Lenkov & Serada - [2021] FamCA 192

FAMILY COURT OF AUSTRALIA
Lenkov & Serada [2021] FamCA 192

File number(s): SYC 33 of 2018

Judgment of: ALTOBELLI J

Date of judgment: 14 April 2021

Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where mother alleges family violence – Where mother asserts the child is fearful of the father – Where there is no objective evidence supporting mother’s claims – Where Family Report is available – Where Family Report indicates meaningful relationship between the child and both parents – Where Court makes credit findings – Where Court finds the child would benefit from a meaningful relationship with both parents – Orders made for child to live with the mother and spend time with the father.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV

Cases cited:
MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

WK v SR (1997) FLC 92-787; [1997] FamCA 57

Number of paragraphs: 191

Date of last submission/s: 14 January 2021

Date of hearing: 11-14 January 2021

Place: Sydney via videoconference

Counsel for the Applicant: Dr McConaghy

Solicitor for the Applicant: Rennie Lawyers & Notaries

Counsel for the Respondent: Ms Knight

Solicitor for the Respondent: Hillcrest Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Messner

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 33 of 2018

BETWEEN:
MR LENKOV

Applicant

AND:
MS SERADA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

14 APRIL 2021

THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The parties have equal shared parental responsibility for the child, X Lenkov born … 2015 (‘the child’).
3.The parent with whom the child is living at the time shall have responsibility for making day-to-day decisions concerning the child without reference to the other parent.
4.The child lives with the mother.
5.The parents are to do all things necessary to ensure that the child spends time with the father during the school term as agreed between the parties in writing and failing agreement, as follows:
(a)From the date of these orders to the commencement of Term 3, 2021:
(i)In week 1, from after school or 3pm Friday until before school or 9am Monday, commencing from the Monday after the making of these orders; and
(ii)In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

(b)From Term 3, 2021 and thereafter:
(i)In week 1, from after school or 3pm Thursday until before school or 9am on Monday; and
(ii)In week 2, from after school or 3pm Thursday until before school or 9am on Friday.

6.The parents are to do all things necessary to ensure that the child spends time with the father during each school holiday period as agreed between the parties in writing and failing agreement, as follows:
(a)During each Term 1, 2, or 3 school holiday period:
(i)From after school or 3pm on the last day of school until 10am on the middle Saturday of the holidays in even numbered years; and
(ii)From 10am on the middle Saturday until the commencement of school or 9am in odd numbered years.

(b)From 2021 to 2023, during the Term 4 summer holiday period:
(i)In odd numbered years, in alternating blocks of seven (7) nights, from the conclusion of school on the last day of the school term for a period of seven (7) nights and until 10am on the day following the seventh night;
(ii)In even numbered years, in alternating blocks of seven (7) nights, from 10am on the day following the seventh night that the child has spent with the mother, for a period of seven (7) nights and until 10am on the day following the seventh night with the father;
(iii)In the event of less than seven (7) nights of the summer holidays being left, the child is to remain in the care of that parent until the first day of school Term 1.

(c)From 2024, during the Term 4 summer holiday period:
(i)In even numbered years, for the first three (3) week block of the summer holiday period; and
(ii)In odd numbered years, in the second three (3) week block of the summer holiday period.

(d)On Father’s Day from 10am until the commencement of school or 9am on the day following Father’s Day.
(e)If the father is not available in a school holiday period, he must give 28 days’ written notice to the mother.

7.In the event that the Father’s time with the child coincides with Mother’s Day, the father’s time with the child be suspended from 10am until the commencement of school or 9am on the day following Mother’s Day.
8.Time in accordance with orders 5 and 6 be suspended, and the child spend time with each parent, on his birthday as follows:
(a)With the father in odd numbered years from 9am to 6pm if the child’s birthday falls on a non-school day or from after school until 6pm if it falls on a school day.
(b)With the mother in even numbered years from 9am to 6pm if the child’s birthday falls on a non-school day or from after school until 6pm if it falls on a school day.

9.For the purposes of these orders, changeover other than at the school or scheduled activity or event is to take place at Suburb B McDonalds, unless otherwise agreed in writing between the parents.
10.For the purposes of these orders, the parents or their agents may attend changeover, provided the parents have communicated the name of the agent in writing to each other.

Communication
11.The parties shall communicate with each other using the “Our Family Wizard” parenting app and only in relation to matters concerning the child’s arrangements or in relation to obligations as to parental responsibility including medical and psychological treatment and education, unless in the case of an emergency.
12.Each party be restrained from:
(a)Questioning the child about the other parent or about periods when the child was spending time with that other parent;
(b)Using corporal punishment or physical force when disciplining the child;
(c)Assaulting or threatening the child;
(d)Denigrating the other party (or any member of the other party's family) in the presence or hearing of the child, and use their best endeavours to ensure no other person denigrates the other party or many member of the other party’s family in the presence or hearing of the child;
(e)Involving the child in matters concerning parenting arrangements; and
(f)Showing or permitting the child to read or making the child aware of any communication between the parties pertaining to arrangements.

13.Each party keep the other informed of their mobile telephone number and any changes thereto within 24 hours of such change.

Health
14.Each party keep the other informed of the child’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations.
15.In the event that the child suffers any serious medical emergency and/or illness, the parent who is caring for the child at the time is to notify the other parent by telephone call (and if not reachable, parenting app), as soon as practicable, and in any event not more than three (3) hours after the emergency or illness first occurring, including providing details of the relevant hospital or health practitioner on which the child has or is attending, and authorise such to provide to the other parent at his/her request and expense any information and/or reports concerning the child.
16.The parties each do all acts and things and sign all documents necessary to authorise each medical professional or health care provider treating the child to provide a copy of any test results, letters of referral, reports and other letters relating to the treatment of the child, to the other, and each party provide to the other the name, address, and telephone number of each medical professional treating the child, upon request at each party’s own expense.
17.In the event that the child is unwell and is unable to attend school for more than one (1) consecutive day due to a medical illness, then the party whose care the child is in is to provide a medical certificate to the school which covers all days that the child is absent from school.
18.Leave be granted to the parties to provide a copy of the Family Report dated 27 July 2020, prepared by family consultant Ms C, to the mother’s health care professionals.

Education
19.The mother is to withdraw all previous school enrolment applications completed for the child in primary schools other than D Public School.
20.If the following has not yet been effected by the date of these orders, then the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in D Public School to commence in Term 2, 2021, including and not limited to:
(a)That by 16 April 2021, the father to complete a new school enrolment application to enrol the child into D Public School and to forward the application to the mother’s solicitor;
(b)That by 19 April 2021, the mother to complete her section of the enrolment application and forward the completed application to the D Public School; and
(c)That the parties are restrained from adding further information in the school enrolment application, except to include the relevant current Court order.

21.If the following has not already been effected by the date of these orders, then within 7 days of the date of these orders, the mother’s solicitor is to forward a copy of the completed enrolment application to the father’s solicitor and the Independent Children’s Lawyer, save for the mother’s address to be redacted in the enrolment form.
22.If the child has already been enrolled in, and is currently attending, D Public School, then the parties to do all things and sign all documents necessary to add the father’s details to the child’s school enrolment application.
23.The parties be granted leave to provide a copy of these orders to D Public School.

Family Therapy
24.The parties shall do all acts and things to arrange for the parties and the child to attend on a family therapist as recommended by the Independent Children’s Lawyer for the purpose of confidential family therapy.
25.Upon attending the family therapy with the family therapist, the mother and the father shall ensure that:
(a)They and the child attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments, any recommendation that either party participate in any parenting or other course or program recommended by the family therapist; and
(b)Both parties do all acts and things to provide the family therapist with an irrevocable authority for the family therapist to advise the parties in writing, on the request of the parties or on the family therapist’s own determination, the date appointments have been scheduled with the family therapist for the child and the parties to attend, and whether the parties and the child attended those appointments.

26.Within 14 days of the provision by the Independent Children’s Lawyer of the recommendation for a family therapist, the mother and the father shall contact the family therapist to book to attend an appointment with the family therapist within the next two (2) weeks or on the next available date.
27.Both parties provide the other party with confirmation that they have attended an initial appointment with the family therapist in writing within seven (7) days of attending on the family therapist.
28.The mother be responsible for:
(a)Attending on her General Practitioner with the child to obtain a Mental Health Plan for herself and the child; and
(b)Any and all costs associated with any individual appointments she is required to attend as requested by the family therapist.

