Kori & Georgene - [2023] FedCFamC1F 989

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kori & Georgene [2023] FedCFamC1F 989

File number(s): BRC 16543 of 2020

Judgment of: BAUMANN J

Date of judgment: 11 December 2023

Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where the mother contends the father has sexually abused the child and is an unacceptable risk of harm to the child by way of sexual abuse – Where the Court finds the father is not an unacceptable risk of harm to the child – Where the Court finds the mother is unable and unwilling to facilitate the child’s relationship with the father if the child lives with her, and that the mother poses a risk of emotional and psychological harm to the child – Final orders made for change of residence to the father’s care – Interim orders made for a moratorium of time with the mother for one month, and thereafter supervised time to commence

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA

Cases cited:
Blann & Kenny (2021) 64 Fam LR 120

Briginshaw v Briginshaw (1938) 60 CLR 336

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

M v M (1988) 166 CLR 69

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 1 First Instance

Number of paragraphs: 92

Date of hearing: 19 & 20 July and 8 & 9 November 2023

Place: Brisbane

Counsel for the Applicant: Mr Larsen

Solicitor for the Applicant: Freedom Law

Counsel for the Respondent: Mr Clutterbuck

Solicitor for the Respondent: Turnbull Mylne

Counsel for the Independent Children's Lawyer: Ms Earl

Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors
ORDERS

BRC 16543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KORI

Applicant

AND:
MR GEORGENE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 DECEMBER 2023

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 15 December 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders be discharged.
2.That the father have sole parental responsibility for major long term decision for the child, X born ~~2014~~ 2015 (“the child”) but in the exercise of his sole parental responsibility he must inform the mother of any major long term decisions that he has made within five (5) days of doing so.
3.That notwithstanding the provision of Order 2:
(a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and
(b)The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

4.That in the event of an emergency, the parent the child is with will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent providing them with all relevant information including details of treating practitioner and/or hospital with the notifying parent to send an email within twenty four (24) hours confirming what has taken place.

Living arrangements
5.That the child live with the father.
6.That the father shall collect the child from Court Children’s Services section of the Federal Circuit and Family Court of Australia, Brisbane at the conclusion of the Court Child Expert explaining these Orders to the child on 11 December 2023.

Parental communication
7.That for the purposes of exchanging information with each other, the parents shall:
(a)communicate by telephone matters of an urgent nature in relation to the child; and
(b)communicate by email about day-to-day matters in relation the child.

8.That the parents keep each other informed of:
(a)any medical problems or illnesses suffered by the child whilst in their care;
(b)any medication that has been prescribed for the child; and
(c)any other matter relevant to the child’s welfare.

9.That the parents advise each other of their current contact telephone numbers and inform each other of any changes to these details within seven (7) days of such change occurring.

Schooling
10.That by commencement of term one (1), 2024, the father provide the mother with details of the child’s school and ensure that the mother’s details are provided to the school including on any enrolment. form.
11.That these Orders authorise each of the parents to contact the child’s school and obtain information about the child’s school reports, progress, school letters, school events and school photos at that parent’s cost.

Medical
12.That the parents inform each other in writing as soon as practical of any specialist medical appointments with any specialist medical practitioner, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant”) in relation to the child.
13.That these Orders authorise both parents to obtain any reports or other information in relation to the child directly from the child’s treating medical or allied health practitioner at the requesting parent’s cost.
14.That if a child is hospitalised or receiving specialist medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
15.That the father shall make arrangements for the child to attend upon a general practitioner within seven (7) days of the child coming into his care for the purpose of the general practitioner assessing whether to refer the child for psychological therapy. In the event the general practitioner makes such referral, then the father shall promptly act upon such referral and arrange such therapy as the general practitioner and/or the therapist shall recommend for the child.
16.That pursuant to s 121 of the Family Law Act 1975 (Cth), the father be granted leave and shall provide to the general practitioner and the therapist a copy of these Orders and the Reasons for Judgment delivered 11 December 2023.

Other orders
17.That during the time the child is with either parent, that parent shall:
(a)actively promote the child’s relationship with the other parent and speak of the other parent respectfully;
(b)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not-denigrate or insult the other parent in the hearing or presence of the child and shall remove the child from the presence and hearing of any third party who is doing so;
(d)not denigrate or insult the other parent on social networking media or sites, and
(e)not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child and use their best endeavours to ensure that others do not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child;
(f)not use any form of physical discipline on the child;
(g)not smoke in the presence of the child nor in confined spaces or a vehicle in which the child is located; and
(h)remove the child from the presence of any person who is using or under the influence of any illicit substance.

18.That pursuant to s 121 of the Family Law Act 1975 (Cth), both parents and their legal representatives be granted leave to provide a copy of these Orders to:
(a)any school, education institution, or care provider;
(b)any treating medical practitioner, hospital or health care professional for the parents or the child; and
(c)any government department or instrumentality,

that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian privacy principles as set out in Schedule I of the Privacy Act 1988 (Cth).

THE COURT ORDERS UNTIL FURTHER ORDER:
19.That commencing on a date one (1) month after the date on which the child commences living with the father in accordance with Order 5 herein, the child shall spend time with the mother on one day in each weekend at B Contact Centre, for two (2) hours at times B Contact Centre can accommodate.
20.That the parents be equally responsible for the payment of all supervision costs in relation to the child spending supervised time with the mother.
21.That commencing on a date two (2) weeks after the date on which the child commences living with the father in accordance with Order 5 herein, the child shall communicate with the mother by video call on two (2) occasions in each week at times to be agreed between the parties, but in default of agreement such call to commence between 6.00pm and 6.30pm on each Tuesday and Thursday, with the father to initiate the call. The father is not required to provide the child with privacy during such calls, and in the event the father considers the mother is in breach of the provisions of Order 17, shall terminate the call.
22.That the mother be and is hereby restrained from attending at any school at which the child attends or other place where she knows the child is or may be.

Airport Watch List
23.That until further Order or else subject to the written consent of both parents, each parent, Ms Kori born in 1971 and Mr Georgene born in 1981, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, X born 2015 from the Commonwealth of Australia.
24.That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parents.
25.That these proceedings be adjourned for Case Management Hearing at 9.30am on 26 March 2024, and for that purpose:
(a)the parties shall file and serve by no later than 4.00pm on 5 March 2024:
(i)a minute of any order as to the time the child spends with the mother, sought by them; and
(ii)one (1) affidavit deposing to the progress of the child since these Orders were made, and in the case of the mother, what therapeutic engagements she has engaged with since the date of these Orders, including, if so advised, a report from each treating professional she has engaged with.

(b)pursuant to s 121 of the Family Law Act 1975 (Cth), the mother be granted leave and shall provide to any treating professional engaged by her a copy of these Orders and the Reasons for Judgment delivered 11 December 2023;
(c)the Independent Children’s Lawyer shall be permitted to issue a subpoena to B Contact Centre for a copy of their records relating to this family.

26.That the Independent Children’s Lawyer shall have liberty to apply on the giving of not less than three (3) days’ notice.

