Kruse & Boysen - [2025] FedCFamC2F 523

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kruse & Boysen [2025] FedCFamC2F 523

File number(s): CRC 150 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 19 March 2025

Catchwords: FAMILY LAW – Parenting – Parents separated shortly after birth of child – Where father initially sought orders for 2-year-old child to live with him and spend time with the mother – Father changes orders sought on third day of trial – Father then seeks joint decision making, child live with mother and spend time with father in graduated regime – Where mother facilitated time between father and child following separation – Where father made unreasonable demands for time whilst child still breastfeeding – Serious allegations made by father against mother and mother’s friend – Transactional nature of allegations raised by father against mother –– Father’s evidence found to be unreliable – Orders made largely as sought by mother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 114AB

Cases cited:
Fox & Percy (2003) 214 CLR 118

Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200

Martoulis & Valas [2022] FedCFamC2F 1781

Willmore & Menendez [2022] FedCFamC1A 73

Division: Division 2 Family Law

Number of paragraphs: 90

Date of hearing: 17 – 19 March 2025

Place: Coffs Harbour

Counsel for the Applicant: Mr Coe

Solicitor for the Applicant: Beneke Legal Pty Ltd

Counsel for the Respondent: Mr Finch

Solicitor for the Respondent: Wigmore O’Shannessy Solicitors & Attorney
ORDERS

CRC 150 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KRUSE

Applicant

AND:
MR BOYSEN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS ON A FINAL BASIS THAT:
1.In so far as these orders refer to an obligation to do anything in writing, for the purpose of these orders the term “in writing” means by the communication tool known as “Appclose”, where that App is available, and if it is not by text message or email, and in the case of email advise the other party by text message that an email has been sent.

BY CONSENT:
2.That within fourteen (14) days of the date of these orders the Father, Mr Boysen (‘the Father’) enrol in and complete an in person:
2.1Circle of Security Program; and
2.2Men’s Behavioural Change program; and collectively referred to as ‘the Programs’.

3.The Father provide proof of enrolment in the programs to the Mother, Ms Kruse (‘the Mother’) upon enrolment, in writing and the Father provide proof of completion of these programs to the Mother upon completion in writing.
4.That the Father be and is restrained from reporting any complaint or concern about the Mother, and/or the welfare of the child, X born in 2022 (‘the child’) to Police and/or any child welfare authority or child care centre or kindergarten or school the child attends, without beforehand having:
4.1Taken legal advice; and
4.2Provided the Mother in writing with details of any complaint or concern; and
4.3Provided the Mother with an opportunity to attend mediation to deal with his complaint or concern.

THE COURT ORDERS THAT:
PARENTAL RESPONSIBILITY FOR LONG TERM DECISIONS
5.That the Mother, Ms Kruse, (‘the Mother’), have sole parental responsibility for long-term decisions relating to X born in 2022 (‘the child’).
6.That at least two weeks prior to making any significant decision (or as soon as possible if it is not possible to allow this time frame) relating to any decisions about long term things for the child, the Mother shall:
6.1Contact the Father, Mr Boysen (‘the Father’), in writing setting out the decision to be made and any other information relevant to that decision along with what she believes is her position in relation to the issue and seek the father’s views on the subject;
6.2Within one week the Father respond in writing setting out his views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
6.3.Advise the Father in writing of the decision she has made within three (3) days of making that decision.

LIVING ARRANGEMENTS
7.That the child live with the Mother.

SPENDING TIME ARRANGEMENTS
8.That the child spend time with the Father as follows:

Stage 1
8.1For a period of at least three (3) months from the first available time, and provided the Father has again enrolled in the Circle of Security program, and enrolled in a Men’s Behavioural Change Program as provided in these orders, the Mother and the Father do all acts and things to cause and ensure that the child spend time with the Father at the Supervised Contact Centre known as “B Contact Service” (‘B Contact Service’) from 9am to 11am each Saturday morning, or such other time on each weekend as directed by the person in charge of B Contact Service (‘the Director’), and comply with all lawful directions of the Director (‘the 3 months of supervised time’).
8.2And the parents of the child do all acts and things necessary to forthwith apply to B Contact Service to facilitate these orders and the Father be responsible for the costs of enrolment and attendance at B Contact Service.

Stage 2
8.3.From the end of the 3 months of supervised time and provided the Father has provided proof in writing that he has again enrolled in the Circle of Security program and enrolled in a Men’s Behavioural Change Program, then provided the Father’s mother, Ms C, has signed a written undertaking, in the usual form that she be in substantial attendance, that is to be in the presence of or nearby to the child while the Father spends time with the child including at changeover, then the child spend time with the Father from 9am to 4pm on Sundays each weekend, on those occasions that the Father’s mother is available to be in substantial attendance, for a period of three (3) months (‘the substantial attendance time’).

Stage 3
8.4That from the end of the substantial attendance time and provided the Father has enrolled in the Circle of Security program, and enrolled in a Men’s Behavioural Change Program as provided in these orders, the child spend unsupervised time with the Father from 9am to 4pm on Sundays on each weekend.

Mother’s election to cancel
8.5On three (3) separate occasions in any one (1) calendar year, at the Mother’s election, whether for reason or not, the Mother be and is permitted to cancel the child’s spend time arrangements provided no less that one (1) months’ notice is given to the Father of her intention to cancel that time as provided in the preceding order.

Other time as agreed
8.6That the child spend other time, with the Father as agreed in writing.

SCHOOL HOLIDAYS
9.That, unless otherwise agreed between the parties in writing, the child live with the mother and spend time with the Father pursuant to these Orders during school holidays.

SPECIAL OCCASIONS
10.That the child’s time with the Father be suspended and the child spend time with each parent on special occasions as follows.

Father’s Day
10.1On the weekend of Father’s Day, the child is to spend time with the Father from 9.00am Father’s Day until 4.00pm Father’s Day.

Mother’s Day
10.2If the time the child is to spend with the Father falls on the same weekend as Mother’s Day, that time is to be suspended.

Christmas Day
10.3.On Christmas Day in 2025, the child is to spend time with the Father from 11.00am to 4.00pm.
10.4.From Christmas Day 2026 and thereafter:
10.4.1.In even numbered years -
10.4.1.1The child is to spend time with the Father from 10am Christmas Eve to 4pm Christmas Eve;
10.4.1.2 The child is to spend time with the Mother from 4pm Christmas Day until 4pm Boxing Day.

10.4.2.In odd numbered years -
10.4.2.1.The child is to spend time with the Father from 10am Christmas Day to 4pm Christmas Day; and
10.4.2.2.The child is to spend time with the Mother from 4pm Christmas Day until 4pm Boxing Day.

CHANGEOVER
11.For the purpose of the child spending time with the Father changeover of care is to take place at McDonald’s Suburb D at the place nominated by the Mother that is within the environment of McDonalds.

FATHER’S COMMUNICATION WITH THE CHILD
12.The Father communicate with the child by telephone each Wednesday night, with the Mother to initiate the call between 5.30pm and 6.00pm.

COMMUNICATION BETWEEN PARENTS
13.That the Mother and the Father are to communicate in relation to the care, welfare and development of the child by way of AppClose parents parenting app.
14.However, in the case of an emergency they are to telephone the other parent as soon as practicable.

SHARING CONTACT DETAILS
15.That each party keep the other informed of their current residential address, home telephone number, mobile telephone number and email address and notify the other of any change to any of those details, either prior to or within twenty four (24) hours of the change occurring.