29.The father be responsible for:
(a)Attending on his General Practitioner to obtain a Mental Health Plan for himself; and
(b)Any and all costs associated with any individual appointments he is required to attend as requested by the family therapist.

30.The father be responsible for the costs of the child’s appointments with the family therapist.
31.Leave be granted to the Independent Children’s Lawyer to provide the family therapist appointed herein with the Family Report dated 27 July 2020, prepared by Family consultant Ms C.
32.The mother enrol in and complete a Parenting After Separation course and provide a copy of the Certificate of Completion to the Father within six (6) months of the date of these orders.

Travel
33.Within 14 days, the party holding the child’s Australian and/or Country E passport(s) is to deliver such passport(s) to the Registrar of the Family Court of Australia, Sydney Registry, and the Family Court shall hold the child’s passport(s) until he turns 18 years of age or the parties otherwise agree or pursuant to Court order.
34.Subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, the parties, their servants, and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia for a period of time until the child turns 18 years of age; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List for the said period, until the Court orders its removal, or with consent of all parties.

Other
35.The appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of these orders, so that the Independent Children’s Lawyer may monitor the implementation of these orders by the parents.
36.The Independent Children’s Lawyer be granted leave to relist this matter on seven (7) days’ notice should any difficulties be encountered regarding the implementation of these orders that cannot be resolved through negotiation.

IT IS NOTED THAT:
A.Orders 1, 3, 4, 7, 10-12, 14, 16-18, and 23-31 above are made by consent.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenkov & Serada has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:

This case concerns a child, Z, born in 2015. The child is currently five years and eight months old. He lives with his mother and spends time with his father. These reasons for judgment explain the orders that the Court has made about the child spending time with his father.
BACKGROUND
The child’s father is the Applicant in this case. He is 39 years old, describes himself as a professional, and lives in a western suburb of Sydney.
The child’s mother is the Respondent. She is 36 years old, describes herself as a homemaker, and lives in an undisclosed location in Sydney.
Both parents are of Country E background. They married in City F in September 2006, and migrated to Australia in October 2007. They have remained living here since then.
The parents separated in December 2017. The totality of the evidence before the Court creates the impression that the relationship was an unhappy one for many years before then. Regrettably, the relationship continued to deteriorate after separation.
Currently, the child spends time with his father from 3pm on Fridays to 5pm on Saturdays pursuant to interim orders made by Senior Registrar Campbell on 20 August 2019. The father would like to expand the amount of time that he spends with the child, but, conversely, the mother would like to reduce this and impose limitations on it.
There are many issues in this case. The father contends, but the mother denies, that the mother suffers from mental health issues. The mother contends, but the father denies, that there was pervasive family violence including coercive and controlling violence directed by the father against her both during their relationship, and afterwards. In particular, the mother contended in cross-examination that the father had been gaslighting her. The mother’s treating psychologist, who gave evidence in her case, explained that gaslighting is, in essence, a process by which one person undermines the other’s confidence and mental health. The father denies this and, indeed, contends that the mother was violent towards him.
The mother’s case is, in effect, that the child’s time with his father needs to be supervised, or alternatively limited, because he presents an unacceptable risk of harm to the child. The father denies such risk and, in effect, contends that the risk of harm to the child comes from the child’s mother, who will not support his relationship with the father.
In December 2017, the police applied for and obtained an Interim Domestic Violence Order protecting the mother. The father was also charged with common assault. This precipitated the final separation in December 2017. In March 2018, the father was found not guilty of assault and the Apprehended Domestic Violence Order (‘AVO’) was ultimately dismissed.
After separation, it is common ground that the mother and the child moved their residence six or seven times. The mother conceded in cross-examination that there were roughly three periods when the mother did not make the child available to spend time with the father. Some of those occasions occurred during periods when there were orders for contact to take place.
The father commenced the present proceedings in January 2018. Watch List orders were made in March 2018. The matter was transferred from the Federal Circuit Court of Australia to the Family Court of Australia in August 2018. In October 2018 Senior Registrar Campbell made orders by consent which provided for the child to live with his mother but spend time with his father on a gradually increasing basis, commencing from three and a half hours each visit then to eight hours, and, once the child turned four, each Tuesday and Thursday from 9 am until 5 pm, and each Friday from 3 pm until 5 pm on Saturday. Some changeovers were ordered to occur at a Contact Centre. The precise orders made by Senior Registrar Campbell are reproduced in the first schedule to these reasons.
There were a number of issues in relation to compliance with these orders. The father filed a Contravention Application in January 2019. The father then filed an Application in a Case seeking to vary the existing parenting orders and significantly expand his time to week about time.
In August 2019, after a further interim hearing, Senior Registrar Campbell made further orders discharging the orders he made on 24 October 2018. the child was to continue to live with his mother, but spend time with his father each week from 3pm on Friday until 5pm on Saturday. Changeovers were to take place at Suburb B Police Station, and the father was to ensure that the paternal grandmother not attend changeovers. The further, and current, orders made by Senior Registrar Campbell are also reproduced in the first schedule to these reasons.

Throughout this period, the parents continued to have issues with the child spending time with his father. Both blame each other for these difficulties.
Part of the mother’s initial proposal was that she be allowed to relocate to the Country E with the child, but in her Amended Response to Final Orders filed on 3 June 2020, she provided an alternate set of orders sought that did not involve relocation.
On 27 July 2020, family consultant Ms C released the Family Report in this case. This will be discussed in more detail below.
The overall impression that is created from the totality of the evidence that is before the Court is that the child’s parents were in a relationship that, with the benefit of hindsight, may safely be described as dysfunctional. The end of their relationship was acrimonious. Their separation, and the period since then to the present has been characterised by deep conflict in relation to the child, inability to communicate about him, and a pervasive mistrust. The child has said many things to his mother after he returns from spending time with his father, and sometimes these words are accompanied by actions such as hitting his mother and being very disruptive. The mother’s evidence is clear in this regard: she unequivocally accepts the truth of what the child has told her and blames the father for the child’s disruptive behaviour when he returns to her care. Her evidence is palpably clear in that she not only mistrusts the father, but is in fear of him and believes that the child is at risk of harm in his care. The nature of this asserted risk will be discussed in more detail below.
COMPETING PROPOSALS
The father’s proposal is contained in a minute of orders provided to the Court by his counsel on the morning of the first day of the hearing. This minute is reproduced in the second schedule to these reasons. In short, he proposed that the parents have equal shared parental responsibility, that the child live with this mother, and spend time with his father on an incrementally increasing basis over three 12-week stages. For the first 12 weeks the child would spend time with his father from after school on Friday until 7 pm on Saturday in week 1, and then from after school on Friday until 7 pm on Sunday in week 2. For 12 weeks after that, it would be from after school on Wednesday until after school on Friday in week 1, and then from after school on Friday until 7 pm on Sunday in week 2. Thereafter, in week 1 the child would spend time with his father from after school on Wednesday until after school on Friday and then in week 2 from after school on Friday to 9 am the following Monday. On the father’s proposal, the child’s time would increase immediately to three nights each fortnight, and then four, and then on an ongoing basis five nights each fortnight. The father also proposed holiday time and time on special occasions. This is merely an overview of the orders proposed by the father, and the details will be discussed below, where relevant.
The order proposed by the mother was also provided by her counsel on the morning of the first day of the hearing. She proposed that the child live with her, and that she have sole parental responsibility. Her main proposal was that the child spend supervised time with his father for three hours on the first Saturday of each calendar month, supervised by a private supervision service at the father’s sole cost. In the alternative, however, and in the event that the Court did not form the view that the child was at such risk in his father’s care that supervised time was necessary, then she proposed unsupervised time each week from 5 pm on Friday to 5 pm on Saturday, as well as time on Father’s Day and Christmas Day, with changeover to occur at Suburb B Police Station. The mother’s proposal is reproduced in the third schedule to these reasons.
The Independent Children’s Lawyer’s proposal was provided on the final day of the hearing, prior to the completion of the evidence of the family consultant. The Independent Children’s Lawyer proposed that all previous orders be discharged, that the parents have equal shared parental responsibility, and that the child live with the mother and spend time with the father four nights a fortnight until the commencement of term 2 2021. Thereafter, the child would spend time with the father for five nights per fortnight, as well as holiday and special occasion time. The Independent Children’s Lawyer proposed that changeover occur at Suburb B McDonalds unless otherwise agreed in writing between the parents. The Independent Children’s Lawyer’s proposal is reproduced in the fourth schedule to these reasons.
Counsel for the father indicated that the father agreed with the minute of orders provided by the Independent Children’s Lawyer, save for the order as to the costs of the Independent Children’s Lawyer. Counsel for the mother outlined in a document provided to the Court via email correspondence, marked as exhibit R11, that the mother agreed to orders 1, 3, 4, 6, 7.2, 10-13, 15-17, 19-21, and 23-32 proposed by the Independent Children’s Lawyer, but asked that the word ‘telephone’ in order 13 be replaced by the words ‘parenting app’.
THE EVIDENCE
In support of his case, the father relied on the following documents:
(a)His Notice of Risk filed 5 January 2018;
(b)Child Dispute Conference Memorandum dated 10 July 2018;
(c)Family Report dated 27 July 2020;
(d)His Trial Affidavit filed 22 December 2020 and corresponding exhibits;
(e)His Further Amended Initiating Application filed 4 December 2020.
(f)A Case Outline document filed 8 January 2021; and
(g)Various documents tendered into evidence as exhibits A1 through to A19.
In support of her case, the mother relied on the following documents:
(a)Family Report dated 27 July 2020;
(b)Affidavit of Dr G filed 21 December 2020;
(c)Her Affidavit filed 22 December 2020;
(d)Affidavit of Ms H filed 23 December 2020;
(e)Affidavit of Ms J filed 27 December 2020;
(f)A Case Outline document filed 7 January 2021; and
(g)Various documents tendered into evidence as exhibits R1 through to R11.[1]
[1] Exhibit R8 was removed as a duplicate of exhibit ICL 12.
In support of her case, the Independent Children’s Lawyer relied on the following documents:
(a)Family Report dated 27 July 2020;
(b)A Case Outline document filed 6 January 2021; and
(c)Various documents tendered into evidence as exhibits ICL1 through to ICL18.[2]
[2] Exhibit ICL3 was removed as a duplicate of exhibit R2.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)       ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)       protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)       ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)       ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)       children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)       parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)       parents should agree about the future parenting of their children; and
(e)       children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)       to maintain a connection with that culture; and
(b)       to have the support, opportunity and encouragement necessary:
(i)        to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)       to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)       abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)       family violence.
(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)      Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)       consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)       consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)       a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)       the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)       consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)       consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)      Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)      In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)       the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)       the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)       the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (Abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