IT IS NOTED:
A.That in the event the mother seeks a change to the arrangements for supervised time between herself and the child, the Court would be assisted by evidence that she has engaged with treating professionals and that that she has attained insight into the impact of her previous conduct, and that if the Orders for supervised time were changed to provide for unsupervised time between the child and the mother, that the mother has insight and strategies that indicate she would comply with these Orders without supervision.

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

This case involves what parenting orders are in the best interests of X, a child born in 2015. She is the only child of the relationship between the Applicant mother, Ms Kori (now aged 52 years), and the Respondent father, Mr Georgene (now aged 42 years).
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
COMPETING PROPOSALS
At the conclusion of the trial that had been conducted over two different and separate tranches, Counsel for the Independent Children’s Lawyer – who addressed the Court first – produced orders which are now attached to these Reasons as Appendix One, the effect of which were:
(a)to require on a final basis that the child should live with the father and the father have sole parental responsibility and the power to make various decisions in relation to other matters; and
(b)that on an interim basis after commencement of one month from the date in which the child commenced living with the father, the child would begin to spend supervised time with the mother.
The Independent Children’s Lawyer’s position was that such supervised time should, effectively, continue for a further nine months, and that a further hearing for determination be limited to the issue of whether the child’s time with the mother should change from supervised time to unsupervised and, if so, in what form.
The Respondent father adopted almost entirely the final proposals of the Independent Children’s Lawyer. This was, to some degree, a departure from a significant aspect of his proposal, which was that the child would live with him; that he would exercise sole parental responsibility and that there would be a moratorium of any time between the child and the mother for a period of 12 months. I acknowledge that in his case outline, the father indicated that if the Court did not find that the mother was a psychological risk to the child, that he would be prepared to consider a week‑about arrangement.
The mother’s Counsel, Mr Larsen, had the opportunity to address the Court in final submissions last. The mother’s position as set out in her case outline was that the child would continue to live with her; that the child would spend no time with the father because he presented a risk of sexual abuse to the child, and that the child be restrained from being moved from the Commonwealth of Australia. As the transcript will reveal, at the conclusion of the evidence, the mother was given an opportunity to reconsider her initial position, however Mr Larsen obtained clear instructions that the mother’s position with respect to the father was that even if the Court found he was not an unacceptable risk as a result of sexual abuse, then he should still only spend time with the child on a supervised basis and that such supervised time occur for a limited time every fortnight.
To understand how we got to such polarised, and difficult positions for the Court to contemplate for this little girl, a history of the case and proceedings is required.
BACKGROUND
Although it appears the parties commenced their relationship in 2001, they were not married until 2012 in a ceremony in a mosque in Region C, by which time the mother had converted to Islam. The mother was born in Country S but is an Australian citizen. The father holds both Australian and Country D citizenship, having been born in Country D but having come to Australia in approximately 2000. I am satisfied that the relationship post‑marriage had significant elements of conflict. My own observation is that these parents, as they appeared to me, come from quite different backgrounds and are very different in their attitude to life and, as has been demonstrated, parenting styles.
There was an event to which I will refer later in these Reasons that occurred in late 2012 (after the marriage), when the father was charged and ultimately convicted, after a trial, of an offence. The significance of that event is dealt with later, but it is noted that the father was convicted in late 2013, although no conviction was recorded. He was fined and required to perform community service. The father says, and I accept, that the mother was well aware of this offence; supported him and, in fact, even accompanied him to the police station when he was initially charged or after apprehension.
The parties much loved daughter X was born in 2015. She is therefore now eight years of age. At the time of separation on 18 April 2017, the child was very young. I am satisfied that an incident occurred between the father and the mother in early 2017 (see Exhibit 5). The mother felt intimidated and threatened by the father’s behaviour, locked herself in a bathroom and ultimately escaped with the child, she says, and thereafter was housed in refuge accommodation for many months.
The father’s version is different, saying that he did not physically assault the mother; that whilst he was forceful in his behaviour verbally, that was because he had a real suspicion, it seems, that the mother had been engaged in some extramarital relationship and that viewing her mobile phone satisfied him that that had occurred. In any event, it is not in dispute that despite a trial in which the father contested the making of a family violence order, such an order was made in late 2017 for a period of five years (see Exhibit 6).
Very little time occurred between the father and the child X between separation in April 2017 until April 2018. I am satisfied that whatever time did occur was generally supervised by the mother, however to the parties’ credit and with the benefit of at least one session of mediation, the parties were able to resolve final consent orders in respect of X, which were made on 20 March 2018 (when she was about two and a half years of age). The Orders provided as follows:
Parental responsibility
Equal shared parental responsibility
1.That the parties equally share parental responsibility in relation to the child [X] born […] 2015.
2.That the parties are required to make all decisions about major long-term issues in relation to the child jointly. The Mother will contact the Father via Email or SMS in relation to any major decision changes or needs and the Father will respond via Email or SMS. If agreement cannot be reached the Mother and Father will attend mediation through a Telephone Dispute Resolution Service to reach an agreed outcome.
3.That the parties are not required to consult the other when making decisions while the child is in their care under this order about issues that are not major long-term issues.
Lives with one parent and substantial and significant time with
4.That the child live with the Mother.
5.That the child spend time with the Father at times as may be agreed upon through mediation via Telephone Dispute Resolution Services over time. Failing agreement the child will spend time with the Father on one full day on a Sunday from 9am till 1pm and one half day on a Monday from 9am till 1pm.
Changeover
6.That for the purposes of facilitating the time referred to in paragraph (5), the changeover will occur at:
a)MacDonald’s restaurant at [E Shopping Centre] [Suburb F] Queensland
b)Any fast food takeaway place as agreed upon
c)In the event of safety concerns changeover will occur at a local police station
Specific issues
7.Neither parent will consume or be under the influence of illicit drugs or excessive alcohol, in the presence of the child or 24 hours prior to being in the presence of the child.
8.Neither parent will use physical discipline on the child.
9.Both parents will ensure the child is transported in vehicles fitted with appropriate child restraints.
10.Neither parent will smoke cigarettes in a car or room with the child, or allow the child to be exposed to other people’s passive cigarette smoke.
11.The Father will ensure the child does not come into contact with [Mr G] when the child is inthe care of the Father.
12.If the Father is unable to care for the child during his time with the child he shall give the Mother the first opportunity to care for the child before making alternative care arrangements.
13.If the Mother is unable to care for the child due to an emergency situation she will give the Father the first opportunity to care for the child before making alternative care arrangements.
14.The Father has agreed to attend the Circle of Security Parenting Program.
15The Father and Mother have agreed to place the child's name on the Family Law Watchlist. “That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, ([Mr Georgene], […] 1981 and [Ms Kori], […] 1971) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child ([X], […] 2015) from the Commonwealth of Australia for a period of (15 and a half) years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties”
16.The Father and Mother have agreed that the Mother may take the said child [X] […] 2015 to [Country S] to attend the Mother’s Father’s Funeral when the situation arises.
Exchange of information
17.That the Father and the Mother will:
a)Keep each other informed at all times of their postal address, email address and landline and mobile contact telephone numbers and notify each other of any changes within 24 hours;
b)keep each other informed of the names and addresses of any treating medical practitioners (this includes all main stream or alternate health practitioners) who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
c)inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness the child suffers and these parenting orders provide to any treating medical practitioner all authority necessary to provide to each parent all information about such illnesses or treatments; and
d)keep each other informed of the current details of any private health cover held by each of the Father and the Mother for the child.
Information and communication
18.That both the Father and the Mother authorise the school the child attends from time to time to give each parent information about the child's educational progress and other school related activities and interviews, and supply each of the Father and the Mother with copies of school reports, photographs, certificates and awards the child obtains (at the requesting parent’s cost).
19.Each parent shall take all steps necessary with the child’s school to register each other with the school administration and teachers as the person ahead of all others to be contacted in the event of emergency, accident, illness or otherwise with respect to the child.
20.That the Mother and Father each be at liberty to attend any school or significant extracurricular events in which the child is involved, irrespective of in whose care the child is present at the time.
21.That during the time the child spends with either the Mother or the Father, each parent shall:
a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
b)speak of the other parent respectfully to the child; and
c)not denigrate or insult the other parent in the child's presence or hearing and use their best endeavours to ensure that others do not denigrate or insult or criticise each of the parents in the child’s presence or hearing.
d)not discuss these proceedings or the contents of any documents filed in or intended for use in these proceedings with the child, other than with leave of the Court.
22.That the parties encourage and not undermine each child's relationship with the other party.
23.That the parties advise the other of any change of their mobile telephone number, land line telephone number and postal address within 24 hours of such change occurring.
24.That both parents inform the other as soon as reasonably practicable of any serious accident, illness or injury involving the child.
25.That each party inform the other if they intend to take the child outside the [Region C] or Brisbane Metropolitan area during the period the child is in that party’s care.
Alternative dispute resolution
26.Unless in the case of urgency or serious contravention of these orders, in the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