SCHOOL EVENTS AND INFORMATION
16.That the Mother and Father do all acts and things to authorise each of them to receive from any day care centre, kindergarten, pre-school or school that the child attends, any information regarding the child that she or he requests, including but not limited to school reports, correspondence, school notices, invitations to attend parent/teacher interviews and notice of other activities to which parents are invited to, and school photographs and order forms, and are at liberty to provide a copy of this order to any such day care centre, kindergarten, preschool or school.
17.That the Mother and Father do all acts and things to authorise each of them, subject to any lawful direction of any school or kindergarten to be permitted to attend any school or kindergarten activities to which parents are invited, including but not limited to parent/teacher interviews (provided they can be conducted separately), assemblies, excursions, concerts and sports days.
18.That each parent provide to the other a copy of any certificate/award received by the child, while the child is in that party’s care.

EXTRA-CURRICULAR ACTIVITIES
19.That the Mother and Father do all acts and things to authorise each of them to be at liberty to attend the child’s extra-curricular activities and any competition/other events associated with such activities.
20.That each party notify the other, as soon as practicable, of any changes to the child’s extracurricular activities, which might affect the other party’s involvement in such activities.
21.That both parents are restrained by injunction from enrolling the child in any extracurricular activity that requires the child to attend practice, rehearsals, competitions or other events during periods of time that the child is to spend time with the other parent pursuant to this order, without the prior written consent of the other parent.

MEDICAL ISSUES
22.That each parent must notify the other, as soon as practicable, of any accident, emergency, significant injury or serious illness affecting the child, which occurs whilst the child is spending time with him or her.
23.That each parent must advise the other of any medical treatment received by the child, whilst the child is spending time with him or her, such advice to include the name of the treating medical practitioner, the nature of the treatment and if medication is prescribed the name and prescribed dosage.
24.That each parent must notify the other, no less than seven (7) days in advance, of any appointment made for the child to attend upon a specialist medical practitioner and both parties shall be at liberty to attend any such appointment.
25.That the Mother and Father do all acts and things to authorise each of them to be entitled to receive from any medical or other health care practitioner, upon whom the child attend, any information regarding the child that she or he requests and are at liberty to provide a copy of this order to any such practitioner.

RESTRAINTS
26.That Mother and Father are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child or any of them, and from permitting any other person so to do.
27.That the Mother and the Father must not abuse, harass or intimidate the other parent.
28.That Mother and Father are hereby restrained from discussing any issue in dispute between them, including these proceedings, with or in the presence or hearing of the child or any of them and from permitting any other person so to do.
29.Both parties are restrained from:
29.1Using any form of physical discipline against the child.
29.2Leaving the child unattended or in the care of an individual under the age of 16 years.
29.3.Communicating any information intended for the other parent through the child.

INJUNCTION - SECTION 68B OF THE FAMILY LAW ACT 1975 (CTH)
30.Pursuant to Section 68B of the Family Law Act 1975 (Cth), the Father must:
30.1Not commit family violence against the Mother;
30.2Be of good behaviour towards the child and not commit family violence against the child;
30.3Not approach within 100 metres of the mother, or remain at any place where the mother is present, except for the purposes of attending a contact centre or changeover to spend time with the child or to attend any activity of the child authorised by these orders;
30.4Not attempt to locate the Mother, other than as permitted by Court Order; and
30.5Not contact the Mother for any purpose, other than as permitted by Court Order.

LEAVE TO PROVIDE THESE ORDERS & REASONS TO OTHERS.
31.That the Father and Mother have leave to provide to his or her treating health professionals a copy of these orders and reasons and to his or her parents and siblings.
32.That the Mother be at liberty to provide a copy of these orders and reasons when available to any child care centre the child attends and/or to Ms E (‘Ms E’) and authorise Ms E to provide a copy of these orders and reasons to her treating health professional/s and if she wants to, to any prospective employer, employment agency or family member, provided these orders and reason not be published in or on any newspaper, social media program or electronic media.

DRUG & ALCOHOL ORDERS
33.That during any period of time which the child spends with him, the Father is hereby restrained from ingesting, consuming, using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, except for:
33.1any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with the prescription; and
33.2.any over-the-counter legal medication or pharmaceutical substance ordinarily sold in supermarkets, and taken or used by the Father strictly in accordance with the directions appearing on the packaging of that medication or pharmaceutical substance.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence and any parts omitted by limitation of time, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Kruse & Boysen, following a three-day hearing here on circuit at Coffs Harbour, I am satisfied that it is in the best interests of the child concerned to make the orders set out above.
My reasons for making those orders are as follows.
Background
The applicant mother, Ms Kruse (‘the Mother’), was born in 1991, is 33 years old, and is a part-time community worker. The respondent father, Mr Boysen (‘the Father’), was born in 1990, is 34 years old, and is a tradesperson by occupation. The parties are fortunate to be the parents of the child X (‘X’), who was born in 2022, and, at this time, is not quite three years old.
The parties lived together, or had an intimate relationship, from about 2020, and became engaged to be married in 2020. They lived together for a very short time. Soon after X was born, in 2022, the parties separated and the Father ceased to live at the home of the Mother and her family. These proceedings were issued by the Mother on 21 April 2023.
Documents relied upon and exhibits tendered
The documents relied on by the parties at the final hearing are set out in Appendix 1, and the exhibits tendered at the final hearing are set out in Appendix 2.
Interim arrangements
When the proceedings commenced, the Mother pressed for orders that the Father spend only formally or professionally supervised time with the child. That application was subsequently varied, and, in the meantime, interim orders were made for the Father to spend time, initially supervised time, and then unsupervised time with the child.
28 June 2023 orders
By consent, it was ordered on 28 June 2023 that the child spend supervised time with the Father for two hours once per week at a contact service in City F, with the parents to share the costs of such service.
25 October 2023 orders
On 25 October 2023, by order of the Court, the child’s time with her father was to progress to three hours each Saturday, supervised by the paternal grandparents in their home, for a period of 10 weeks. From the conclusion of those 10 weeks, the Father’s time was to progress to six hours each Saturday.
13 December 2023
Consent orders were made on 13 December 2023 following a Family Dispute Resolution Conference between the parents which set out the following stages for progression of the Father’s time:
a.Stage one – each Saturday from 1pm to 4pm with such time to be supervised by the paternal grandparents at their home.
b.On Christmas day in 2023 from 9am to 12noon supervised by the paternal grandparents.
c.Stage two – From 6 January 2024 each Saturday and Sunday from 10am to 4pm.
d.Stage three – From 13 April 2024 each Saturday and Sunday from 9am to 6pm.
e.Stage four – From 29 June 2024 in one week on Saturday and Sunday from 9am to 6pm; and in the off week on Saturday and Sunday from 9am to 6pm and Monday from 9am to 12noon.
f.Stage five – From 3 August 2024 in one week on Saturday and Sunday from 9am to 6pm; and in the off week on Saturday and Sunday from 9am to 6pm and Monday from 9am to 2pm.
7 November 2024
By consent, on 7 November 2024, “stage five” of the 13 December 2023 orders was varied to provide that, from 6 December 2024, the Father spend time with the child each week on Saturday and Sunday from 9am to 6pm, and each alternate week on Friday from 1pm to 5pm.
Orders sought by the Father