In WK v SR [1997] FamCA 57, the Full Court emphasised the standard of proof that applies in these cases at [47]:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at [18]-[19]:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at [38]-[39]:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
THE HEARING
The Applicant father was represented by his solicitor, and counsel Dr McConaghy. The mother was represented by her solicitor, and counsel Ms Knight. The child was represented by an Independent Children’s Lawyer, and counsel, Ms Messner. The final hearing took place during the COVID-19 pandemic and thus occurred via Microsoft Teams videoconference technology.
At times, the mother used an interpreter. Most of the time she seemed able to understand the questions asked of her and provided an answer in English. Sometimes she turned to the interpreter for assistance and this was professionally and readily provided. In assessing the mother’s evidence the Court is most conscious both of the anxiety that she claimed about the hearing and which she manifested at times, as well as the fact that the hearing was being conducted, and she was giving evidence, in English, which is not her language of birth.
Regrettably, there are issues of credit in this case. It is impossible to reconcile aspects of the evidence of the mother and father and it did become necessary to make findings of credit. For the most part the father presented his evidence in a forthright, confident fashion. He was rarely unresponsive to questions asked by counsel. His mastery of the English language seemed much better than that of the mother’s, but even he, at times, sought clarification of questions asked and even corrected answers that he had given. In assessing the father’s evidence, the Court had foremost in its mind the express and implied characterisation of the father in the mother’s case—that is, that he was controlling, manipulative and intelligent. Even so, the Court concludes that unless there are objective documents that contradict the father’s evidence, the evidence that he gave was true, logical and plausible. Unless otherwise indicated below, the Court accepts the father’s evidence. The reality of this case is that the challenges to the father’s evidence in cross-examination were few and far between and were largely unsuccessful. From the Court’s perspective, there was ample opportunity afforded to the mother, through her counsel, to systematically address the competing allegations in the evidence in cross-examination of the father. To the extent that this took place, it was unsuccessful.
By contrast, the Court has concerns about the veracity of the mother’s evidence. Even allowing, as foreshadowed, for issues relating to the mother’s language and her anxiety about the proceedings, she presented as pervasively unresponsive in cross-examination. There were inconsistencies within the mother’s evidence itself as well as glaring inconsistencies between the mother’s written and oral evidence, and the more objective material found in the business records that came into evidence as exhibits. As will be seen below, more than anything else the Court is concerned about the lack of plausibility in much of the mother’s evidence. This was unassisted by the mother’s unquestioning belief as to the accuracy of everything that the child purportedly told her, no matter how implausible such things were. Accordingly, this Court concludes that, where there is an issue in contention, unless the mother’s evidence is supported by objective documents that came into evidence, her evidence must be scrutinised carefully, and with deep discernment.
THE CASES SUMMARISED
In short, the father’s case was that there was no evidence of, nor any basis for concerns about, any unacceptable risk of harm for the child in the father’s care. The only evidence of unacceptable risk came from the mother and this evidence was both uncorroborated and largely implausible. The father contended that the real risk to the child was a risk of psychological and emotional harm as a result of being exposed to the mother’s anxieties and conduct which he described as alienating behaviour, in terms of his relationship with the child. On his behalf it was submitted that the mother’s proposal for permanent ongoing supervised time was not only unsupported by the evidence, but problematic from a legal perspective He submitted that there was no basis for an order for sole parental responsibility and the presumption of equal shared parental responsibility should apply in this regard. He contended that the child enjoyed a meaningful relationship with him and that this should not only continue, but be deepened by spending more time with his father. Whilst the father did not seem to dispute the mother’s account of the child’s dysregulated behaviour and withdrawn demeanour on returning to her care, he did dispute what appeared to be an important aspect of the mother’s case, which was that it was the time with the father that was causing this behaviour in the child. The father’s case contended that there were other plausible explanations for the child’s behaviour, including the mother’s mental health and in particular, anxiety, as well as an awareness on the child’s part of the parental conflict, and the mother’s felt enmity towards the father. Accordingly, it was submitted that it is in the child’s best interests for an order to be made for equal shared parental responsibility, and for substantial and significant time with his father.
By strong contrast, the mother contended that the father presented a serious, imminent, and ongoing risk of harm to the child. This was primarily a psychological or emotional harm in exposing the child to the father’s alleged relentless negativity and undermining of the mother, and the father’s efforts to inculcate this in the child, thus undermining his relationship with the mother. At one level, the mother’s case acknowledged her anxiety and suggested that this was one reason why the Court should be cautious in ordering time between the child and his father. Curiously, at another level, the mother’s case seemed to downplay her anxiety in the context of minimising concerns about her mental health. The mother’s case emphasised that it was not in the child’s interest to be exposed to the deep parental conflict between the parents. The mother’s case was that the father had been and continued to be coercive and controlling of her. This was another basis for greatly limiting the father’s time with the child. The mother’s case emphasised the constant and ongoing fear that she had of the father.
OUTLINE OF THESE REASONS FOR JUDGMENT
The Court will first consider the evidence of the family consultant, Ms C. Her Family Report is dated 27 July 2020. In discussing the report, and the subsequent cross-examination of Ms C on the final day of the hearing, the Court will also refer where appropriate to the evidence presented in the case generally. Indeed, the family consultant’s report and evidence, and the evidence in the case generally, will mutually inform each other.
Thereafter, the Court will consider the remaining evidence by reference to the primary and additional considerations that are set out in s 60CC of the Family Law Act.
THE EVIDENCE OF MS C
Family consultant Ms C conducted interviews by Microsoft Teams on 25 June 2020 with the parents, and then a face-to-face interview with the child on 10 July 2020, including observations of the child with both parents. She also had available to her what would appear to be, most, if not all the documents filed by the parties and the orders made in the proceedings to date. She also had available to her the extensive material produced on subpoena as at that time.
The report correctly identified the current arrangements at the time, the relevant family background, the history of the dispute, and the competing proposals of the parties at the time. At that time, the mother’s main proposal was to relocate to Country E with the child. At paragraph 16 of the report the mother is recorded as proposing to live with the child “in the Country E, Country K or European city and for this location not to be disclosed to Mr Lenkov”.
The family consultant records extensively her interviews with both parents. She records at paragraph 26, for example, that the father presented as “reflective, communicative, polite, and engaged well in the Family Report process”. She observed him to wish to focus on the future rather than the past, as he was concerned about how a focus on the past could affect the future possibility of an amicable co-parenting relationship. The Court observes that the father’s presentation to the family consultant was consistent with his presentation to the Court during his evidence.
At paragraph 37, and by contrast, the family consultant described the mother’s presentation as “worried, expressive and communicative”. This is consistent with the mother’s presentation to the Court during her evidence. Despite language barriers, there were clearly many things that the mother wanted to express and communicate in cross-examination and, from the Court’s perspective, provided she was responsive to the question, she was given ample opportunity to do so.
At paragraph 38 the mother told the family consultant that since the child has been spending time with his father “the child does not seem to have a good relationship with Mr Lenkov and that the child feels “he has to do what he is instructed to do” in regard to spending time with his father”.
At paragraphs 39 and 40 the family consultant records the mother’s concerns about a major theme of her case, i.e., the child’s safety, welfare and wellbeing when in the father’s care:
39. In regard to the child’s safety, welfare and wellbeing, Ms Serada said that the child’s personality has changed from the time he was having no contact with Mr Lenkov as the child used to be consistently “friendly, open, curious and talkative”. Ms Serada said that, since the child has begun to spend time with his father, the child is “withdrawn, depressed, scared and confused”. Ms Serada said that the child has previously been non-responsive for approximately five days as he was mostly non-communicative, began to have nightmares and wanted to sleep in her bed again. She said that the child informed her that Mr Lenkov allegedly punched him, was not adequately feeding him and did not attend to the child’s personal hygiene. Ms Serada said that the child used to have more concentration and focus but more recently seems to find this difficult. In addition, she said that the child speaks in a baby voice and forgets how to say words he could previously say. Ms Serada said that the child has wet his pants at his father’s home but that the child is toilet trained so she is not sure why the child wet his pants.
40. Ms Serada said that more recently, she is unsure how the child is going when he spends time with Mr Lenkov as the child has stopped telling her what he is “scared” of. She said that if she asks the child about his time with Mr Lenkov, the child informs her that he is not sure. Ms Serada said that, when the child is in the bath or just prior to falling asleep, the child discusses his time with his father. For example, Ms Serada said that the child has told her Mr Lenkov has made derogatory comments about her, such as Mr Lenkov told the child that he wants her to catch the Corona virus and die and that he wants to kill her and/or cut her fingers off and throw her in the garbage and/or the ocean. Furthermore, Ms Serada said that the child told her “Daddy doesn’t like you…”, “Mum do you love me, Dad says you don’t love me” and “Mummy you are so good, I don’t know why anyone would want to hurt you”. Ms Serada alleged that Mr Lenkov questions the child about where he lives and goes to childcare. Ms Serada said that the child does not want to spend time with his father and would rather spend time at the park with her. Ms Serada alleged that Mr Lenkov primarily feeds the child “candy and chocolate”. It is Ms Serada’s opinion that Mr Lenkov is coaching the child to say these things to her, as she indicated that when the child falls over, he tells her that she punched him and furthermore accused her of not feeding him if she does not give him candy and chocolate. This last sentence could be in contradiction with what she mentioned earlier in this paragraph as she said that the child has made similar comments about Mr Lenkov. Ms Serada said that she is worried about the child’s mental health and said that she has been using sensory-based strategies to help the child regulate his emotions and that she provides the child with emotion coaching.
Another major theme of the mother’s case was the family violence that she experienced, allegedly perpetrated by the father. The family consultant records the history that the mother gave in this regard at paragraphs 41 and 42.
A significant issue in the father’s case relates to the mother’s mental health. Paragraph 43 records what the mother told the family consultant in this regard:
43. In regard to parental mental health, Ms Serada said that she does not have any current mental health problems other than feeling “home sick” and being “scared” of Mr Lenkov. She said that, since she left the relationship with Mr Lenkov, she can now eat food without experiencing digestive problems and does not have anxiety. Ms Serada said that she had a loving and caring upbringing and that she has a strong relationship with her parents and siblings.
The mother’s assertion that she does not have any current mental health problems, including anxiety, is a contention that the mother maintained throughout the hearing.
Paragraph 47 seems to record the basis of the mother’s belief that the child’s time with his father must be supervised:
47. Ms Serada said that it is in the child’s best interests to have only supervised time with Mr Lenkov as he denigrates her in front of the child and she is worried about the child’s mental state if he were to continue to be exposed to further alleged denigration of her. She said that Mr Lenkov would not allow the child to see a child psychologist and she alleged that the child is not his focus but rather she is. Ms Serada said that it is in the child’s best interests for her to have sole parental responsibility for the child, as she is the person who has always made the decisions and that Mr Lenkov was never involved in the parenting of the child.
It is clear that the mother’s concern, and the need for supervision, is based on her belief that the father denigrates her in front of the child.
The family consultant noted the non-existent communication between the parents which, in the mother’s case, is based on her fear to have contact with the father, which could lead to him perpetrating further family violence.
The family consultant’s interaction with the child is recorded at paragraph 53. The child presented as reserved, nervous and shy, and the family consultant found it difficult to build rapport with him. She does note that in a projective activity, however, “the child depicted that both his mother and father are close in his heart”.
The observation of the interactions between the child and his parents is important evidence in this case. These are recorded at paragraphs 54-58, reproduced below:
54.      A Language K-speaking interpreter translated the observation of the child with both of his parents. The interpreter might not have understood some of the spoken words between the child and his parents as they might have spoken some words in a different dialect. The interpreter sat behind observation room double-sided mirror with the Family Consultant so that the child was alone with his individual parent for the observations.
55.      The child arrived to the Court with his mother. The child was reserved, shy and hesitant to engage with the Family Consultant and/or the interpreter. It is normal that the child would be shy and reserved when meeting a Family Consultant. Due to the Covid-19 restrictions, the Family Consultant did not have much time to attempt to build rapport with the child and it is considered that it is more difficult to build rapport in a short time frame when the child is naturally more reserved.
56.      The child was first observed with his mother. The child seemed excited to show his mother the picture he drew whilst he was with the Family Consultant. Ms Serada asked the child about his drawing, which showed the child that she was interested in his activity, and validated his excitement about him wanting to show her. Ms Serada’s play with the child was child led as she frequently asked the child what he wanted to play with or his thoughts about the drawing or what colour the child wanted her to use. the child asked his mother to draw a picture of “Mummy and Daddy” but whenever the child mentioned the word “Daddy”, Ms Serada did not acknowledge this. Ms Serada drew a picture of a boy and a father standing outside next to a tree with a bright shining sun. When the child asked, “Is Papa going to see this?” Ms Serada said, “Are you worried Daddy will see this” as she rubbed/patted his shoulder. When Ms Serada seemed to draw the child’s hair not to his liking, the child hit his mother in a passive manner on her arm. As he hit his mother, the child looked back at the double-sided mirror and smiled. Ms Serada responded by saying “no” and hugged the child as she said, “It is okay”. The Family Consultant considers that perhaps the child’s action to hit his mother was not genuine but rather to either get a reaction from his mother and/or the Family Consultant. The child’s behaviour towards his mother did not seem like that of a child in distress. Throughout the observation, the child and his mother had eye contact, smiled and laughed together and there were moments of affection as the child leaned against his mother whilst she drew him the picture and Ms Serada touched the child in an affectionate manner at times throughout the observation. Ms Serada praised and encouraged the child through comments such as “you are doing so well”, “wow, it is amazing” and good on you”. The atmosphere was mostly calm, quiet and contained. At the end of the observation, the child gave his mother several hugs goodbye as he was aware that Ms Serada was leaving the Court and it was his Court ordered time with his father. The child separated well from Ms Serada and happily went with the Family Consultant to greet his father.
57.      The child was then observed with his father. the child seemed excited to see his father as he accepted a warm embrace from his father when they greeted each other. He showed Mr Lenkov the drawing by Ms Serada and Mr Lenkov complimented the drawing. The conversation between the child and Mr Lenkov was free flowing and natural. Mr Lenkov prepared some paper pieces cut into a rectangle and circle for the child to make a paper “helicopter”. The child seemed comfortable to tell his father that Mr Lenkov was doing something the wrong way and the child also seemed to feel comfortable to ask his father for help to make the paper helicopter and Mr Lenkov supported the child with his request. The child seemed amused and enjoyed the activity as he was animated in his play, maintained eye contact with Mr Lenkov, smiled, laughed and engaged well in the activity. The child got on his father’s shoulders and played with the paper helicopter. This interaction seems organic and seamless. On two occasions towards the end of his observation with his father, the child had deep stomach laughter. Mr Lenkov put a boundary in place with the child as he told the child not to put the paper in his mouth and the child followed this boundary. The atmosphere was fun, natural, relaxed and seamless. The child held his father’s hand as they left the observation/Court.
58.      The observations between the child and each parent were quite different but it seemed that the child enjoyed his interactions with both parents. The Family Consultant considers that the child has a strong relationship with both of his parents, despite the limited time the child has spent with Mr Lenkov.