Of particular relevance, in my view, as events finally unfolded, was Order 20, where the mother and father were at liberty to attend any school or significant extra-curricular activity in which the child was involved. This Order was made after the final protection order was made in late 2017. Although there were difficulties from time to time, as I will now deal with, between 27 April 2018 until 23 June 2019, time generally proceeded in accordance with the Orders made. They included, as can be seen, unsupervised regular time. Even when the child raised some concerns about a sore vagina with the mother in late 2018, as these Reasons again demonstrate, time continued. In particular, between two dates in 2019, the father cared for the child solely whilst the mother went to Country S for the funeral of her late father.
Although the mother says the first disclosure of sexual abuse by the child against the father was made in late 2018, at least by June 2019, the mother had formed the view – for the reasons which I explain later – that the father had sexually abused X. I deal with the issue of sexual abuse discretely in these Reasons.
The mother raised some concerns about the father (at a time when he was not seeing the child) being at H School in late 2019. Although she asserts that was a breach of the protection order, it is clear that the terms of Order 20 enabled the father to be present at the school at that time. The father says he did not approach the mother and that he kept his distance from her.
With time having ceased in June 2019, finally the father, on or about 23 November 2020, filed a contravention application. Sadly, despite child inclusive conference interviews taking place in July 2021, no time was ordered by the Court (there being no actual application before the Court by the mother to cease, suspend or discharge the time Orders since time ceased in June 2019), and the only way the father was having the matter dealt with was by way of a contravention application, which was ultimately discontinued on 1 December 2021.
By August 2021, the mother had filed an application in which she had made it clear that the child should spend no time with the father. The father’s response shortly thereafter was for equal time, and when the matter was transferred to Division 1 and designated as a Magellan matter; Orders were made for a Magellan family report to be prepared, and an Independent Children’s Lawyer was appointed. On 3 May 2022, social worker Mr J interviewed the mother and father, but was not able to observe or interview the child and provided a limited report, which was marked as Exhibit 8. Mr J was the subject of cross‑examination during the trial.
The Independent Children’s Lawyer arranged for the mother to be the subject of interviews for an independent psychiatric assessment by Dr K on or about August 2022. The father funded and facilitated, without Court order, for Dr K to prepare a psychiatric assessment of himself. His interviews took place in August 2022. Later in these Reasons I refer to the evidence of Dr K, who was the subject of cross‑examination. The report of Dr K contains some extremely concerning assessments about the mother, and as a result, was not initially released by the Senior Judicial Registrar who had the case management control of the proceedings, however when the matter first came before me on 9 March 2023, and after hearing submissions I caused the psychiatric report to be released but on the basis that it would be discussed with the mother with the benefit of a health professional.
At the time the matter was before me in March 2023, I expressed concern that the child had not been attending mainstream schooling. Whilst to some degree this was attributable to earlier restrictions relating to Covid-19, that was not the full story, however to the mother’s credit, in June 2023 she re‑enrolled the child in mainstream schooling at the L School.
The trial commenced for what was to be three days on 19 July 2023. The mother was represented by Mr Larsen of counsel and lawyers appointed under the s 102NA cross-examination scheme. The father is represented by Mr Clutterbuck of Counsel, and the Independent Children’s Lawyer, Mr Field, had retained Ms Earl to represent the child. Some difficulties with the matter completing the evidence in the initial stages of the hearing became obvious, not the least being the unavailability of Mr J, the family report writer, but perhaps more importantly the fact that the mother, through her Counsel, sought leave to adduce evidence of various recordings that she had made of the child post 23 June 2019, which were not before the Court.
It became clear that the mother may have (but whether this was a view shared by her lawyer is unclear) thought that the trial directions limiting her to one affidavit in evidence‑in‑chief did not restrain the Court from looking at earlier affidavits that included details of these other recordings. For the reasons delivered orally at the time, and even though the mother had been subject to limited cross‑examination, the Court allowed the mother to adduce further evidence, necessitating the trial to be adjourned.
The Court had in open Court viewed two s 93A interviews conducted by Queensland Police with the child, one in mid-2019 commencing at 3.36pm, and the second a couple of weeks later commencing at 10.13am. Having taken submissions from the parties, and over the objection and opposition of the mother’s Counsel, the Court on 20 July 2023 made some interim orders for the child X to spend supervised time with the father. The terms of that Order were as follows:
1.That the child [X] born […] 2015 (“the child”) live with the Respondent mother.
2.That the child spend time with the Applicant father supervised by] B Contact Centre\ each Saturday:
a. For one (1) hour for the first two (2) occasions; and
b. For two (2) hours thereafter.
3.That the parents immediately do all things and sign all documents required by the centre to commence time pursuant to Order 2 herein including completing any intake process required by the centre.
4.That the parents share the cost of supervision equally and each parent pay their own cost of intake.
5.That neither parent discuss these proceedings with the child.
6.That the mother not question the child about her time with the father.
7.That the father shall not seek professional information about the mother from the child.
Three completed visits at B Contact Centre between the father and the child took place, namely on 29 July 2023, 12 August 2023 and 19 August 2023.
A visit scheduled to take place on 5 August 2023 was cancelled as the child was unwell. The visit scheduled to take place on 26 August 2023 did not take place and there were no further interactions between the father and X despite the father being available at the contact centre, at least on 26 August 2023, 2 September 2023, 9 September 2023, 16 September 2023 and 23 September 2023 before the Final Hearing was resumed before me on 8 November 2023. Detailed notes of those occasions were tendered before the Court through an affidavit of a witness who was available and duly cross‑examined, namely the supervisor, Ms M.
The evidence in this case causes two significant discrete issues to require determination in my view, namely the sexual abuse allegation and the mother’s capacity to support the child’s relationship with the father.
Before I deal with the evidence before me within the matrix of the relevant s 60CC(2) primary considerations and s 60CC(3) additional considerations, I make some findings in relation to these discrete issues.
SEXUAL ABUSE ALLEGATIONS
By final submissions, Counsel for the mother, Mr Larsen, was firmly instructed to maintain his client’s position that the father has sexually abused the child, and despite my efforts to draw Counsel to consideration of the proper test – namely, whether the father poses an unacceptable risk to X – Mr Larsen was instructed to maintain the submission based on the entrenched instructions of the mother. The father has at all times denied any inappropriate contact. The Independent Children’s Lawyer, through his Counsel Ms Earl, contended in final submissions that the evidence does not establish that the father is an unacceptable risk and seeks no such adverse finding as sought by the mother.
I now propose to consider the evidence and factual findings relative to the allegations of unacceptable risk of sexual abuse. Before doing so, it is appropriate to identify that the High Court in M v M (1988) 166 CLR 69 at [76]–[77] made it clear that a Court exercising jurisdiction under the Act should refrain from making a positive finding unless compelled by the evidence to do so that sexual abuse had occurred, however with the consequences that flow to the child and, of course, the father in this case from a finding of unacceptable risk being so serious, the Court is required to carefully analyse and give real and substantial consideration to the facts of the case, and decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk of harm (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34]–[38], and the further authorities mentioned in that discussion of principles).
Before leaving the topic of the legal principles to be applied, I accept some attention needs to be given to the questions of how the existence and magnitude of risk of future sexual abuse is assessed, as directed by the Full Court recently (see Blann & Kenny (2021) 64 Fam LR 120 at [83]–[86]), however I am content to observe that the assessment of risk involves, first, the prediction of the likelihood an event will happen, and, secondly, consideration of the severity of the impact of that event if it does happen (Deiter & Deiter [2011] FamCAFC 82 at [61]).
It is also appropriate to note that in testing the evidence as set out above, the Court is mindful of the Briginshaw v Briginshaw (1938) 60 CLR 336 test, now effectively enshrined in s 140(2) of the Evidence Act 1995 (Cth), which provides that:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.