The Father’s case, as set out in his minute of orders sought, which is on the court file described as a “submission”, is as follows. In substance, the Father sought orders that the child live with him and spend time with the Mother in a gradually increasing regime. The orders sought by the Father also had an alternative proposal – that, in the event the Court found that the child was not at risk living with the Mother, then the Father pressed that the child would live with the Mother and spend time with him, unsupervised, in a graduating program leading up to a shared-care-type arrangement. The Father also sought, in that circumstance, that there be an order for equal shared parental responsibility in regard to decision-making. At all times, the Mother has pressed for an order that she have sole parental decision-making.
APPLICABLE LAW
Before I come to those orders, I will refer to and recite section 4AB, being the definition of “family violence”, and sections 60CA and 60CC of the Family Law Act 1975 (Cth) (‘the Act’).
4AB               Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...
…
60CAChild’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC            How a court determines what is in a child's best interests[1]
[1] This “new” section 60CC came into operation on 6 May 2024.
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a)      consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)       the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)       any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
…
…
In this case, my attention was also brought to the authority of Willmore & Menendez [2022] FedCFamC1A 73 (‘Willmore & Menendez’) and also Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200 (‘Lainhart & Ellinson’).
Because of orders pressed and because of the fact that there is an application by the police for an intervention order against the Father pending, I also must take account of section 114AB of the Act which is as follows:
114AB Operation of State and Territory laws
(1)Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.
(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
Reliability of the parties’ evidence
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy (2003) 214 CLR 118 (‘Fox v Percy’) observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
The context for those observations in Fox v Percy was that, at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the wrong side of the road for the Kombi Van. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision with the horses. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that court’s findings.
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
I refer again to the observations in Fox & Percy, as well as section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), which provides:
140                Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(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.
For convenience, I refer to and repeat my observations in Martoulis & Valas [2022] FedCFamC2F 1781 at [25].
I am not satisfied that the Father’s evidence is reliable. Examples include the following:
·The disparity between his affidavit version at [77] of “I observed her (acts consistent with sexual abuse if done with a sexualised intent)” to a baby, and his oral evidence that he did not see those acts, but inferred they occurred from things he said he heard, in the context of making very serious allegations of sexual abuse of another child against the Mother;
·The disparity between his affidavit account at [79] that the sexual abuse allegation was reported to Police but “there was an investigation, but it was closed as the report could not be substantiated” and his oral evidence that he thought the investigation was ongoing when questioned about his report to the employer of the Mother’s close friend;
·The disparity between his affidavit evidence at [84] that he did not accuse the Mother’s friend of sexual abuse, “but I did say she observed the incident… (alleged at [77])… and nothing about it” and his allegation to the employer of Ms E (the Mother’s friend working at the child’s childcare centre) that Ms E was a “known paedophile” and “currently going through a court case in relation to associated offences” and when a search of court records demonstrated “there are no matters at all linked to [Ms E]”[2]; and
·The entirely uncertain nature of his oral evidence about the alleged video consistent with his sexual abuse allegations that had not been produced hitherto and could not be located when he recently searched for it because he had lost his mobile phone.
[2] Annexure O to Mother’s affidavit at page 106/145.
I am also not satisfied that the Father has carefully read and apprehended his own material. I infer that, in the course of busy working days, he looked at the material carefully prepared by his solicitor and proceeded to simply go with it rather than carefully engage, word-for-word and concept-for-concept with it. That, I am satisfied, was partly because of the work demands upon the Father, partly because of his difficulty with literacy skills, and partly because of the potential for dyslexia and, I infer, the difficulty of checking long and complex documents, like an affidavit of evidence in chief, on a mobile phone.
The Mother was an impressive witness. She was careful and answered responsively to questions asked and propositions put to her. Her account of events after the end of the parents’ relationship was corroborated at significant points by the nature and tone of the text message communication between the parents. Her oral evidence and the manner of answering questions had a verisimilitude to it.
I do not accept her evidence as to the timing of the events described as paragraph 136 of her affidavit where an event is alleged to have occurred “in early June 2023” when the said to be corroborating text message self-evidently occurred on 22 May 2023[3] and does not state what it is said to state. But otherwise, I accept the Mother’s evidence and found her to be a reliable and careful witness whose demeanour in the witness box that I observed gave her evidence a verisimilitude.
[3] See exhibit M2.
SOME SIGNIFICANT EVENTS AND CONTROVERSIES
There are a number of significant events that inform the orders that are necessary to provide for the best interests of X.
The affair and no illicit drugs
Back in 2021, the unusual circumstance occurred of a woman (I infer a stranger to the Mother, but not to the Father), contacted the Mother’s family alleging that she had had a sexual relationship with the Father during the course of the relationship of the Mother and Father. The Father’s response in text messages, when pressed (unsurprisingly) about what was going on, was that he had not had an affair or sexual relations with that woman, but, rather, had approached her for the purpose of purchasing illicit drugs, and that the woman had pressed him for sexual relations with him instead of payment. It was ultimately demonstrated (if it needed to be demonstrated) that that implausible account did not actually occur, when the Father admitted in the witness box that he had made that up as a cover for the sexual congress that he had had with that woman.
It is unsurprising that the Father lied about having a sexual affair, with a woman other than his partner, during the relationship. The implausible attempt at covering up account is unusual.
It is also clear that from the Father’s perspective, and his account in his affidavit, that he was himself troubled by the close nature of the Mother’s relationship with her Mother, with whom she lived and, I infer, had lived for a long time. Why the Father was so troubled about that relationship is not clear to me on the evidence I have.
Text messages obliquely contemplate suicide
Soon after the affair of sex but no illicit drugs, the parties separated in the sense of the Father leaving the home. The parties have chosen to litigate this matter without detailed psychological or psychiatric examinations which would be present in other cases, and I am grateful to them and their lawyers for the relative efficiency with which they have conducted this litigation. But, but soon after the parties ceased to live together (and it must be borne in mind that this is mere weeks after the child was born), the Father communicated to the Mother a text that commenced with:
Sorry for everything hope you have a great life with her and [teach] her everything you can that I liked and wonted [sic]…[4]
[4] See annexure B of the Mother’s affidavit filed 27 February 2025.
It is clear that, whilst not expressly or directly threatening suicide, the text message raises the concept of the Father not being around and the overwhelming inference appears that the intention of the writer of the text message, the Father, was that he intended the Mother and her family to worry and be concerned that, following separation and his “heart breaking” that he was contemplating ending his life. The Father’s evidence, and his case, was that he had done no such thing, either directly or indirectly. Whilst I accept his evidence that he did not directly say, ever, “I will kill myself,” or words to that effect, nonetheless he raised that prospect soon after separation at a time when he was seeking to persuade the Mother to reconcile their relationship with him.
The Mother’s response to that was empathetic and an attempt to persuade the Father against any such application or intention. So much is clear from the following excerpt from the text communications between the parents:
Father:But if I’m here I hurt you and I didn’t want to [,] what if I hurt [her] and she hates me
Mother:You are not gonna hurt her and she’s not gonna hate you
You need to stop being so hard on yourself
Father:I hurt you and I didn’t [want] to now you don’t like me
…
Rum isn’t helping I miss you to so much it hurts so much and as much as I love you both I carnt [change] your mind I’m sorry I [turned] in to the one thing I didn’t won’t to happen but if I’m not here I won’t hert you no more and I won’t be a s**t dad love you so much can you please make sure that [X] [knows] the good parts of me and that I love her with everything I had
Mother:You are not a s**t dad and you are gonna make sure she knows everything about you
Stop drinking
You think if your not here that’s not gonna hurt her more then anything??
The Father had referred to “alcohol isn’t helping” him, and the Mother was concerned at his behaviour whilst affected by alcohol.
Allegations start
From that unfortunate start of the parents’ life apart from each other, and as parents for X, things did not get better. Over the period June, July, August and September, the Father sought information about where the Mother was and, from about the middle of 2022, commenced to make allegations and insinuations that the Mother and/or her mother had done significant things wrong, or illegally.
Sexual abuse allegation
By August of 2023, the Father’s statements to the Mother included the allegations that the Mother had committed some sort of sexual abuse of a child (not X). This is alleged to have occurred some roughly two years previously. In his affidavit, the Father alleges that he had raised the matter when he observed it and complained to the Mother about it. The Mother’s evidence is that there was no such incident, no such complaint, and that she never knew of any such allegation during the entire time that the parties continued their relationship thereafter. The Father’s allegations were as follows:[5]
77.When [Ms Kruse] was pregnant her friend [Ms G] was at [Ms H]’s home with her baby, […]. [Ms Kruse] changed her nappy and while she was lying on the floor, I observed her place her finger in the baby’s vagina. I said to [Ms Kruse] “That is wrong. Why did you do that?” [Ms Kruse] replied to me “I only went one knuckle deep.” I said to her “What the f**k? It’s a baby!”.
[5] Affidavit of the Father filed 2 March 2025.
I have not included this allegation as actually occurring in 2021 as I do not accept the Father’s evidence that he said anything to the Mother back in 2021 complaining about anything that might relate to an allegation of sexual abuse.
Ultimately, the allegation of sexual abuse made in these proceedings and on affidavit, and that had been repeated from time to time in vulgar text messages directly to the Mother over the years, was to the effect that the Mother had, in a sexualised manner, sexually penetrated a child of some six, seven or eight months of age in the presence of the Father, the child’s mother, and the Mother’s mother, and that this occurred whilst changing a child’s nappy. When those circumstances are recounted, the implausibility of sexual abuse of a child – heinous though it always is – occurring by a Mother against her best friend’s child, a mere babe, in the presence of the Father, that child’s mother and the Mother’s mother, it is immediately apparent how implausible and unlikely that chain of events is. Nonetheless, that is what the Father alleged from time to time in text messages to the Mother.
Alleged sexual abuse not witnessed but inferred
In the witness box, when pressed about what he actually saw on that day as claimed by him, the Father said that he had been sitting behind the Mother, who was lying on the floor with the baby in front of her, and that he had not actually seen the Mother insert any digit in the child’s vagina at all, but that from the things he said she said, in apparent joking manner to her mother and the child’s mother, he inferred that: (1) there had been digital penetration, and (2) that any such digital penetration was of a sexualised nature. I am satisfied that no such events occurred. Ultimately, and at the start of the trial, I was pressed by the Father’s counsel to not make a finding that the sexual abuse alleged had not occurred.

