happening, and then continue afterwards. And it could be, couldn’t it, that, if we were talking about contact every two weeks, then, by the time we went through the building up phase and the coming down phase, we were starting again?
The Expert:Yes.
Her Honour:     That she would be continually in this state?
The Expert:And the stress hormone can stay in the body – depending on the severity of the stressor or the trauma, it can stay in the body for quite a long time. So yes.
Her Honour:     And that, as I understand your evidence, would have a carry-over effect on [X]?
The Expert:Definitely.
Her Honour:     And so we’re really talking about – I think I come back to short and medium term harm as opposed to long-term benefit. And…
The Expert:And…
Her Honour:     I’m sorry?
The Expert:Stability of care is the most important thing. He needs a stable routine. Like, yes. He has had so much – exposed to so much emotion that I’m guessing, from what I say in my interview – yes, [Ms Baret] said that, when she’s not triggered by the court stuff, then she is a great mum. She can be there for him, for [X]. And it – children thrive on predictability and routine and consistency. That’s what helps their brains develop. They need that. They need to feel safe so they can grow their brain. Like, there’s MRI pictures of a neglected two year old brain. It’s not as healthily developed, and it’s smaller than the child who’s raised in a safe, predictable, loving, safe, home. Secure home.
CONSIDERATION
In considering what arrangements would best promote X’s interests, I am required to proceed on the basis that his best interests are the paramount consideration and to conduct that investigation taking into account the matters set out in s 60CC of the Family Law Act 1975 (Cth), (“the Act”) and, in particular, s 60CC(2) which is set out below.
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Whilst the mother’s case is that X would be at risk in his father’s care, because his father’s behaviour would expose him to risk, it is not that aspect of her case that is the most concerning.
The more concerning aspect of the assessment of risk to X lies in her evidence, and that of her treating psychologists, that the presence of the father in her life, however remotely, would have the effect of exacerbating her anxiety and thus her capacity to parent X.
The reality of that position is illustrated by the decision of the Expert not to observe X in the presence of the mother because of her,
… highly emotional state and given that she is [X’s] primary carer, this might have destabilise the level of care he received after the Family Report assessment processes and furthermore, it might have caused [X] some emotional distress if he were to see his mother emotionally dysregulated.
In Blinko & Blinko [2015] FamCAFC 146, the Full Court stated:
83.It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
On behalf of the father, a number of propositions were put and it is convenient to deal with them in the order which the Full Court adopted:
·That any risk arising out of the mother’s concerns can be ameliorated.
·That the mother’s allegation of sexual assault is a fiction.
·That the mother’s other concerns are exaggerated.
·That the evidence of the mother’s psychologists can be disregarded because they relied upon the mother’s reported concerns which are either confected or exaggerated.
I propose to deal with each of those submissions. I have already considered the evidence of the likely effect on the mother of a continued presence of the father in X’s life and therefore in hers.
Can the mother’s concerns be ameliorated?
There is no evidence that anything could be done to ameliorate the effect on the mother of X’s having contact with his father.
Ms D said that supervision would not ameliorate the mother’s anxiety.
Has the mother made up her allegation of sexual abuse?
I do not accept that the mother’s allegations are fictitious.
Has the mother exaggerated the seriousness of the other behaviours by the father of which she complained?
The issue to be determined is not whether the fictitious objective person might have reacted to the circumstances or behaviours in the same way as the mother did but rather, whether the mother’s reactions are genuine.
It may be that another person might not have reacted in the same way but that is not the issue.
I accept that the mother’s reaction is genuine.
What weight should be given to the evidence of the mother’s treating psychologists?
I do not accept the submission by counsel for the father that no weight can be given to the evidence of the mother’s three treating psychologists. Of the three, only Ms D was cross‑examined about the proposition that the mother’s account of the father’s behaviour was not accurate.
Ms D was not prepared to accept that proposition.
No challenge was made to the evidence of the other two psychologists and there is no basis upon which their evidence should not be given weight.
I have already made findings about the mother’s allegations of the father’s behaviour and I do not accept that they were fabricated.
It follows that I have accepted the evidence of the mother’s psychologists.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X’s views were not canvassed by the Expert and there is no evidence that he is aware of the identity of his father or he wants to meet his father.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
X has no relationship with his father.
The evidence of the Expert about X’s relationships was not challenged. She reported,
42.The Court Child Expert considers that [X] has a strong relationship with his mother, maternal grandmother and maternal great aunt and that he feels safe around them and can approach them for comfort when he might feel apprehensive. The maternal grandmother and maternal great aunt were observed to put some boundaries in place with [X], as they advised him to give [the mother] a minute whilst she went to the bathroom. [X] did not initially listen, but after several attempts to redirect his attention, [X] took on board their instructions and suggestions.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)        to participate in making decisions about major long term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
The father has sought to participate in X’s life since his birth but has not been permitted to do so.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There is no evidence that the father has, until December 2022, made any contribution to the costs of X’s care. When in December 2022, the father sought to pay child support, the mother declined to accept it.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have dealt earlier in these reasons with the evidence about the likely effect on X of a deterioration in his mother’s ability to parent, consequent upon the effects on her of the continued presence of the father in X’s life and therefore in hers.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
I accept the mother’s evidence that she cannot facilitate X’s having a relationship with the father.
The maternal grandparents and Ms G were each asked whether they would assist in facilitating any order for supervised time. Each emphatically and clearly said no.
How then, realistically, is it proposed that X should be introduced to his father?
The proposal of the father’s counsel that this should occur by video link in the mother’s house was not put to the mother but, in any event, it was rejected as unsuitable by the Expert for the reasons she expressed.
The Expert’s suggestion that X could commence play therapy was effectively abandoned by her.
Ultimately, the tenor of the evidence of the expert is that there is no way that X can be introduced to his father without detriment to the mother’s mental health and to her parenting and that there will be a consequent detrimental effect on both X’s physical health and his emotional and developmental health.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
In so far as X has a need to have a relationship with his father, I accept that the mother is not capable of providing for that. The mother, in cross-examination, said that she has considered the possibility that, at some time in the future, X will want to meet his father and that she is prepared for that, although, she said, someone else will have to facilitate it.
In other respects, X is thriving in her care.
The father’s parenting capacity is untested.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The Expert stated, in her report,
55.A significant factor in this matter is [X’s] identity, in terms of his [Country C] cultural heritage, and establishing ones [sic] identity is a multifaceted endeavour and this might be difficult for [the mother] to help [X] with as she is not [from Country C] and does not have significant lived knowledge of culture, traditions, and language, thus, she might not be able to adequately meet this need for [X].
Although the mother gave evidence that she is introducing X to the Country C language and Country C food, I accept that X will never have the sense of being of Country C heritage that would come from spending time with his father. This will be a loss for X.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I accept that each parent has acted in the way he or she genuinely believes is likely to promote X’s best interests.
any family violence involving the child or a member of the child’s family;
I have dealt extensively with this issue in these reasons.
I do not accept that the mother has perpetrated family violence against the father.
I accept that the father has perpetrated family violence against the mother.
CONCLUSION
Even if orders were put in place for X to be introduced to his father, there is no guarantee that X will ever form a relationship of trust and security with his father. So much is clear from the evidence of the Expert, both in her report and in her oral evidence.
However, there is no doubt that the effect of undertaking that process will have a detrimental effect on the mother and a consequent, detrimental effect on X.
On balance, I am satisfied that the negative consequences of introducing X to his father outweigh the perceived benefits.
I am unable to craft a scheme or orders that will facilitate X’s having a relationship with his father in such a way that his mother’s mental health is not compromised.
Order will be made in accordance with the proposal of the mother and the ICL.
PARENTAL RESPONSIBILITY
In submissions, counsel for the father withdrew his application for equal shared parental responsibility and conceded that the mother should have sole parental responsibility.
THE MOTHER’S SECTION 68B APPLICATION
The mother sought orders restraining the father from approaching or contacting her or X; from assaulting, threatening, stalking or harassing her; from attending at her place of employment or X’s school and from attending any activity in which X engaged.