The effect of the finding the mother seeks is to inevitably lead to a consequence likely to see cessation of or significant reduction in the time X spends with her father (when more likely what the mother seeks will forever sever X’s contact with her father). Further, such a finding will have a significant effect upon the father’s reputation and standing.
I now turn to the evidence that was offered to the Court on this issue.
After the parties had married as earlier noted, the father was charged with a criminal offence relating to an incident in late 2012. The court brief setting out the facts asserted by the prosecution and leading up to the charge relate to contact between a female adult masseur and the father, when the father deposed that the masseur’s version that he had asked her to touch his penis was not true.
The father’s version (not set out in the court brief at Exhibit 7) was that the masseur had inappropriately “touched him”, which he objected to. He denied the charge of, ... when refusing to pay for the massage. When arrested, the father did not have an official badge in his possession, but the police took the view he had discarded a badge before being apprehended. He was convicted of the offence set out above after a trial, to which he pled not guilty.
Although at one stage Mr Larsen for the mother suggested that the circumstances leading up to the offence revealed the father is a person likely to engage in inappropriate sexual behaviour, Mr Larsen sensibly did not in final submissions maintain that position. In the absence of any evidence from the masseur or the transcript of the trial, he was sensible to withdraw such a submission.
Although the specifics of the asserted emotional abuse directed by the father to the mother from commencement of the relationship in 2001 to final separation on 18 April 2017 was denied by the father, there is no doubt that an incident did occur at separation which, after the domestic violence trial in late 2017 – a matter which the father contested – resulted in an order made by the presiding Magistrate in the mother’s favour in late 2017 for five years. There is no evidence that that order has been the subject of any application for contravention or extension. I take into account the existence of that protection order.
Between separation in April 2017 until time commenced pursuant to the consent orders made 20 March 2018 (causing time to commence from 22 April 2018), the father only enjoyed limited time with X – generally supervised and in the presence of the mother.
The mother alleges at paragraph 39 of her trial affidavit that between 22 April 2018 and 23 June 2019, the child made multiple disclosures to both her and the child’s treating psychologist about sexual abuse by Mr Georgene. No particulars were provided by the mother, save for an alleged event in late 2018 (paragraph 41) and early 2019 (paragraph 43), which I will deal with separately. To the extent that the mother claims that during this period disclosures were made to the child’s psychologist, the evidence is that X did not commence therapy (funded by a Victim Assist grant) with Ms N until July 2019. The mother at one stage asserts a neighbour heard a disclosure but no evidence from that neighbour or identity of that neighbour was provided to the Court.
In late 2018, the mother alleges the child returned home after a visit with her father and “immediately told me that her vagina was very sore as daddy had put cream on her vagina”, and that it was “on the inside” of her vagina.
The father says, and I accept, the mother, prior to this visit, had provided him with some cream to be applied to the genitalia of the child because of an infection or rash. He said he did so. The mother, however, thought something had inappropriately occurred before late 2018 and, accordingly, in late 2018 took the child to a general practitioner. A patient health summary (annexure MKS6) is relied upon by the mother. It reveals the mother presented with a concern the child had been the subject of sexual assault. The note does not include any disclosure by the child (despite questioning). A diagnosis of vaginal thrush was made, and a mandatory report made by the general practitioner was made. The Department of Child Safety, Seniors and Disability Services (“the Department”) records reveal that they determined there was “no current evidence to support the child has been sexually abused and, as such, no further action will be taken at this time” (see Exhibit 10).
The mother’s conduct in continuing to permit the child to spend unsupervised time with the father might be construed as demonstrating she had no real concerns and had taken an approach that it had been dealt with by the doctor and the Department’s actions. It seems after this event she made an application for financial assistance, at least in part, on the basis that the child had been the “victim” of indecent treatment by the father (see annexure MK8). On the evidence before this Court, now tested, it is, frankly, difficult to understand how such an assessment was made, and, certainly, I do not feel bound by such administrative assessment or decision.
In early 2019, the mother says the child returned home and told her the father “had put stickers all over her body”. When the mother raised this issue with the father, she said he became aggressive towards her. In cross‑examination, the father initially denied recalling any incident involving stickers but finally acknowledged he may have played a game with the child involving stickers, but any activity was not in any way sexualised behaviour. The mother’s attempts to portray the activity as troublesome to the Court was not successful.
It is not in dispute that the mother left X in the sole care of the father in 2019 so that she could attend a funeral for her father in Country S, her country of birth. Whilst I accept the mother’s hope was to take the child with her, the father refused to consent to travel, and the existence of the Airport Watch List Order made 20 March 2018 (Order 15) prevented travel by the child. However, on the evidence, no concerns were raised by the child with anyone upon the mother’s return – the father saying the time went well and the child enjoyed the extended time with him.
At paragraph 45 of her trial affidavit, the mother gives details of observations and comments made by the child in mid-2019. The alleged sexualised behaviour was followed by what the mother claims was a response to her questions of the child of “it’s very red down there darling, did anyone touch you there?” To which the reply was, “Yes, Daddy did”. The mother says X indicated to the mother that “she felt angry and told her daddy not to touch her” and that “her daddy was tickling her on her vagina”.
At paragraph 46, the mother deposed that “following the disclosure by [X] of sexual abuse by [Mr Georgene] [in mid-]2019, [X] spent no further time with her father.”
As earlier indicated, this was the mother’s unilateral decision, contrary to the consent orders made between the parties that had created a long‑term regime of time between the child and the father, and without any application being brought by the mother to seek to vary or suspend the Orders. The mother in cross‑examination said she was satisfied after this disclosure on 23 June 2019 that the child had been sexually abused by the father – a view that has not altered and, in fact, has become more fixed in her belief since then.
The mother recorded a conversation that she secretly made whilst lying on the bed at night with the child (I infer while the child was trying to go to sleep), commencing at 8.07pm and then at 8.10pm both in mid-2019. A transcript of those recordings is contained in the affidavit I gave the mother leave to file after the trial had to be adjourned in July 2023. In that affidavit filed 3 August 2023, the mother says the conversation relating to the initial disclosure occurred at 7.30pm. I have listened to the tapes and considered the questions posed by the mother.
I am comfortably satisfied the mother was leading the child with, I find, the likely hope of obtaining more information by which her already formed belief about the father sexually abusing the child could be established. The child’s recorded comments are, at times, vague and unclear, even with the questioning of the mother, and referred to terms – as did the other recordings – that the mother has not been able to demonstrate were uttered by the father or relate to any activities that the father may have been involved in with the child. This is a child, the father says, and I accept who enjoys fantasy, makeup and make believe – not unusual for a child who, at this stage, had not quite reached the age of four years old.
Although the mother says (at paragraph 47) she took the child to the doctor “the same day”, there is no direct evidence to support the child going to see Dr O in mid- 2023. I was informed the Independent Children’s Lawyer issued no subpoena to the Q Health Centre. In any event, the mother says the child made “no disclosures” to Dr O. It may have been helpful to know whether the child saw Dr O, which, I presume, was either between 7.30pm and 8.07pm or after the second lot of questioning by the mother.
In any event, the mother at annexure MK6 attaches a surgery consultation note by Dr P, which records that the mother attended Dr O at an afterhours clinic in mid-2023. That would corroborate the mother’s version of making an appointment with the doctor immediately, however in mid-2023 the child made no disclosures to Dr P. Dr P however felt obliged to report the mother’s concerns to the Department. The examination of the child recorded “genitals – erythema to vaginal opening with wide hymen and small tear at vaginal wall, no bruising or bleeding, no discharge”. Dr P was not called as a witness by any party.