This is not a case where I am simply not satisfied on the appropriate burden of proof on the balance of probabilities that such abuse occurred, I am positively satisfied it did not.
False allegations continued
That unfortunate allegation of events that did not occur figured very recently in the life of X and her parents. As ordered by the Court on 8 July 2024, the parties were to attend a dispute resolution conference (which I will refer to as “mediation”) with a Court Child Expert and a Judicial Registrar of the Court. The intake session for that mediation was on 1 November 2024, and the second part of that process was on 7 November 2024.
On 7 November agreement was reached and, by consent, orders were made extending the Father’s time with the child. Those orders provided that “stage five” of the 13 December 2023 orders was varied to provide that, from 6 December 2024, the Father spend time with the child each week on Saturday and Sunday from 9am to 6pm, and each alternate week on Friday from 1pm to 5pm.
However, the matter remained outstanding, and at that time, there remained competing applications as to with which parent the child was to live. It was also ordered on 7 November 2024 that the matter be listed for a compliance and readiness hearing before Judge Carty on Friday, 22 November 2024. That is effectively “code” for saying the parties have reached unhappy compromise, or agreement, about the interim orders for the time being, but intend to have a final hearing, or trial, to finally resolve living arrangements for the child.
The next day request for further time
On 8 November 2024, the Father sent a text message to the Mother, requesting an extension of the usual time so that he could take the child to a sports event. Lest it be thought that I in some way disapprove of sporting events, as I made clear to the parties during the hearing, I think they are a splendid thing, but that is beside the point, and I make no comment about whether it is appropriate for a child of only two years to attend such a function, or the time of it at all.
The timing of events in this case is important. The Father made the request for further time on 8 November, and the Mother did not reply until the following day, 9 November 2024. The Mother replied on the following day to the effect that she wanted to keep the child in the existing routine. Effectively, she said no.
What is then clear from business records is that at some point on the day of 9 November 2024 – and I do not know the time, and hence I do not know if it was when the Father was still waiting for the Mother’s response or after she had effectively said no – the Father notified the company that effectively conducts the child care centre where the child attended, there identifying himself as a parent of a child that attended the particular early learning centre:
“[Ms E][6] was a known paedophile and was currently going through a court case in relation to associated offences”.
[6] Ms E is the close friend of the Mother and the mother of the child alleged to have been present back in 2021 at the alleged sexual abuse allegation and now worked at X’s childcare centre.
Ms E suspended after false allegation to her employer
Following the receipt of that information, it is common ground that Ms E had her employment suspended. I am also satisfied that, as at 22 November 2024 on the compliance and readiness hearing, the Father did not inform the Mother or the lawyers of what he had done on the preceding 9 November 2024. The stress and difficulty for Ms E and, hence, to a significant but lesser extent, to the Mother, she being an empathetic person, and then to X, Ms E being the person who worked at the childcare centre where she went, only has to be contemplated to be grasped.
The allegation was raised again by the Father in the following text messages:[7]
1 it wasn’t windy 2 as a parent off mi Daughter I have a say were she can go with me 3 you can’t tell me what I can do with mi own Daughter 4 it’s not all about you the time I have on the weekend is about me and mi Daughter spending time together wich will get more and more so get [used] to it but if you cancel time with me and mi Daughter it woud be good wen she wakes up we do it then or the next day that’s what co parents do work together stop listening to your mum it’s got nothing to do with her it’s you and me and [our] daughter or I will go see the right people to let them [know] you stuck your finger up a not even 1 year olds Vagina and you and your mum laughed about it and let me [know when] that apment is I’m going to call them up I [want] them to do sum tests wen she is there you have [turned] into such a Pity person all the stuff you sed you wouldn’t do you and your mum ar making everything so hard wen it dusnt have to be I’m doing everything think right and your not so the cops will [know] for now on what you and your mum do
[7] A copy of which is exhibit ‘F1’ in these proceedings.
However, the Father then did not inform the Mother of what he had done until 3 January of this year. That message said:
Well I Finally fond the video that will prove the kid [touching] s**t so that will come out as for the uther s**t I don’t even talk to you at [changeover] and I definitely don’t have the time to follow you and if you give the cops date and times I will happily prove it were I’ve been with gps and you cant Facilitate time for me and mi Daughter I’ve tried working with you and doing it properly but with all the lies and not trying to work together I will be going for 100% custody
It was put by the Mother’s counsel that the Father had, in a very calculated and manipulative fashion, refrained from informing the Mother so that he could enjoy the additional time over New Year that the orders of 7 November had provided. I am unable to make a finding or be satisfied on the balance of probabilities that that was the Father’s motivation. The Father’s motivation was said to be so calculated, as was one of the parties in the matter of Willmore & Menendez, and I was referred, in particular, to paragraphs 37 to 39 of that decision.
Did the Father ever believe his own allegations?
It has also been submitted to me that I should find that the Father had simply made up the events of 2021 and never had any genuine belief of such sexual abuse and had raised it merely to cause mischief and trouble and grief and distress for the Mother.
I am unable to conclude the deeper motivation for what the Father did over 7, 8 and 9 November 2024.
Self-sabotage?
I was, as discussed with counsel, troubled about the self-sabotaging nature of what the Father did. In the lead-up to a final hearing about the welfare of the child, such self-sabotaging behaviour is consistent with a genuine belief of something having occurred but is also consistent with acting maliciously and having simply made it up. I am unable to find that the Father has just made it up.
Transactional manner of raising allegation
However, I am satisfied that, as on the previous occasions, the Father raised this allegation in a transactional manner. That is, where he was, and as part of, seeking some concession or behaviour or engagement from the Mother. He threatened to report this allegation when he wanted something that the Mother did not want to give him, whether that was further time or engagement in conversation. Whatever the deeper motivation, I am satisfied that there was a disinhibited, or kneejerk, reaction on or about 9 November when the Father contacted the childcare centre, setting in train the destructive chain of events, because of his pique or unhappiness with not being able to take X to a sports match. Fans of sports might see that as a serious matter, but not so much for a two-year-old.
Whether or not this was “self-sabotaging”, the Father’s disinhibited and destructive manner of acting causes me to be troubled about his overall intellectual functioning and parenting capacity. That concern, or, rather, the risk that the Father lacks necessary parenting capacity to safely parent X for extended times, including overnight, troubles me. It is the major and most significant, but not the only, reason why I am sadly satisfied that the Mother’s case (that there should not be a move to overnight time at any time in the future), as affairs are at this point in time, is made out.
The Mother’s case sought a suite of orders that contemplated that the Father would, as provided at order 32, undertake a period of six months of treatment or therapy with a qualified mental health practitioner with expertise in family violence and engage in treatment as recommended. In addition to that, the Mother pressed that the father again undergo the parenting orders program and again undertake the Circle of Security program and a men’s behavioural change program and provide proof to her of enrolment and proof of completion.
It was the Mother’s case that upon the Father completing those programs, that the supervised time that she pressed would move to supervised by the Father’s mother and then unsupervised, and that would happen automatically upon the Father completing those programs. I am satisfied that what the Mother was seeking, and wanting, and hoping, was to be able to have the Father change his behaviour so that it was safe for X to spend extended and unsupervised time with him. In the circumstances, it is unsurprising that the Mother lacked confidence that the Father would be able to care for X on an overnight basis.
My attention was helpfully drawn to the decision of Lainhart & Ellinson. In the context of the pressing of an order for the Father to undertake courses, I refer to and recite the following from that case:
26Order 4(b) is a parenting order within the meaning of s 64B(2) of the Act because the conditions it imposes are tethered to and qualify the time which the child will spend with the father under the subsequent orders (Oberlin & Infeld (2021) FLC 94-017 at [51]–[52] and [59]), which necessary nexus the primary judge explicitly addressed (at [210]–[212]). Hence, the legal error imposing anterior conditions upon the expansion of the child’s interaction with the father is not the absence of power to impose them.
27Rather, the orders are beset by two other defects: first, their operation is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child; and secondly, the orders are aspirational and unenforceable, not prescriptive and enforceable.
28Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150–151, 160 and 163–164).
29Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
30As the High Court of Australia recently said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [19]:
The normative structure of the Australian legal system is that it is adversarial in nature. … The independence and impartiality of [the court] is protected, in part, by the confining of [the court’s] role to deciding the case on the basis of the evidence which each party elects to tender … The adversarial system … does not permit the judge to engage in “an inquisitorial role in which [the judge] seeks … to remedy the deficiencies in the case on either side”. The judge “hear[s] and determine[s] the issues raised by the parties” and does not “conduct an investigation or examination on behalf of society at large”.
(Footnotes omitted)
31In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]).
If the Father successfully completed a period of counselling and the various courses and the men’s behavioural change program and changed his attitude to the Mother and to the Mother’s parenting, the case would be a different one. If the Father had already changed, as the Mother hoped he would, following the completion of that therapy, I would have a different case.
As directed by Lainhart & Ellinson, and in particular paragraph 29, I must deal with the parties as they are and not meddle by making aspirational directions about how parents should improve their parenting capacity in the hope of enhancing their child’s familial experiences. It is in that context that the order for counselling was not pressed in final address after I raised Lainhart & Ellinson.
Third day of final hearing: Father concedes child live with Mother
It also needs to be noted that it was only in final address on the morning of the third day of the hearing that the Father’s counsel formally no longer pressed for the change of residence as his application formerly sought. But I am satisfied it was the morning of the third day that the Mother learnt for the first time that the Father no longer pressed for that change of residence on the basis that she was a risk to the child.
I am bound by the observations of Lainhart & Ellinson and the other authorities referred to therein, and I infer that the 6 May 2024 amendments that placed greater emphasis on safety did not change and qualify the underlying rationale of those paragraphs referred to. In this case, though, the Mother did not seek to delegate to a psychologist, or a person conducting a program such as a men’s behaviour change program, the decision of determining whether the Father was able to parent appropriately or had changed.
Rather, the Mother presented her case on the basis that she hoped for the child to be able to have a regular relationship with the Father, and she hoped and assumed that by him completing those programs, in particular the men’s behaviour change program, that the child would be safe with the Father. Hence, this case does not fit neatly within the paradigm as dealt with in Lainhart & Ellinson. In this case, I am guided by the Mother’s judgment that, provided the Father had engaged with those programs, that it would then be safe enough, provided that time does not move to extended time and overnight time. I accept the Mother’s caution about not moving to overnight time. That point is well made.
Different orders within the parameters of the dispute
I have framed the orders because there is an inherent inconsistency in the orders as pressed by the Mother. Two periods of three months are pressed. However, I do not accept, nor do I have any evidence, that it is possible for the Father to have obtained a place in, engaged in and completed a men’s behavioural change program within three months from now. Hence, I have varied the orders sought by the Mother to the point of the father enrolling in that program. He is compelled by my order to enrol in and complete those programs. In the circumstances where he conceded in his case that he would do so, and I will make those orders by consent, I am satisfied that he will enrol and complete those programs.
I am satisfied that the Father will undertake whatever course or, from his point of view, step over whatever hot coals are required to be able to have a relationship with his daughter. I am satisfied that he loves his daughter very much.
Father demanded unreasonable time for a weeks-old breastfeeding baby
The tragedy in this case is that the Father, soon after separation, commenced to make demands upon the Mother for time with the child that were simply not reasonable given the age of the child, being a matter of mere weeks and months, and a child continuing to be breastfed. The overwhelming inference is that the child would have been primarily attached, in the psychological sense, to the Mother and the age of the child at that time necessarily imposed real practical limitations on what time with the Father away from the Mother would be to the benefit of the child. It is common ground that, soon after separation, the Mother proposed, and complied with, an arrangement whereby the Father was able to see the child each day for what to a child of that age was a considerable time, that is, half an hour.
Sadly, the Father had the firm conviction that he, being the Father of the child, was entitled to have much longer periods and should have been permitted to quickly move to extended chunks of time, including overnight time. That underlying tension between the Mother’s reasonable and sensible suggestions for time with the Father, and the Father’s belief that he was entitled to more time because he was the father, was an unfortunate underlying tension in this case from early after separation. Added to that, the Father’s demonstrated capacity to make repeated transactional-type threats, not only about the sexual abuse, but hints of threats of reporting the Mother’s mother in regard to possibly social security or possibly smoking in the presence of the child, added an unfortunate layer of tension.
In addition to that, I accept the Mother’s evidence as to the Father’s behaviour at times when he attended to see the child. This included:[8]
[8] Mother’s affidavit filed 27 February 2025.
62. When contact was at my house, [Mr Boysen] would generally only attend for an hour or a little more before leaving. [Mr Boysen] would leave saying [X] was hungry and not wanting to play or he would lay her down and play on his mobile phone.
63.[Mr Boysen]’s mother would attend the visits as well. If [X] fussed or became upset, [Mr Boysen] would hand her to his mother and start playing on his phone. He refused to help settle her.
…
65.When the supervised visits transitioned to being at the park, I thought that if [Mr Boysen] and I could talk then maybe we could be friends and get along for [X]’s sake. I was too slow to realize that [Mr Boysen] thought this meant that we could get back together. When I told him that was not the case, [Mr Boysen] became angry and started sending me messages telling me that I would not be able to make a life for [X] and that I had no life skills to teach her.
66. After this, I made an effort to sit away from [Mr Boysen] and to give him space with [X].
67.As a result of me not sitting and talking with [Mr Boysen] while he had [X], [Mr Boysen] started making negative comments when he would collect and return [X].
68. [Mr Boysen]’s comments would be in the vein that I would never be able to make a decent life for [X], I would never be able to handle [X], that as I couldn’t stay with him I wouldn’t be able to stay with [X], that when she was older he would tell [X] all of the horrible things I had done, and that she would know how much of a disappointment I was.
…
71. [Mr Boysen] continued making comments about how he knew everything I was doing.
72. On 24 September 2022, I asked [Mr Boysen] how he knew what I was doing, [Mr Boysen]’s response was that everyone was watching my house, he knew what cars were there and when I left the house, and that [City J] was a small town. He felt that as [X] was his daughter, he had a right to know where I took her.
…
Father’s communication very difficult & accusative