There is no evidence that the father has ever engaged in such activity.
No submissions were made on behalf of the father in relation to that portion of the mother’s application.
There was no evidence from the mother’s treating psychologists that such an order might be of assistance to the mother’s treatment or recovery and no questions were put to the Expert about it.
However, as a matter of common sense, I accept that the mother will be reassured and comforted if orders broadly in accordance with her application are put in place. I am satisfied that any measure that can be taken which gives the mother peace of mind is an order for X’s benefit and for his personal protection.
I propose to make orders restraining the father but in terms less stringent than those proposed by the mother so that his being inadvertently in the same vicinity as the mother could not give rise to an allegation of breach.

I certify that the preceding two hundred and fifty-seven (257) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.
Associate:
Dated: 26 July 2023

File number:	SYC 4757 of 2019
Judgment of:	REES J
Date of judgment:	26 July 2023
Catchwords:	FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility and to spend time with the child – Where the father conceded sole parental responsibility to the mother at the end of the hearing – Where the father has never met the child – Where the mother asserts that the father was emotionally abusive towards her and that she was sexually assaulted by the father – Where the father asserts that the mother was physically and emotionally abusive and financially controlling throughout the relationship – Where the mother asserts she is fearful of the father and relies on evidence of her treating psychologists – Where the Court Child Expert concluded the mother is incapable of supporting the child’s relationship with the father – Where contact between the child and the father may destabilise the level of care the child receives from the mother – Where the child may experience emotional distress if he were to witness the mother emotionally dysregulated – Order for sole parental responsibility to the mother and that the child live with the mother – No Order for time made with the father – Order made restraining the father from approaching the mother and the child FAMILY LAW – APPLICATION IN A PROCEEDING – Where the mother sought to attend the hearing electronically – Where the mother asserts she would be unable to give evidence if she is in the presence of the father – Where there is no detriment to the father in granting the application.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	Blinko & Blinko [2015] FamCAFC 146
Division:	Division 1 First Instance
Number of paragraphs:	257
Date of hearing:	11, 12, 13, 14 & 17 July 2023
Place:	Sydney
Counsel for the Applicant:	Mr Loukas
Solicitor for the Applicant:	City Lawyers and Consultants
Solicitor for the Respondent:	Ms Wearne, Reid Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Havenstein
Independent Children's Lawyer:	Legal Aid NSW

SYC 4757 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KAYAL Applicant
AND:	MS BARET Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	REES J
DATE OF ORDER:	26 July 2023