In mid-2019, the mother made another report to the Department when the child, the mother says, acted in a sexualised manner when singing a childish song. The mother took the view that the song the child said her father taught her, was suspicious in some way. The words do not raise any suspicion on their text, and I do not regard the song’s words as anything other than normal for a child then nearly four years of age who is exposed to a range of experiences where songs for children are sung. At paragraph 50, the mother says the father must have acted towards the child in a sexualised manner and she was, I find, thankful that the child would be interviewed by police later that day, when all would be revealed.
That day was in mid-2019, when X was interviewed by police. The s 93A interview was played in Court as well. Although the mother says the child was “clearly uncomfortable throughout the interview”, that was not my observation. The child was talkative and very active. Despite given every opportunity by police to make a comment about her father (be it positive or negative), she made no disclosures. She said nothing bad had happened “at daddy’s”; every time denied she had told her mother things “about daddy”, and confirmed she would tell her mother and father if she did not feel safe. It was hardly surprising after this interview that the police decided to take no action and neither did the Department.
Between paragraphs 53 to 57 of her trial affidavit, the mother gives evidence of what happened after mid-2019 and when she was aware the police were taking the matter no further. She did not mention in her trial affidavit the fact that she took the child to police for the second recorded interview a short time later. As I say, that tape was played in Court and, again, the child made no disclosures, however I am satisfied on the evidence that the mother was so convinced sexual abuse had occurred, she recorded at least a number of further conversations she initiated with X, usually at night whilst lying beside the child on her bed.
Her affidavit provided details of recorded conversations at 7.35pm on 15 July 2019, 8.38pm on 19 July 2019, 8.51pm on 31 July 2019, 8.17pm on 4 August 2019 and 4.04pm on 30 August 2019.
The mother’s focus on seeking to get “evidence”, demonstrated by her line and tenor of questioning, gives me no confidence that between 15 July 2019 and 30 August 2019 only five conversations took place but those are the ones the mother has either chosen to record or produce to the Court. During this period, of course, the child was not spending any time with the father at all.
The mother relies upon an unsigned report dated November 2019 from psychologist Ms N. Apart from noting that X unexpectedly saw her father at her school and was “understandably upset when she saw him and left him, as she misses her father greatly”, it is recorded that the mother told the psychologist, and asked the Court to accept, that X merely seeing her father the first time for many months, triggered the child “self‑touching”. I am not satisfied that it is the case. The report of Ms N gives no details of what alleged “disclosures” were made by X to her (which the psychologist says she reported to the Department), summarising the disclosures simply that “over our fourteen sessions, X has disclosed sexual abuse to me, indicating that her father had touched her vagina and bottom, and that she did not like it.”
It is noted that the evidence before the Court reveals that whilst concern notifications were recorded, no actions were taken by the Department. I indicated to Mr Larsen for the mother that it is difficult to put any significant weight on this report from Ms N.
In respect of the evidence before me, the Court accepts that, whilst a parent should not simply ignore a disclosure, and that children of X’s age are rarely able to be precise as to time and place and give clear particulars, what a parent is required to do is to apply a reasonable adult understanding of human behaviour and that behaviour of a partner who has been their intimate partner. I accept these limitations for disclosures made by a young child which in the absence of any forensic/medical evidence corroborating abuse, makes establishing unacceptable risk problematic, even more so when one must apply the principles identified by the High Court.
It was open to the mother when the police and Department indicated their position after conducting proper investigations, as is their statutory duty, to not accept that the father was a risk and, to recommence time and to accept the disclosures of touching were probably, as I find most likely, consistent with innocent and incidental conduct by the father. However, from 23 June 2019 (if not earlier) the mother had formed the view – a view which is immovable. Mr Larsen says such a view is “genuine” but, as I will discuss next when considering whether the mother is able to hold a genuine view, that is thrown into question by the evidence of Dr K.
It was not asserted that the mother has fabricated the allegations, and I make no such finding. Rather, I find, when, really, there was little to support the disclosure being evidence of sexual abuse, the mother adopted the pattern of behaviour in excessively questioning the child to support her adult belief. She may have been supported in her view by the assessment made by Victim Assist section of the Department of Justice in Queensland and/or psychologists and/or other community groups – none of which have had the benefit of hearing the evidence and having it tested, as I have before me.
For the reasons given, I make a finding that the father is not an unacceptable risk of harm to X for sexual abuse. As I refer to more succinctly later in these Reasons, I do not regard him as a risk at all to X – other than his possible naivety in understanding the initial distress the child would exhibit (and feel) if, as he proposes, the child’s residence moves from the mother to him, and then followed by a 12 month moratorium.
MOTHER’S CAPACITY TO SUPPORT THE CHILD’S RELATIONSHIP TO THE FATHER
Up until June 2019, the mother generally supported the terms of the consent Order in 2018. Having formed the view that the father did sexually abuse his daughter, which guided the mother’s behaviour, the Court had not (before my interim Orders of 20 July 2023) compelled the mother to make the child available to spend time with the father in any form, including supervised time. The Orders made 20 July 2023, which resulted in three visits where the child attended – before then expressing no desire to spend further time with the father – became important evidence for the Court to consider because:
(a)between mid-2019 and July 2023, the mother really was not challenged as to her belief system, however her conduct in, I find, not permitting the child to be interviewed or observed by Mr J for a Magellan report; her keenness to assert the father (in the school incident) had breached a protection order in circumstances where the father had a right under the consent orders to attend the school, and her, I find, inappropriate questioning of the child, all demonstrate a concern about whether the mother saw any benefit in the child having a relationship with the father at all;
(b)the notes of the contact centre supervisor and in particular the evidence of that supervisor, Ms M, satisfy me that the interaction between the father and the child was both warm, encouraging and respectful for the three visits. The shows of affection by X reveal her true feelings, in my assessment;
(c)even if I accept the mother’s evidence that the only reason the child gave her after the visit on 19 August 2023 for not wanting to see her father was that she did not like to be hugged by him (and I have some misgivings about accepting that evidence from the mother), that was not a reason for the visit on 26 August 2023 and thereafter not to occur. For the three previous visits, the records show, and I accept, that the father asked if he could have a goodbye hug, which the child voluntarily agreed to. If for some reason the child felt some reluctance about having a hug at the scheduled visit on 26 August 2023, which the child had looked forward to on 19 August 2023 (as the note suggests) the visit could have proceeded without a hug;
(d)although the mother says she regarded her role to be “neutral” and neither to encourage or discourage the visits – which I regard as a telling failure of the mother – her actions, as observed by Ms M, revealed she was actually discouraging the child from spending time with the father by holding the child, so as to convey to the child her view that she did not support or encourage the visits after 19 August 2023; and
(e)even when the mother had the opportunity to read the notes of the three visits that went well, her evidence under cross‑examination when the trial resumed was clear and unequivocal – the child would gain no benefit at all from having a relationship with the father, who is still a risk to her at many levels, in the mother’s view.
The Independent Children’s Lawyer submitted, and I agree, that by the closure of the evidence and hearing and the submissions of her Counsel Mr Larsen (on instructions), it is open to find the mother is unable and unwilling to facilitate X having a relationship with her father if the child lives with her, and further, that the mother’s behaviour from at least June 2019 reveals that the mother poses a risk of emotional and psychological harm to X. I agree and make such a finding.
In respect of the personality profile of the mother, the evidence of Dr K was criticised by and the subject of cross‑examination by Mr Larsen. Some of the somewhat catastrophic conclusions about what could happen in the future are less convincing after the cross‑examination of Dr K, however I am comfortably satisfied that Dr K’s assessment of the mother having a borderline personality disorder should be accepted. The foundation for that diagnosis is clear within her report. I note that no such criticism of the father was made by Dr K in relation to his assessment, one that the father voluntarily funded and attended to. I regard the psychiatric assessment as demonstrating the mother’s lack of capacity by reason of her diagnosis to also separate her beliefs from what is in the child’s best interests – and perhaps without focussed therapy, able to psychologically support the relationship.
The concern with the mother, having received that assessment from Dr K, was that she has done nothing about it. At the very least, it seems to me, that she simply rejects it. Despite, as I have earlier observed, and during the trial did observe, Mr J indicating the mother would benefit from some psychological support and assessment, and Dr K making the same recommendation, there is no evidence the mother has sought any assistance in that regard. In my view, that only strengthens her self-belief that she knows that it is not in the interests of the child to spend time with the father, and there is no reason why she would in any way facilitate it or support the relationship. If the child does not know that is her mother’s position now, she will shortly, as the mother, I find, is unable to either disguise or compartmentalise her beliefs from the child.
PRIMARY CONSIDERATIONS
I will now deal with the relevant s 60CC(2) primary considerations and the s 60CC(3) additional considerations. I am satisfied it would be of benefit to X to have a meaningful relationship with both of her parents. She has been denied any opportunity for that relationship with her father since June 2019. Part of that can be attributable to the fact that no application was brought to the Court to correct the situation but, mostly, it is attributable to the conduct of the mother, in my view. As I will reflect, there are many strengths that the mother may provide to the parenting of this child. Those strengths and her abilities would make, as she has now, the meaningful relationship with X beneficial to the child. However, contrary to the mother’s position, I find the child will benefit from having a meaningful relationship with her father.
Relying on earlier findings, I confirm that I have formed the view and do find that the father does not present as an unacceptable risk of sexual harm to the child. For the reasons which follow, I also do not accept that the father is likely to physically harm the child or neglect the child. I believe that the mother would not physically harm the child or neglect the child, however her fixed beliefs, which I find are certainly unreasonable, do present as a psychological risk to the orderly development of this child. As much is confirmed by the evidence of Mr J, probably on a theoretical basis because he had not had the opportunity to actually observe or interview X for the benefit of his Magellan report.
ADDITIONAL CONSIDERATIONS
The child is too young and, in fact, very little independent evidence of her wishes have been secured so as to provide any weight to those wishes. The best independent evidence of her feelings and wishes, in my view, are the notes of the three visits at the contact centre. The way in which she embraced the opportunity to spend time with her father and engage with him in an appropriate manner reflect positively about her desire to spend time with the father. It is likely that the child, having lived exclusively in the mother’s care, and including a period of homeschooling where the mother did not support the child attending mainstream schooling, suggests that, if asked, the child is likely to express a desire to remain living with the mother.
That is what she has known and, to a large degree, in the absence of any father in her life, the mother has met all her needs, and it would seem on the evidence, adequately and with love and care. The father was prepared to so acknowledge in his evidence, however the context for the wishes of the child is more about her history of care, rather than what is possibly any mature assessment of the respective positions of her parents.
Continuing on from such findings, it is clear that the child’s primary and (other than the father) most secure relationship is with her mother. It is difficult to know if anyone else could claim to have a relationship with the child because this child is not heavily involved in many extra-curricular activities, and the extended family of the mother do not appear to be close or in Australia. Certainly, the father regards it as important for X to develop a relationship with his extended family (particularly the paternal grandmother) who live in Country D.
There is no doubt that the father’s relationship with his daughter has been fractured by the events already referred to in these Reasons. The best evidence of the potential for that relationship to develop is, again, the independent supervisory notes of the contact centre, and although some years ago now, the regular time spent until June 2019. Because of the mother’s conduct in this matter since mid-2019, the father has not had the opportunity to participate in making decisions in relation to the child, spend time or communicate with the child, despite his wish to do so. There is little evidence about what child support, if any, the father pays, however I am prepared to infer that as a result of his limited income – now being derived, it seems, from some form of business – he would only pay modest child support, if at all.
I deal with s 60CC(3)(d) of the Act – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents – at the conclusion of these Reasons. There are some practical difficulties and expenses in the child moving from one household to the other. As indicated, the child is currently attending L School. The father resides in rented accommodation in Region C, but his residence is, apparently, at Town R.
I rely upon earlier findings I have made about the capacity of and attitude to parenting of the parties.
The child is living in a world where her father is a practising Muslim and, as best as I can identify from material, the mother is also a practising Muslim. I am not clear to what extent the way they practise their faith is demonstrated to the child or whether she goes to religious education or a local mosque regularly. I accept the father has a rich history arising from his Country D heritage and that the mother has a rich history arising from her Country S heritage, however in the absence of any real evidence from any other extended family, it is difficult to make any assessment of the cultural traditions which this child might be exposed to in either of the parents’ homes.
I have already identified in these reasons that a family violence order exists and the circumstances around that. There is no evidence that since time ceased in mid-2019 there have been any events of family violence. To the extent that the mother says that she is still scared of the father, whilst that might be the case, there appears no evidence that she has sought to deal with those issues in any therapeutic way. In any event, there is no reason why these parents need to come into physical contact with each other under the orders the Court proposes to make.
Although it is important for the Court to make an order which is least likely to lead to further proceedings, as the Independent Children’s Lawyer has indicated, the nature of this case is such that the Court would be reluctant to make a final order, if there is a change of residence, because predicting what may be in the best interests of the child so far as spending time with her mother, very much depends on how the mother might, in such event, address the issues that have caused a change of residence to be seen as the least damaging option.
PARENTAL RESPONSIBILITY
These parents are unable to communicate at any level. That is not to say they do not have the skills to communicate, however there is a real dearth of evidence to show that they have a willingness to cooperatively communicate. In the circumstances, it seems to me that the exercise of sole parental responsibility should be vested in the parent with whom the child lives.
WHERE SHOULD THE CHILD LIVE?
It is never an easy decision for a Court to change a longstanding residential arrangement, as has been the case here for X. Based on the findings about the mother, however, the Court must consider the father’s proposition that it is in the best interests of the child that she live with him.
This is not by way of penalising or punishing the mother for holding her beliefs as to the father’s abuse of the child or for some of her conduct since mid-2019. That is not the test to be applied. The test is, as the earlier Reasons for this Judgment make clear, whether the orders I make are in the best interests of the child, which is the paramount but not the only consideration. I am of the view that it is in the best interests of the child to change the residence of the child because a failure to do so, on the evidence of this case, is more likely to lead to this child having no relationship at all with her father, whatever orders the Court was to make.
I say that because the mother does not support anything other than limited time with the father, and that was not, in my view, a genuine proposition but rather, something said at the last moment as a fallback position if the Court was contemplating a change of residence. However, the father’s proposition for the child live with him is not without its difficulties. He lives in a household with another person. Although he has lived in that household for some time, the Court knows little about that person and how the child’s residence will be managed within the household. The father gave some evidence about that which cannot be corroborated or tested really.