The matters unhappily escalated over late 2022 and early 2023. The matter escalated over a concern at what the Father had fed to the child during a period when the child was with him. I accept the Mother’s evidence that the Father had told her that he gave the child a drink, and it is unclear to me whether he told the Mother that he gave the child a banana or a banana biscuit, as he now asserts. However, on or about 10 December 2022, when the child returned from time with the Father, the child was very ill, when the child had not been earlier on the visit.
The Mother interpreted the symptoms of the child, very reasonably, as being a reaction to something that the child had consumed, and I accept she had been told by the Father that the child had given the child something to drink and something – I am not sure what – to eat. When the Mother pressed the Father as to what it was that the Father had given her, the Father was obfuscatory in his communications. Notwithstanding that, the child was later made available for time. The child then had “croup”. The Mother raised that illness with the Father, but the Father was dismissive of that concern.
Did the child have a medical episode?
The matter then escalated when the Mother understood, from a communication from the Father, that the child had suffered a medical episode, or medical episodes, consistent with, or similar to, a medical condition.
Both parties were alert to and sensitive to the issue of the medical condition, because it is common ground that the Father had long suffered from this condition himself, and I am satisfied the Mother was aware of that and was empathetic to that circumstance. Hence, both parties had a heightened concern about whether or not the child had the medical condition. When the Mother pressed the Father for details of whatever it as he had said to her at a contact changeover, the Father was again obfuscatory and uncooperative about providing details. It is unnecessary to set out the text message exchanges. In those circumstances, the Mother then ceased making the time available on an unsupervised basis. She asserted:[9]
130. At that time, I thought it best to stop unsupervised visits between [X] and [Mr Boysen] and take it back to supervised so that I would be there if she was to have any more medical episodes. When [Mr Boysen] was told this, he began sending me messages stating that I was a real piece of work, that she did not have [medical episodes], and he was going to get me and my mother locked up, that he was going to go see the right people and that my friend [Ms E] was going to lose her kids and good luck trying to get out of it.
[9] Mother’s affidavit filed 27 February 2025.
All time ceases
The Father then refused any restriction on supervision by anyone and the end result was no time at all was had from late January 2023 to the middle of 2023. In the meantime, on 21 April 2023, the Mother had issued proceedings. I am satisfied that the issue of proceedings by 21 April following the cessation of the agreed time at the end of January was not any undue delay. Further, it was the Mother making the application and bringing the matter before the Court, not the Father. I am satisfied that she acted reasonably in doing so. Following the assistance of the Court, and lawyers and court orders, time again resumed.
THE FAMILY REPORT
A family report was undertaken with interviews on 14 and 15 February 2024. Significant observations included the following:
11. [Mr Boysen] stated that the parties were excited following confirmation of the pregnancy. He described the maternal family as not liking him with the maternal grandmother overly involved in their lives. [Mr Boysen] stated that he stayed with the mother and child for one week following discharge from hospital. He described the maternal grandmother as critical and controlling of both parents. [Mr Boysen] stated that following separation arrangements were agreed between the parties for him to spend time with [X] this subsequently involving the paternal grandmother. [Mr Boysen] stated that his time with the child was unilaterally ceased by the mother in January 2023. [Mr Boysen] denied poor care of the child. He stated that he requested information from the mother if the child had been tested for [a medical condition]. [Mr Boysen] stated that he was willing to attend [B] Contact Centre, [City J], in order for supervised paternal time to take place in early 2023. [Mr Boysen] raised the possibility that the mother and maternal grandmother have mental health issues. [Mr Boysen] denied acting in an abusive manner to the mother. [Mr Boysen] raised the issue of sexualised behaviour of the mother towards a baby of a friend in 2021 this subsequently reported to the police and child protection. [Mr Boysen] described the mother as not accepting of him spending meaningful time with the child.
…
13.[Mr Boysen] proposed that the parties have equal shared parental responsibility for [X]. He proposed that the parties work towards a shared care arrangement[10] with graduating increases of time in paternal care. [Mr Boysen] expressed his desire to spend substantially increased time with [X]. He proposed that in the short term, the weekend arrangements continue however this to include an overnight on the Saturday. [Mr Boysen] stated that he was open to [X] having the opportunity to have Facetime contact with each parent. [Mr Boysen] expressed opposition to any proposed reduction in his time with [X].
[10] At final hearing, until final address, the Father’s primary application was for the child to live with him and spend alternate weekends with the Mother.
…
15.[MS KRUSE] (known as [Ms Kruse]) is thirty two years of age (born [in] 1991). [Ms Kruse] impressed as engaging, willing to talk in an open manner and verbally capable. She was co-operative and willing to speak with the Report Writer. [Ms Kruse] was accompanied by the maternal grandfather to assist with the care of [X] on the day of the interviews. [Ms Kruse] was well prepared for [X] bringing food, drinks and toys.
…
18.[Ms Kruse] acknowledged the Child Impact Report indicating that she did not have issue with the information recorded or recommendations. [Ms Kruse] stated that she strenuously denies paternal allegations made of her acting in a sexually inappropriate manner with a friend’s child in the past. [Ms Kruse] stated that there has not been a formal police investigation or interview to this point in time following paternal allegations. [Ms Kruse] stated that the father has attempted to discredit her by making such serious accusations. She further denied that [X] is smacked when in maternal care, describing the father as ‘threatening to charge me if this happened’.
…
29.[Mr Boysen] expressed his love for his daughter and desire to be an actively involved father. He stated that most time with the child is spent at the home of the paternal grandparents. He added that paternal family relationships were important for [X]. [Mr Boysen] described [X] enjoying various activities when in his care including [sports], swimming and playing with toys. [Mr Boysen] stated that [X] has her own room at the paternal grandparents house and that she has her own belongings such as clothes and toys. [Mr Boysen] described feeling confident as a father, believing that he is able to meet the child’s needs. He described [X] as settled and not distressed when in his care. [Mr Boysen] described sharing a ‘fun’ relationship with his daughter adding ‘it is the best days for me when I am with her, I love being a dad, being with her and teaching her’. He stated that he is fully responsibility for the child’s care when she is with him. [Mr Boysen] expressed the view that father and daughter are familiar with each other and that [X] is ready to spend overnights in his care. [Mr Boysen] acknowledged that [X] has a ‘good’ relationship with her mother however expressed concern that ‘the mother may be following in her mother’s footsteps’.
…
38.An observation occurred between the father and [X]. The child was willing to walk into the consulting room with the Report Writer. She was observed to have recognition of the father. [X] brought a couple of toys provided by the mother. [X] was observed to be quiet and reserved in her interactions with the father. She appeared curious in response to the new environment. The father was observed to be attentive and encouraging of [X] to play and draw on the white board. It is noted that the father did not bring provisions or toys for the child. The father held the child, [X] appearing accepting of this. The child made little in the way of vocalisations, mainly pointing and gesturing. [Mr Boysen] at times was provided with suggestions by the Report Writer in relation to play with [X]. The father was gently spoken and provided encouragement and praise to the child such as ‘you are clever, you worked that out quick’. The father made observations that the child may be becoming tired. He commented that [X] was quieter than usual, this being out of character for her. The father engaged in affectionate farewells and hugs with [X] at the conclusion of the observation period.
39.An observation occurred between the mother and [X]. The mother entered the consulting room with a quick transition taking place. The parties were observed not to greet or acknowledge each other at the point of transition. Mother and daughter were observed to engage in an affectionate manner with the child appearing comfortable and at ease in the maternal presence. The mother was observed to be attentive and child focused. She provided boundaries when required for the child’s safety. [X] was observed to become more vocal, playful and active in her undertakings. [X] was observed to comfortable in the presence of the paternal grandfather when he entered the consulting room. [X] was wiling to accompany him during the maternal individual interview.
…