The family consultant’s evaluation commences from paragraph 59. She commences by noting that the concern in this matter is the quality of the child’s relationship with both of his parents and his physical and emotional safety prior to and once final orders are made. At paragraph 60, she identified that the main risk for the child is the alleged history of family violence and parental conflict. Paragraphs 60-62 are reproduced in full, given the significance of this issue in this case:
60.      The main risk for the child is the alleged history of family violence and the parental conflict. Both parents assert that they experienced family violence perpetrated by the other parent. It is Mr Lenkov’s narrative that Ms Serada was allegedly physically and emotionally abusive, threatening, intimidating, controlling and emotionally reactive. If Mr Lenkov’s narrative of the alleged family violence is accurate, it seems that the family violence was conflict instigated which arose in relation to Ms Serada allegedly finding it difficult to manage her emotions and cope with the distance between her and her friends and family and the despair she felt being apart from them. If Mr Lenkov’s allegations of family violence are true, it is possible that the child could continue to be exposed to Ms Serada’s allegedly emotionally reactive behaviour. For example, when the child might not follow Ms Serada’s instructions or if the child were to do something, she perceives as wrong, this could have a detrimental impact on the child’s emotional and/or physical wellbeing and his relationship with his mother if Ms Serada were not able to manage her emotions in a safe and healthy manner. The Family Consultant considers that this possible risk factor could be managed if Ms Serada continues to engage with mental health services/professionals to help her to manage her emotions and empower her to be more assertive in her communication. In addition, it is possible that Ms Serada might find it difficult to be a single mother of a child who potentially has some challenging behaviours and therefore, being close to her extended family (in the Country E) might help to increase the child’s safety whilst with his mother, if Mr Lenkov’s allegations are true.
61.      It is Ms Serada’s narrative that Mr Lenkov was allegedly physically, emotionally and financially abusive, threatening, intimidating and controlling towards her. If Ms Serada’s narrative of the alleged family violence is accurate, it seems that Mr Lenkov asserted power and control over Ms Serada in many aspects of her life, did not manage his emotions in a healthy manner, included the child in the dynamics of family violence and did not value Ms Serada’s dreams and aspirations. Ms Serada’s allegations that Mr Lenkov told the child that he wanted to kill and/or harm her is very concerning and potentially puts Ms Serada at a very significant risk of physical and psychological harm. If this allegation were true, it would be important to continue to withhold particular information from Mr Lenkov, for example, where the child lives and attends school, irrespective of what country the child were to live in. The Family Consultant is of the opinion that Mr Lenkov does currently know where the child attends childcare and it does not seem that any of Mr Lenkov’s recent behaviour suggests that he has attempted to cause any recent physical harm to Ms Serada and/or the child, however, this does not mean that no potential future risk could be guaranteed. If the Court determines that Mr Lenkov perpetrated family violence, it is suggested that he participate in a “Taking Responsibility” course.
62.      If the child were exposed to family violence in the future, it is possible that he could be scared and/or physically hurt by his parent’s alleged behaviour. Exposure to family violence could affect the child’s development and ability to concentrate on his learning, he could find it difficult to make healthy friendships; and find it difficult to problem solve. It is also possible that the child has already experienced some trauma whilst in gestation and in his earlier years due to exposure to the alleged family violence. Whilst this is a very serious concern, it seems that the child’s functioning and the quality of his relationship with both of his parents suggests that there are no acute signs of the child suffering from developmental trauma. Not only does the impact of the family violence directly affect the child but could indirectly affect him through the impact on the parenting capacity of both Ms Serada and Mr Lenkov, particularly with regard to Mr Lenkov’s alleged violence against Ms Serada, which reportedly results in her being fearful of him. If Mr Lenkov is preoccupied with using coercing and controlling family violence towards Ms Serada, it is highly likely that he is not focused on the child’s physical and emotional needs, would not be able to consistently respond to the child’s cues, and in addition, Mr Lenkov could be teaching the child some dysfunctional and disturbing behaviours. Concerning the impact of the alleged family violence on Ms Serada’s parenting capacity, it is possible that if she is living in a constant state of fear she might not be emotionally and/or physically available to tend to the child’s needs. It is possible that her mental health could significantly deteriorate if she continued to live in a constant state of fear. If the Court determines that Ms Serada perpetrated family violence, it is suggested that she continue to engage with her counsellor to learn further strategies to manage her emotions in a healthy manner.
As will become apparent below, the Court will find the father to be a better and more credible historian about family violence and parental conflict. It is also important to note that the family consultant found that there were no acute signs of the child suffering from developmental trauma, based on the child’s functioning and the quality of his relationship with both his parents.
At paragraph 63, the family consultant deals with parental conflict:
63. Concerning parental conflict and the co-parenting relationship, the co-parenting relationship seems to be characterised by a high degree mistrust and discord. Whilst it is acknowledged that it is normal for parents to experience a low level of conflict within a relationship, it is not healthy for a child not to have had the opportunity to see the repair that occurs after a rupture in a relationship has happened. the child is at a stage in his developmental where he learns through example, which he has not had the opportunity to observe between his parents. According to both parents, it seems that, since the child has spent time with Mr Lenkov, the child’s behaviour has changed and/or is inconsistent. For example, the child being withdrawn and rigid at changeovers or the child’s eating habits in the other parent’s care. The Family Consultant considers the change in the child’s behaviour/presentation could be due to several reasons. For example, it could be that the child is changing his behaviour/presentation to that which he perceives his parents want or it could be due to the child experiencing an internal struggle about his relationships with both of his parents due to the parents’ extremely poor co-parenting relationship. It is extremely important that each parent does not play into the child’s negative comments about the other parent but rather be curious about these comments and attempt to promote the positive qualities about the other parent to the child. It is imperative that the child is not exposed to negative comments made by one parent about the other parent, and that he is able to feel comfortable to tell each parent about his time with the other parent without having the fear of being questioned and/or getting the other parent into trouble. It is likely that Ms Serada and Mr Lenkov may continue to have trouble to engage in an effective and respectful co-parenting relationship and lack the ability to promote the child having a meaningful relationship with the other parent. Prior to final Orders being made and depending on the outcome of the final Orders, it would be important that Orders limit Mr Lenkov’s and Ms Serada’s interactions with each other to help protect the child from being exposed to parental conflict and/or helping to reduce the child experiencing any unnecessary uncomfortable feelings during changeovers. The Court might consider that changeovers occur at the child’s childcare/school to reduce his potential future exposure to parental conflict. The parents may also find it helpful to use a parenting “app” to communicate about the child and his needs.
(errors in original)
This is an important paragraph. The changes in the child’s behaviour on his return to his mother’s care after spending time with his father are matters of fact which the Court is prepared to accept. It is possible that the mother’s account of this in her evidence is exaggerated, but there is still a solid kernel of truth.
At paragraph 63, the family consultant considers why this might be taking place. The example that Ms C gave here about the child changing his behaviour/presentation to that which he perceives his parents want, is not a possibility that the mother seems to have taken on board. The other possibility Ms C raises is that the child’s behaviour change is due to him experiencing an internal struggle about his relationships with both of his parents, due to their extremely poor co-parenting relationship. Once again, the mother appears not to have taken this on board. Her evidence was clear and unequivocal – the cause of the child’s behaviour was exclusively what happens during his time with his father. Moreover, the mother appears to not have considered Ms C’s advice about the importance of each parent not playing into the child’s negative comments about the other.
Paragraph 64 deals with parental mental health:
64. In regard to parental mental health, it is unclear if Ms Serada and/or Mr Lenkov have serious diagnosed and/or undiagnosed mental health problems. It also unclear if Ms Serada’s alleged poor mental health is due to having a predisposition to mental health problems and/or if the alleged poor mental health is situational in regard to the alleged family violence and being isolated from her family. If Ms Serada’s narrative is accurate, it seems that she suffered emotional distress from her experience of alleged family violence and being home sick. Ms Serada denied having any chronic mental health problems and indicated that, post-separation, she has not had unstable mental health but rather that her mental health has significantly improved. Ms Serada might find it of benefit to become more involved in her fashion design career once the child attends formal education as this might support her in maintaining stable mental health. In regard to Mr Lenkov and the allegations of poor mental health, the Family Consultant considers that, if the allegations of family violence are true, it is possible that Mr Lenkov struggles to manage his emotions in a healthy manner. The Family Consultant is not able to comment on Mr Lenkov’s medical condition and whether this negatively affects his mental health. If either Ms Serada and/or Mr Lenkov’s mental health were to decline and be left unmanaged or not managed effectively, it would not be healthy for the child and could contribute to adverse outcomes for the child, such as exposure to parental conflict or some emotional distress from being worried or scared about his parent/s’ behaviour. If either parent has unmanaged mental health problems, they would need to be proactive and gain support to develop insight into how having unmanaged mental health problems could affect their parenting capacity and their ability to communicate effectively. The Family Consultant considers it a strength that Ms Serada has accessed support to promote stable mental health. If the Court has evidentiary material to suggest that either parent does have serious mental health problems that are unmanaged, the parent/s might find it beneficial to engage in ongoing therapeutic support to help them learn strategies to manage their emotions in a healthy manner and improve their ability to communicate effectively.
As will be seen, the Court will find that the mother has a long history of mental health concerns which are largely unaddressed and in respect of which the mother seems unwilling to acknowledge.
At paragraphs 66-67, Ms C considers the issue of the child’s time with his father, away from his mother:
66. The child is at a stage of development where he is developing more independence, in terms of being able to spend time away from his primary carer, who has been Ms Serada. It is normal for a child of the child’s age to want to primarily live with one parent but also be curious to explore the world around him and have experiences with others away from his primary carer, however still have feelings of apprehension about this. The child expressed that he enjoys the time he spends with both his parents. The child’s history of care has meant that he has had limited time to spend with Mr Lenkov, which could have made it difficult for them to be able to strengthen their relationship. It seems that Ms Serada believes that she has been protective of the child by restricting the child’s time with his father. However, if the child were to relocate to the other side of the world, it is likely that the child would not have a meaningful relationship with his father.
67. The child’s history of care has meant that he has not been able to spend quality time with Mr Lenkov from a young age, despite this, the child seemed comfortable to engage with his father during the observation and there seems to be a solid foundation of a strong relationship between the child and his father. In regard to Ms Serada’s concerns in changes to the child’s temperament and behaviour, it may be that the child struggles with changes/transitions between his parents and that he might find it difficult to be away from his mother who has been his primary carer. Although it appears that the child feels comfortable and seems to have fun and affectionate relationships with both of his parents as was demonstrated in the observations, it does not mean that he will necessarily tolerate a significant change in his parenting arrangement, for example an equal time parenting arrangement or an international relocation. It is imperative that Mr Lenkov and Ms Serada provide the child with emotional support and reassurance to help him feel more settled when he transitions between the two households. The child is about to experience a significant milestone in his life, his commencement of formal education and/or an international relocation. This would be a huge adjustment for the child. It would be important that Ms Serada and Mr Lenkov are able to communicate with each other about how the child is managing the changes in order to support the child to feel more settled and supported. Whilst the child was not directly asked his expressed views (due to the child’s reserved and shy nature and his cognitive abilities) in terms of what he would like his future parenting arrangement to be, the Family Consultant considers that some weight can be placed on the assessment of the child’s seemingly good relationship with both of his parents and the observation that he feels comfortable in both of his parents’ care
These paragraphs emphasise the importance of managing transition for the child, from one parental household to another.
At paragraph 68, Ms C raises issues about the child’s brain development, particularly in the context of an international relocation. At paragraph 69, she deals with the child’s identity and sense of belonging, again in the context of international relocation.
The international relocation is discussed at length in the report but is not pertinent in the present context. Some of the issues between the parents that ultimately led Ms C to suggest that international relocation was contra-indicated are still relevant. For example, she observed that the poor co-parenting relationship would most likely make it difficult for the parents to communicate, an issue that is exacerbated if the mother and the child were allowed to relocate internationally.
At paragraph 73, the family consultant addresses the mother’s proposal for the child to spend time with his father:
73. In the event that the Court determines it is in the child’s best interests to remain in Sydney Australia, Ms Serada’s proposal that the child live with her and spend supervised time once a month with Mr Lenkov is not a practical long-term option. Furthermore, the Family Consultant considers that this parenting arrangement is unnecessarily restrictive and does not provide the child with the opportunity to have a meaningful relationship with his father. The Family Consultant acknowledges that Ms Serada is fearful of Mr Lenkov and is worried about hers and the child’s safety. It seems that Ms Serada’s concern could be managed by strict Orders prohibiting Mr Lenkov from coming into contact or communicating with Ms Serada unless it is in relation to the child’s health or changeover problems.
It is clear from this paragraph that the family consultant was very much aware of the mother’s concerns and fear of the father, but nonetheless was of the view that supervised and limited contact was unnecessarily restrictive.
Commencing from paragraph 75, Ms C’s evaluation focuses on the child remaining in Australia.:
75. If the Court determines that it is in the child’s best interests to remain in Australia, there are also potential risks and benefits as discussed above, the most considerable risk being that the child may be impacted by a decline in Ms Serada’s mental health and the child’s exposure to alleged family violence and parental conflict. However, this being said, there are services that have been put in place to manage these risks. For example, Ms Serada is engaged with several support and mental health services to help her manage her mental health and the child’s mental health. In addition, if the Court determines Mr Lenkov was abusive towards Ms Serada, he could engage in the “Taking Responsibility” course to help him take accountability for his allegedly abusive behaviour, furthermore, the Court could make strict Orders to limit Mr Lenkov’s interactions with Ms Serada and the child when the child is in his mother’s care. The Family Consultant considers that the child seems to have the start of a strong relationship with his father and it could have a detrimental impact on the child’s emotional wellbeing if he did not continue to have the ability to have a strong relationship with his father. If the Court decides that the child should remain in Australia, it will be recommended that the child’s parenting arrangement increase incrementally to lead to a significant and substantial time parenting arrangement and that changeover occurs from the child’s childcare/school. If the child were to live in a significant and substantial time parenting arrangement he would have the benefit of having Mr Lenkov more involved in the different aspects of the child’s life, such as schooling, health and aspects of his social life whilst helping to minimise the child being exposed to further parental conflict. It is suggested that the child continues to see his counsellor to help him manage with the changes to his future parenting arrangement and have a safe and impartial place to express his feelings and emotions. It would be important that both parents reassure the child and provide him with comfort if the child does find the transition to increased time with his father to be difficult. It would be important that the parents do not interrogate the child about his time with the other parent.
76. Due to the family violence allegations made by Ms Serada, in combination with the apparent lack of communication between the parents, the Family Consultant’s assessment of the parents’ capacity to exercise equal shared parental responsibility is that this would be problematic for them to have shared parental responsibility for the child. However, both parents love the child dearly and he seems to love them, and it would be a shame for the child to lose either parent’s perspective when it comes to future decisions being made for the child. Therefore, the Family Consultant is not able to make a recommendation about what is in the child’s best interests in regard to parental responsibility, if the child were to remain in Australia. If the Court determines that it would be in the child’s best interests to live in the Country E/Europe, it would seem difficult for the parents to have equal shared parental responsibility for the child. If the Court permits Ms Serada and the child to relocate to the Country E/Europe, it is suggested that Ms Serada have sole parental responsibility for the child. However, is suggested that Ms Serada still makes an effort to discuss things with Mr Lenkov prior to making a decision for the child. In regard to Mr Lenkov’s proposal that he have sole parental responsibility for the child’s education, the Family Consultant considers that perhaps the Court could make Orders about what school the child should attend. Perhaps each parent could enrol the child in one school each within a certain radius of the child’s childcare and/or local school catchment area and the Court determine what school the child should attend if the parents are unable to come to an agreement.