I think the father seriously underestimates the effect a change of residence may have, at least initially, on the child. This presents as the major concern about changing residence.
Although Mr J did not have a chance to observe the child, everything before the Court suggests that she is in many ways well settled living with her mother. Changing her residence will be a major change for her and one which I find is likely to manifest in significant initial distress and anxiety. That initial distress and anxiety will not be entirely met by a loving and thoughtful father, which I find the father in this case to be. It is not as simple as giving a child a hug. It will be difficult for the child to understand why a change of residence has occurred. It is important, and the reason why the Court makes orders for the reasons for change of residence to be explained to the child by a Court Child Expert, is that this child may well think she has done something wrong to cause this change of residence.
The change of residence will, most likely, in time, involve another change of school but as the child has only been at the L school for the second half of 2023, that is not, in my view, an insurmountable problem. Luckily, X does not appear to be a child with additional needs. She has not been diagnosed as on the spectrum or having ADHD. There is no evidence she is having behavioural problems at school. The father hopes to involve the child in the wider community through sport and extra-curricular activities, something which the mother does not appear, on the evidence, to currently facilitate.
The child will need to, perhaps, develop new peers if she changes school. It is not clear that she has already developed peers in any one of the locations she has been at school, kindergarten or through homeschooling. In many ways, on the evidence, I find the child has been somewhat isolated from her community. It is not clear, but I accept that the practice of the Muslim faith in the father’s household is important, and it is likely that she will, as a result, have more involvement with the teachings of Islam than may have been the case to date. I do not sense that the mother opposes the child being taught the traditions of Country D or the Islamic faith.
Because of the uncertainties about the father’s living arrangements and the likely distress to the child (which I am confident the father will do his best to ameliorate), the easier option might have been to give the mother, now that findings have been made, the chance to show her capacity to support the child’s relationship with the father. I have given retaining the status quo, so far as residence with the mother, serious consideration, but have ultimately decided that the mother’s behaviour, and particularly her evidence, is such that I have no confidence at all that she will learn from the past, or even accept the Court’s determination, without some genuine attempt through therapy to gain some insight into the harm she has, and would on my assessment, continue to impose upon this eight year old girl. Frankly, leaving this decision longer would only make it harder for the child.
It would be the optimal “high water” mark for a workable share of care or co-parenting to be created – even though that has often been the father’s previous position. I would not however say that a more inclusive care arrangement will never be possible – and I speculate, in time, there is a prospect that X might even think it is a good idea (or at least “fair”).
However, hoping a better outcome for this child does not mean it will occur without, in my view, the mother genuinely understanding her past behaviour and attitude in the future. Until then, a change of residence is the best option.
I indicated to the parties during the course of final submissions that a moratorium of 12 months or, in fact, of any period of time would be problematic in this case. As Mr J observed, a moratorium can be useful if there is evidence that such a moratorium would have the effect of causing the parent who would not then be seeing the child to revisit their position, get treatment and come back to the parenting role with a renewed and different perspective. That could happen with this mother but there is no guarantee that it will happen, such are her entrenched views, however, on balance, I agree with the Independent Children’s Lawyer that rather than a moratorium, after a short period of time – which will effectively be the length of the school holidays which will end in January – the mother’s time with the child should resume but on a supervised basis for a period of time.
The matter will then come back to me in approximately six months’ time, after which I will assess how the matter should be further determined in relation to the child’s time with the mother. The orders which I make, which appear at the commencement of these Reasons, although very similar to those proposed by the Independent Children’s Lawyer, have some small variations which take account of these additional findings. When discharging all previous parenting Orders, I did not wish the Airport watch list orders to be removed, and regard the best way of ensuring the restraints continue, at least on an interim basis, is to reimpose the order as has been in place since 2018.
For the reasons which I have now expressed in these Reasons for Judgment, the orders which appear at the commencement of this Judgment are in the best interests of X at this time, and it is in the best interests of X that the Court reserves the capacity to review and, hopefully, expand the time that the child spends with the mother after a period of limited supervised time in the hope that the ultimate orders will allow this child to have a meaningful relationship with both parents, to be achieved.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated:       11 December 2023
APPENDIX ONE
1.   That all previous parenting orders be discharged.
2.   That the Father have sole parental responsibility for the major long-term decisions for the child X born 21 August 2015 but in the exercise of his sole parental responsibility he must inform the Mother of any major, long-term decision that he has made within five (5) days of doing so.
3.   That notwithstanding the provision of Order 2:
(a)The Mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