43.[Mr Boysen] also openly expressed his parental love for [X], wanting to be an involved father to this child. [Mr Boysen] stated that he is frustrated by the slow progression of his time with [X], questioning the need or value in this child not being able to stay overnight in his care on the Saturday during weekend arrangements. [Mr Boysen] expressed the view that the mother and maternal family were not accepting of his parenting role with the child, imposing unnecessary restrictions in this area. [Mr Boysen] stated that he was ready and confident as a father to care for [X] in an extended manner. [Mr Boysen] denied maternal allegations made against him, refuting that he has acted in a threatening, critical or aggressive manner. [Mr Boysen] acknowledged personal issues in the areas of [a medical condition] and literacy/learning. [Mr Boysen]’s love for [X] is acknowledged and desire to have a meaningful parenting relationship with his daughter.
…
46.It is noted that the parties have reached interim agreement in December 2023 that paternal time will gradually increase in a planned manner during 2024 this including time on Saturdays and Sundays and the introduction of alternate Mondays in June 2024. The father proposed that overnight time commence as soon as possible, this providing the opportunity to strengthen the father-daughter bond. The mother described current paternal arrangements as ‘too long’ for [X], opposed to the introduction of overnights until the child turns four years of age. Both parties appear set in their individual views at this time. The parties have experienced parental conflict following the birth of [X]. Counter accusations have been made including poor paternal understanding of the needs of the child and negative views held of the father by the maternal family. The father has made reports of compromised maternal responses to the police and child protection, this being a distressing situation for the mother.
47. The emotional needs of [X] require careful consideration and priority in this matter. As a very young child, she benefits from planned and graduating increases in paternal time. Overnight arrangements for this child may be considered by the time she is three years of age. The arrangements agreed to in 2024 by the parties provide the on-going opportunity for [X] to become fully comfortable and adjusted to time away from primary maternal care. Whilst it is acknowledged that the father would like overnight and extended time to commence as quickly as possible, this reflects his needs rather than fully focusing on what is in the child’s best interests. It is important that the mother feel increased confidence in paternal responses and care of [X] given she is the recognised primary carer of this child.
48. It is highly likely that there are issues of parental maturity that have impacted upon difficulties in the area of decision making and communication post separation. There is also the raised issue of paternal responses that are described as having a tendency to be frustrated and confronting as experienced by the mother. The father is encouraged to focus upon respectful and conflict free interactions with the mother, particularly in the presence of [X]. [Mr Boysen] is encouraged to continue engagement in counselling to assist in the area of interpersonal interactions and reflecting a child focused approach to the current situation. Both parties may benefit from attending a post separation parenting course/counselling to improve parental communication and decisions making.
49. On balance, it is considered that [X] will benefit from stability in her living arrangements, this being primary maternal care and the weekly opportunity to spend planned time with the father. Continuing weekend arrangements appear to be the most workable at this time given the father’s work roster. At the end of 2024 transition may be indicated to a future paternal regime of alternate weekends, this including an overnight on the Saturday and time on the alternate Monday if the father’s work roster permits day time with [X]. A substantial increase in paternal time, including a shared care arrangement is considered premature in this matter given the child’s young age and continuing parental issues of conflict. The father is encouraged to utilise parenting arrangements to further strengthen his bond and parental relationship with the child, this process taking time to establish.
In oral evidence, the report writer was appraised of the very recent events of the making of the allegations about Ms E by the Father, and the Mother ceasing time altogether in January of this year. The report writer was very concerned about a deterioration in the parental relationship and emotive responses of both parties, and the consequent disrupted routine for the child from February of 2024 when she assessed the family. In light of those events, the report writer urged caution about any extended time. She unqualifiedly had no concerns about the Mother as an appropriate and protective parent but observed that the Father had his own vulnerabilities in his thinking. The expert considered the presence of the Father’s mother to be a protective consideration.
I accept the evidence and opinions of the expert witness, the family report writer, and the qualifications to her written recommendations made in oral evidence before me.
APPLICATION OF FINDINGS TO THE LAW
I will now turn to the various aspects of section 60CC, and the heading of each of the sections of section 60CC(2) is paraphrased but the whole is referred to.
60CC(2)(a): arrangements to promote safety
In considering what arrangements would promote the safety of the child and the Mother, I take into account, and am satisfied of the Mother’s account, of the interaction known as the “door-slamming day”, when the Father pushed the Mother, he being angry, in the presence of the child. I am satisfied that the Father’s behaviour in relation to the allegations of the sexual abuse was itself coercive and controlling behaviour. My concern about the Father’s approach in late 2024 and early 2025 to the welfare of the child (the whole saga from 7, 8 and 9 November 2024 to mid-January 2025 recited earlier) causes me to have real concerns about his parenting capacity. As I commented during the hearing, an ironical aspect of this hearing is that the Mother’s case was pressing for a manner in which the Father could improve his parenting capacity and his manner of interacting with the Mother.
I am not satisfied that orders moving to overnight time would promote the safety of X and/or the Mother. I accept, to a limited degree, the Mother’s confidence that, were the Father to engage in the Circle of Security program and the Men’s Behavioural Change program, that following a period of supervised time, he would be safe with the child. The Mother continues to have circumspection about that, but presses such an arrangement with some confidence that the Father’s behaviour would change.
In cross-examination, the Mother asserted, and I accept, that good qualities of the Father as apparent to her included:
·that he loves the child; and
·that he could be (or is at times) a good “Dad”; and
·he has, or used to have, a kind nature.
I need to address why I make orders that only have the Father’s time moving on upon the completion of the various programs. Implicit within that is that the Father will be assessed by those conducting the programs to have successfully completed them and, to a degree, were I to make the Father’s time conditional on that completion, I would be delegating the responsibility for making the decision about the child’s welfare to those conducting the programs. In the end, I am moved and satisfied by the Mother’s approach.
60CC(2)(b), Any views expressed by the child.
The child is too young to have any weight placed on any expressed views.
60CC(2)(c), the developmental, psychological, emotional, and cultural needs of the child
The child has the developmental, psychological and emotional need of not being exposed to conflict between the parents or family violence between the parents. There is some risk that the Father will continue to be conflictual and abusive and critical of the Mother at changeovers. I am not satisfied that that risk is such that the parents should never attend a changeover. There are good reasons for the Mother to seek that. However, I am proceeding on the basis that both parents will be able to, for X’s sake, conduct themselves at changeovers without further trouble.
That is X’s major need at this time. That is, developmentally, psychologically and emotionally, she needs both parents in her life but in a manner that is safe. I am satisfied that these orders best promote those matters, but bear in mind the practicality of having forever changeover arrangements where neither parent attends. I am not satisfied that is practical or would be able to endure in the long run.
60CC(2)(d), capacity of each parent to be able to provide for the child…
I must consider the capacity of each parent to be able to provide for the child’s developmental, psychological, emotional, and cultural needs. For the reasons that I have outlined, I am concerned at the Father’s capacity to provide for the child’s developmental, psychological and emotional needs in the context of having extended time and/or a shared care type arrangement as he seeks. I am not satisfied on the evidence I have in this case that the Father has the capacity to provide for the child’s developmental and psychological and emotional needs such as to provide adequately for the child on an extended or overnight basis.
60CC(2)(e), benefit of the child having a relationship with each of the child’s parents.
I must consider the benefit of the child having a relationship with each of the child’s parents. I refer to the observations of the family report writer. Both parties in this case asserted that there was a benefit to the child having a relationship with both of the child’s parents. The Father’s position had some complexity to it in that his documents in his case asserted that the child should live with him because the child was at risk of harm in the Mother’s care, but in substance, his case and his oral evidence in the witness box was consistent with aspects of the Mother’s case. That is, that it was to the benefit of the child to have a relationship with both parents in the long run.
60CC(2A)(a) & (b), family violence and family violence orders