Any remainder days to be split equally between the parties.

7.That the child spend time with the Father on Father’s Day from 9.00 a.m. until the commencement of school on the day following Father’s Day.
8.In the event that the Father’s time with the child shall coincide with Mother’s Day, the Father’s time with the child shall be suspended from 9.00 a.m. until the commencement of school on day following Mother’s Day.
9.That each party be restrained from making critical or derogatory remarks about the other party to or in the presence or hearing of the child, or allowing the child to remain in the presence or hearing of any other person who is making critical or derogatory remarks in relation to the other party.
10.That each party be restrained from discussing these proceedings (other than in relation to any orders affecting the child or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, or any of them, and from permitting any other person (other than the ICL) to do so.
11.The parent with whom the child is living at the time shall have responsibility for making day-to-day decisions concerning the child without reference to the other parent.
12.That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and email addresses.
13.That the Father keep the Mother informed of his residential address.
14.That each party is to facilitate from 6 p.m. to 6.30 p.m. each day until the child attains 8 years of age and thereafter each Wednesday and Sunday, private telephone communication as well as other forms of electronic communication including email, texting, messenger, facebook, Instagram and skype between the child and the other party whilst they are in their care. Each party is to encourage such private telephone time at any reasonable time either initiated by the other party or as requested by the child and such communication is to be limited to 30 minutes.
15.That each party keep the other informed of the child’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations.
16.That in the event of a medical emergency, the party in whose care the child is at the relevant time, is to inform the other party as soon as reasonably practicable.
17.That each party will inform the other of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.
18.That each party is at liberty to attend the child’s doctors’ visits, specialists’ visits, dental visits, hospital admissions and all other places, appointments, meetings or events in relation to the child’s health and treatment and that either parent will inform the other of such appointments, meetings or events within 7 days of the said appointment, meeting or event.
19.That each party will ensure the other party’s contact details will be included on the child’s school enrolment documents, and extracurricular activity enrolment documents and sporting activity enrolment documents.
20.That each party be permitted to liaise directly with the child’s school, extracurricular activities and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
21.That each party is at liberty to attend at the child’s school or extracurricular activities for school events or for general purposes including for any function or activity normally attended by parents or as requested by the child.
22.That each party keep the other informed of the child’s progress at school as well as all parent/teacher appointments, co-curricular activities involving the child so as to provide the other with the opportunity to attend.
23.In the event that the school will only provide one party with child related information, then the party that receives school notices, information, newsletters, school reports, school photographs (with each party to pay the cost of their copies) is to provide copies of them to the other party within 7 days of receipt by that party.
24.That in the event of the child is unwell and is unable to attend school for more than 1 consecutive day due to a medical illness then the party in whose care the child is in is to provide a medical certificate to the school which covers all days that the child is absent from school.
25.That for the purposes of these Orders:
a)that changeover other than at the school or scheduled activity or event to take place at Suburb B McDonalds, unless otherwise agreed in writing between the parents;
b)that at the changeover, the parents or their agents may attend, provided the parents have communicated the names of the agent in writing to each other.