4.   In the event of an emergency, the parent the child is with will send a text message to the other parent informing them that there is an emergent situation and then telephone the other parent providing them with all .relevant information including details of treating practitioner and/or hospital with the notifying parent. to send an email within 24 hours confirming what has taken place.
Living Arrangements
5.   That the child live with the Father.
6. That the mother bring the Child to the Child Dispute Resolution Centre at the Federal Circuit and Family Court building in Brisbane on XXXX date for the purpose of a Court Child Expert explaining to the Child the orders made by this Court. That pursuant to section 65L of the Family Law Act 1975 (Cth) a Court Child Expert shall explain these orders to the child and the parents are restrained from explaining or discussing any orders with the child.
7.   The Father shall collect the Child from Child Dispute Resolution Centre at the Federal Circuit and Family Court building in Brisbane at the conclusion of the Court Child Expert explaining the Orders to the Child.
Parent’s Communication
8.   That for the purposes· of communicating information between the parents the Mother and the Father shall:
(a)communicate by telephone matters of an urgent nature in relation to the child;
(b)communicate by email about day-to-day matters

9. The parents are to keep each other informed of:
(a)any medical problems or illnesses suffered by the child whilst in their care;
(b)any medication that has been prescribed for the child;
(c)any other matter relevant to the child's welfare.