I must consider any history of family violence, abuse, or neglect involving the child or the person caring for the child. I am satisfied that the Mother has been exposed to family violence and that being abuse by the Father. I am satisfied there was only one occasion of physical contact, and that one occasion does not inform this case. It is not the case that the Father would not have overnight time because he once slammed the door on the Mother and pushed her when she, like Daniel going back for his hat, opened the car door again to give the Father some more advice about the child. But, the circumstance of the coercive and controlling behaviour relating to the sexual abuse allegations, and the dynamic of what occurred from 7 November through to the middle of January of this year in the lead up to the trial, is coercive and controlling behaviour, it informs significantly my decision that it is not in the best interests of X to, at this time of her life, on the evidence that I have, move to significant block or overnight time.
Family Violence Order and Section 114AB restriction on orders for protection
I must consider any family violence order if it applies. In this case, no family violence order applies. The police, not the Mother, have applied for a family violence order after the Mother reported events. On the evidence I have, which includes a copy of the application, I am not satisfied that the Mother has taken a “step” in accordance with as described in section 114AB of the Act and, in that case, the injunctions pressed are not prohibited by section 114AB.
I place very little weight on the circumstance that the police determined not to make an immediate and ex parte application and so obtain a family violence order. And I only place a little weight on the circumstance that the police have decided to bring an application. That application is going to be heard, I am told, in late 2025, but ultimately that is not a matter that assists me in determining the best interests of the child.
It needs to be noted that I do not regard the Father as unintelligent. He is able to operate the dangerous machinery involved in being a tradesperson, and I am satisfied does so responsibly. That indicates a real degree of practical intelligence. That the Father, with that practical intelligence, would engage in this self-sabotaging behaviour from 8 November on is a matter that significantly informs me as to his parenting capacity. I cannot make precise factual findings of exactly what the risks to X are, and it is that uncertainty of what is going on, and the Father’s motivations, and his disinhibition when stressed about not getting what he sees as reasonable for X, that are the major contributor in causing me not to accept his application to move to significant block time and/or overnight time.
I know I have given the Father a lot on his plate, and I know I have given him orders that are far from what he wants, but I am satisfied that he genuinely loves X and will attempt to put what is in her best interests first and comply with these orders, rather than what he would want, or what he personally believes is in X’s interests. I am grateful to him for his courtesy to me in these court proceedings, and the restrained manner in which he has remained in the court when many people in his circumstance are simply unable to do so.
I am also grateful for the courtesy of the Mother, who has found herself in the very difficult position of answering very serious allegations, and I am grateful to her for the dignity with which she has conducted herself in these proceedings.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 30 April 2025
APPENDIX 1
Documents relied upon by the Mother:
·Mother’s outline of case filed 13 March 2025;
·Affidavit of the Mother filed 27 February 2025;
·Affidavit of Ms H filed 27 February 2025;
·Amended initiating application filed 7 June 2024; and
·Family report by Ms K dated 26 February 2024.