26.That the parties shall execute all necessary documents to enrol the child at D Public School for Term 1 of 2021 and thereafter the consent of both parents is required for the child to be enrolled in any other school.
27.That the Mother will withdraw the school enrolment form she signed on 17 December 2020 and will complete a new school enrolment form including the Father’s details and without and reference to allegations that the Father has abused the child.
28.That the parties shall do all acts and things to arrange for the parties and the child to attend on a family therapist as recommended by the Independent Children’s Lawyer for the purpose of confidential family therapy.
29.That the child be restrained from attending any family therapy or other therapy with Dr G.
30.That on attending the family therapy with the family therapist in accordance with order 27 herein, the mother and the father shall ensure that:
a)They and the child attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments any recommendation that either party participate in any parenting or other course or program recommended by the family therapist; and
b)That both parties do all acts and things to provide the family therapist with an irrevocable authority for the family therapist to advise the parties in writing, on the request of the parties or on the family therapist’s own determination, the date appointments have been scheduled with the family therapist for the child and the parties to attend, and whether the parties and the child attended those appointments.

31.That within 14 days of the provision by the Independent Children’s Lawyer of the recommendation for a family therapist, the mother and the father shall contact the family therapist to book to attend an appointment with the family therapist within the next 2 weeks or on the next available date.
32.That both parties provide the other party with confirmation that they have attended an initial appointment with the family therapist in writing within 7 days of attending on the family therapist.
33.That the Mother be responsible for:
a)Attending on her General Practitioner with the child to obtain a Mental Health Plan for herself and the child; and
b)Any and all Costs associated with any individual appointments she is required to attend requested by the family therapist.

34.That the Father be responsible for:
a)Attending on his General Practitioner to obtain a Mental Health Plan for himself.
b)Any and all Costs associated with any individual appointments he is required to attend requested by the family therapist.

35.The parties are to share equally the costs of the child’s appointments with the family therapist.
36.That the Court give leave to provide the family therapist appointed in accordance with order 27 herein with the family report prepared by Family Consultant Ms C dated 27 July 2020.
37.That from 15 December 2030, each party be permitted to travel internationally with the child subject to the following conditions:
a)That the party wishing to travel internationally with the children give to the other party sixty (60) days written notice including details of dates of travel, destination of travel, itineraries, copies of tickets, accommodation information and related contact details;
b)That such international travel take place in a period which includes the child’s school holidays and during the time that the child would be spending with the travelling parent in accordance with orders 5 and 6 above (unless otherwise agreed by the parents);
c)That such international travel be for no longer than 3 weeks on each occasion (unless otherwise agreed by the parents);
d)That such international travel take place in relation to each parent in each alternate year;
e)That the Father hold the child’s original Australian and Country E passports and give the Mother a copy of same;
f)That the Father is to provide the Mother with the child’s original Australian and Country E passports within 7 days of receipt of evidence of agreed international travel including itineraries, copies of tickets, accommodation information and relevant contact details and that the Mother is to return the child’s original Australian and Country E passports to the Father within 7 days of returning to Australia;
g)That the consent of both parents is required for any international travel for the child and that neither parent will unreasonably withhold consent except in accordance with Australian Government travel warnings or restrictions or for some other reasonable excuse.

38.That the Mother enrols in and completes a Parenting After Separation course and provides a copy of the Certificate of Completion to the Father within 6 months of the date of these Orders.
39.That all previous orders be discharged.
40.That there be no order as to costs of the Mother and Father to the intent that each party pay their own costs of these proceedings.

DATED this               day of             2021.
SCHEDULE C
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SYC33/2018
BETWEEN:  MR LENKOV
Applicant Father
AND:  MS SERADA
  Respondent Mother
AND:  INDEPENDENT CHILDREN’S LAWYER
RESPONDENT MOTHER’S PROPOSED MINUTE OF ORDER
THAT:

All previous Orders be discharged.

The child Z (born … 2015) (“the child”) live with the Mother.

Parental responsibility

The Mother have sole parental responsibility for the child, including with respect to the Australian Passports Act 2005.

Time

The Father spend supervised time with the child as agreed, and failing agreement as follows:

For three (3) hours on the first Saturday of each calendar month from 2pm to 5pm;

Supervised by P Contact Service;

At the Father’s sole cost.

In the event this Honourable Court does not form the view that the child is at such risk in the Father’s care that supervised time is in the child’s best interests, the Father spend unsupervised time with the child as follows:

During school terms: each week from 5pm Friday to 5pm Saturday;

Father’s Day: from 5pm on Saturday to 5pm Sunday;

Christmas: from 5pm on 24 December to 5pm on 25 December;

Changeover: the Mother and Father shall meet at Suburb B Police Station

If, in accordance with Order 5, the Father is due to spend time with the child on the weekend of Mother’s Day, that time is suspended. The child shall spend time with the Mother from the end of school Friday to the start of school Monday.

On one occasion, to be nominated by the Mother in writing with 4 weeks’ notice, the Father’s term time shall be suspended for up to 6 weeks in the middle of the year to enable the Mother and child to travel to Country E during the Northern Hemisphere Summer.