10. That the parents advise each other of their current contact telephone numbers and inform the other parent of any changes to these details within seven days of such change occurring.
Schooling
11.

.

That by commencement of Term 1, 2024, the Father will provide the Mother with details of the child’s school and ensure that the Mother’s details are provided to the school including on any enrolment form.
12. These Orders authorise each of the parents to contact the child's school and obtain information about the child's school reports, progress, sch0ol letters, school events and school photos at that parent’s costs.
Medical
13. That the parents inform each other in writing as soon as practical of any specialist medical appointments with any specialist medical practitioner, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as ‘consultant’) in relation to the child.
14. That these Orders authorise both parents to obtain any reports or other information in relation to the child directly from the child's treating medical or allied health practitioner at the requesting parent's cost.
15. That if a child is hospitalised or receiving specialist medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
16. That the Father shall make arrangements for the Child to attend upon a GP within 7 days of the Child coming into his care for the purpose of the GP assessing whether to refer the Child for psychological therapy and in the event that the GP makes such referral that the Father shall promptly act upon such referral and arrange such therapy as the GP and/or the therapist shall recommend for the Child. The father shall provide to the GP and the therapist a copy of these orders and the reasons for Judgment.
Other Orders
17. That during the time the child is with either parent, the parents shall:
(a)Actively promote the child's relationship with the other parent and speak of the other parent respectfully;
(b)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not-denigrate or insult the other parent in the hearing or presence of the child and shall remove the child from the presence and hearing of any third party who is doing so;
(d)Not denigrate or insult the other parent on social networking media or sites, and
(e)Not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence of the child and use their best endeavours to ensure that others do not discuss the contents of this Order, these proceedings or parenting issues in the hearing or presence· of the child.
(f)Not use any form of physical discipline on the child;
(g).Not smoke in the presence of the child nor in confined spaces or a vehicle in which the child is located;
(h)Remove the child from the presence of any person who is using or under the influence of any illicit substance.

18. Pursuant to Section 121 of the Family Law Act 1975 (Cth), leave is granted to the parents and legal representatives to provide a copy of these Orders to:
(a)any school, education institution, or care provider;
(b)any treating medical practitioner, hospital or health care professional for the parents or the child;
(c)any government department or instrumentality;

that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these-Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).

UNTIL FURTHER ORDER IT IS ORDERED
19. That commencing on a date one month after the date at which the Child commences living with the Father in accordance with Order 5 herein the Child shall spend time with the Mother on one day in each weekend at B Contact Centre supervised childrens contact centre, for 2 hours at times that the Contact Centre can accommodate.
20. That the parents are to be equally responsible for the payment of all supervised costs in relation to spending time with the child.
21. That commencing on a date 2 weeks after the date at which the Child commences living with the Father in accordance with Order 5 herein the Child shall communicate with the Mother by video call on 2 occasions in each week at times to be agreed between the parties, but in default of agreement such call to commence between 6 and 6.30 on each Tuesday and Thursday with the Father to initiate the call. The Father is not required to provide the Child with privacy during such calls, and in the event that the Father considers that the Mother is in breach of the .provisions of Order 17 he shall terminate the call.
22. That until further order the Mother be and is hereby restrained from attending at any school at which the Child attends or other place where she knows the Child is or may be.
23. That this matter be listed for a further hearing in 9 months’ time limited to the issue of whether the Childs time with the Mother should change from that provided for at Orders 19 and 20 herein and whether the injunction at Order 21 herein should continue and for that purpose;
(a)The parties shall file and serve, 21 days before the date on which this matter is to be further heard, a Minute of any Order sought by them.
(b)The parties shall file and serve, 21 days before the date on which this matter is to be further heard, one affidavit deposing to the progress of the child since these orders were made, and in the case of the Mother, what therapeutic engagements she has engaged with since the date of these orders, including, if so advised, a report from each treating professional she has engaged with.
(c)The Mother shall provide to any treating professional engaged by her a copy of these orders and the reasons for judgement
(d)The ICL shall be permitted to issue a subpoena to the B Contact Centre Centre for a copy of their records relating to this family

24. The ICL shall have liberty to apply on the giving of not less than 3 days’ notice.
NOTATION
A.In the event that the Mother seeks a change to the arrangements for supervised time· between herself and the Child the Court would be assisted by evidence that she has engaged with treating professionals and that that she has attained insight into the impact of her previous conduct and that if the Orders for supervised time were changed to provide for unsupervised time between the child and the Mother that the Mother has insight and strategies that indicate she would comply with these orders without supervision

File number(s):	BRC 16543 of 2020
Judgment of:	BAUMANN J
Date of judgment:	11 December 2023
Catchwords:	FAMILY LAW – PARENTING – Assessment of risk – Where the mother contends the father has sexually abused the child and is an unacceptable risk of harm to the child by way of sexual abuse – Where the Court finds the father is not an unacceptable risk of harm to the child – Where the Court finds the mother is unable and unwilling to facilitate the child’s relationship with the father if the child lives with her, and that the mother poses a risk of emotional and psychological harm to the child – Final orders made for change of residence to the father’s care – Interim orders made for a moratorium of time with the mother for one month, and thereafter supervised time to commence
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA
Cases cited:	Blann & Kenny (2021) 64 Fam LR 120 Briginshaw v Briginshaw (1938) 60 CLR 336 Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 Stott & Holgar and Anor [2017] FamCAFC 152
Division:	Division 1 First Instance
Number of paragraphs:	92
Date of hearing:	19 & 20 July and 8 & 9 November 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Larsen
Solicitor for the Applicant:	Freedom Law
Counsel for the Respondent:	Mr Clutterbuck
Solicitor for the Respondent:	Turnbull Mylne
Counsel for the Independent Children's Lawyer:	Ms Earl
Solicitor for the Independent Children’s Lawyer:	Aylward Game Solicitors

BRC 16543 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KORI Applicant
AND:	MR GEORGENE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	11 DECEMBER 2023