Documents relied upon by the Father:
·Father’s outline of case filed 14 March 2025;
·Affidavit of the Father filed 1 February 2025;
·Further amended response filed 19 December 2024; and
·Family report by Ms K dated 26 February 2024.

APPENDIX 2
Exhibits tendered during the proceedings:

Exhibit No:	Description:	Party who submitted exhibit:
17 March 2025
M1	Minute of orders sought by the Applicant Mother	Mother
M2	May 2023 text messages between the parents	Father
M3	Letter from mother responding to allegations	Father
F1	Text message from Father to Mother 3.01pm 25 October	Mother
18 March 2025
F2	Amended orders sought by Father	Father
F4	Father’s chronology of annexures to his affidavit	Father
M4	Annexure dates of Mother’s affidavit	Mother
19 March 2025
F5	Father’s costs notice	Father
M5	Text messages of 8 and 9 November 2024	Mother
F3	Parenting plan commencing 20 August 2025	Father

File number(s):	CRC 150 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	19 March 2025
Catchwords:	FAMILY LAW – Parenting – Parents separated shortly after birth of child – Where father initially sought orders for 2-year-old child to live with him and spend time with the mother – Father changes orders sought on third day of trial – Father then seeks joint decision making, child live with mother and spend time with father in graduated regime – Where mother facilitated time between father and child following separation – Where father made unreasonable demands for time whilst child still breastfeeding – Serious allegations made by father against mother and mother’s friend – Transactional nature of allegations raised by father against mother –– Father’s evidence found to be unreliable – Orders made largely as sought by mother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 114AB
Cases cited:	Fox & Percy (2003) 214 CLR 118 Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200 Martoulis & Valas [2022] FedCFamC2F 1781 Willmore & Menendez [2022] FedCFamC1A 73
Division:	Division 2 Family Law
Number of paragraphs:	90
Date of hearing:	17 – 19 March 2025
Place:	Coffs Harbour
Counsel for the Applicant:	Mr Coe
Solicitor for the Applicant:	Beneke Legal Pty Ltd
Counsel for the Respondent:	Mr Finch
Solicitor for the Respondent:	Wigmore O’Shannessy Solicitors & Attorney

CRC 150 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KRUSE Applicant
AND:	MR BOYSEN Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	19 MARCH 2025