Communication and Information

The Mother and Father keep each other informed of their email address and notify the other within twenty-four (24) hours of a change.

The Mother and Father shall communicate by email or by parenting app, and in the event there is a fee for the app the Father shall pay the full cost.

The Father keep the Mother informed of his residential address.

The Mother and Father keep each other informed of:

Any medical problem or illness the child suffers in their care;

Any medication or treatment prescribed for the child; and

Any other matter relevant to the child’s health.

The Mother and Father do all things and sign all documents necessary to enable each parent to communicate with, and receive information from, the child’s health care providers.

Travel

The name of the child Z Lenkov (born … 2015) forthwith be removed from the Airport Watch List.

On the first occasion the Father spends time with the child following the making of these Orders, the Father shall return to the Mother any passport/s for the child currently in the Father’s possession.

The Mother and Father be permitted to travel with the child outside the Commonwealth of Australia during their ordinary time with the child, or at other times as agreed.

The Mother and Father be restrained by injunction from taking the child to any country or region for which the Australian Government advice at the time is “do not travel”.

For the purposes of any travel outside the Commonwealth of Australia, the travelling parent shall provide the following information to the other parent four (4) weeks before departure:

Proof of return airfares;

Itinerary; and

Address and telephone number of any place the child will be staying.

If there is any change to the information in Order 17, the travelling parent will notify the other parent as soon as possible.

The Mother shall hold the child’s passport/s but shall make the passport/s available to the Father for the purposes of travel in Orders 15, 16, and 17 above and the Father shall return the passport/s to the Mother when returning the child to her care at the end of travel.

Injunctions

The Mother and Father be restrained by injunction from:

Denigrating the other parent in the child’s presence or hearing;

Discussing these proceedings in the child’s presence or hearing; or

Showing the child any document connected with these proceedings.

The Mother and Father shall use their best efforts to ensure no other person:

Denigrates the other parent in the child’s presence or hearing;

Discusses these proceedings in the child’s presence or hearing; or

Shows the child any document connected with these proceedings.

The Father be restrained by injunction from attending the Mother’s home or place of work.

Family Report
23.That leave be granted to provide a copy of the Family Report to the Mother’s health care professionals.

SCHEDULE D
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT SYDNEY
File No. (P)SYC33/2018
BETWEEN
MR LENKOV
(Applicant)
AND
MS SERADA
(Respondent)
AND
INDEPENDENT CHILDREN’S LAWYER
MINUTE OF FINAL ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
THE COURT ORDERS:
1.   All previous Orders be discharged.
2.    That the parties have equal shared parental responsibility for the child, Z born … 2015 (hereinafter referred to as “the child”).
3.   That the parent with whom the child is living at the time shall have responsibility for making day-to-day decisions concerning the child without reference to the other parent.
4.   That the child lives with the Mother.
5.   That the child spends time with the Father, as agreed between the parties in writing and failing agreement, as follows:
5.1.from the date of these orders to the commencement of Term 2, 2021:
5.1.1.In week 1, from after school or 3.00 p.m. Friday until before school or 9 a.m. Monday; and
5.1.2.In week 2, from after school or 3.00 p.m. Thursday until before school or 9 a.m. on Friday.

5.2.From Term 2, 2021 and thereafter, save for the Terms 2 and 4 school holidays:
5.2.1.In week 1, from after school or 3.00 p.m. Thursday until before school or 9 a.m. Monday; and
5.2.2.In week 2, from after school or 3.00 p.m. Thursday until before school or 9 a.m. on Friday.

5.3.During each Term 2 school holidays, as follows:
5.3.1.from after school on the last day of school until 10 a.m. on the middle Saturday of the holidays in even numbered years; and
5.3.2.from 10 a.m. on the middle Saturday until the commencement of school in odd numbered years.

5.4.From 2021 to 2023, during the Term 4 school holidays:
5.4.1.In odd numbered years, in alternating blocks of 7 nights, from the conclusion of School on the last day of the School Term for a period of 7 nights and until 10 a.m. on the day following the seventh night;
5.4.2.In even numbered years, in alternating blocks of 7 nights, from 10 am on the day following the seventh night that the child have spent with the mother, for a period of seven nights and until 10 a.m. on the day following the seventh night with the father;
5.4.3.in the event of less than seven nights of the school holidays being left, the child to remain in the care of that parent until the first day of school Term 1.

5.5.From 2024, each Term 4 school holidays and thereafter:
5.5.1.In three week blocks, the first half in even numbered years; and
5.5.2.In the second three week block in odd numbered years.

5.6.On Father’s Day from 10 a.m. until the commencement of school on the day following Father’s Day.

6. In the event that the Father’s time with the child shall coincide with Mother’s Day, the Father’s time with the child shall be suspended from 10 a.m. until the commencement of school on day following Mother’s Day.
Changeover:
7. That for the purposes of these Orders:
7.1.that changeover other than at the school or scheduled activity or event to take place at Suburb B McDonalds, unless otherwise agreed in writing between the parents;
7.2.that at changeover, the parents or their agents may attend, provided the parents have communicated the names of the agent in writing to each other.

Communications:
8. That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and email addresses and notify the other within 24 hours of any change to those contact details.
9. That each party is to facilitate private telephone and electronic communication from 6 p.m. to 6.30 p.m. each Monday between the child and the other party whilst he is in their care. Each party is to encourage such private telephone time at any reasonable time either initiated by the other party or as requested by the child and such communication is to be limited to 30 minutes.
10. The parties shall communicate with each other using the “Our Family Wizard” parenting app and only in relation to matters concerning the child’s arrangements or in relation to obligations as to parental responsibility including medical and psychological treatment and education, unless in the case of an emergency.
11. That each party be restrained from:
11.1.questioning the child about the other parent, about periods when the child was spending time with that other parent;
11.2.use corporal punishment or physical force when disciplining the child;
11.3.assault or threaten the child;
11.4.denigrate the other party (or any member of the other party's family) in the presence or hearing of the child, and use their best endeavours to ensure no other person denigrates the other party or many member of the other party’s family in the presence or hearing of the child;
11.5.involve the child in matters concerning parenting arrangements; and

11.6.show the child, permit the child to read or make the child aware of any communication between the parties pertaining to arrangements;

Health:
12. That each party keep the other informed of the child’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations.
13. The parties each notify the other by telephone call (and if not reachable, text message), as soon as practical and in any event not more than three hours after the emergency or illness first occurring, upon the child suffering any serious medical emergency and/or illness whilst in their respective care, including by providing details of the relevant Hospital or health practitioner on which the child has or is attending, and authorise such to provide to the other at his/her request and expense, information and/or reports concerning the child.
14. That each party is at liberty to attend the child’s medical, dental, and specialist appointments and hospital admissions in relation to the child’s health and treatment and that either parent will inform the other of such appointments or events within 7 days of the said appointment or event.
15. The parties each do all acts and things and sign all documents necessary to authorise each medical professional or health care provider, treating the child to provide a copy of any test results, letters of referral, reports and other letters relating to the treatment of the child, to the other, and each party provide to the other the name address and telephone number of each medical professional treating the child, upon request at each parties’ own expense.
16. That in the event the child is unwell and is unable to attend school for more than 1 consecutive day due to a medical illness, then the party in whose care the child is in is to provide a medical certificate to the school which covers all days that the child is absent from school.
17. That leave be granted to provide a copy of the Family Report prepared by Family Consultant Ms C dated 27 July 2020 to the Mother’s health care professionals.
18. That parties are restrained from taking the child to attend upon any counsellor, psychologist, psychiatrist or therapist, unless ordered by the court or with the written consent of the other party.
Education:
19. That the mother to withdraw all previous school enrolment applications completed for the child.
20. That the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in D Public School to commence in Term 1, 2021, including and not limited to:
20.1.That by 15 January 2021, the Father to complete a new school enrolment application to enroll the child into D Public School and to forward the application to the Mother’s solicitor;
20.2.That by 18 January 2021, the Mother to complete her section of the enrolment application and forward the completed application to the D Public School; and
20.3.That the parties are restrained from adding further information in the school enrolment application, except to include the relevant current Court Order.

21. That by 18 January 2021, the mother’s solicitor to forward a copy of the completed enrolment application to the father’s solicitor and the Independent Children’s Lawyer, save for the mother’s address to be redacted in the enrolment form.
22. The parties each to do all acts and things and sign all documents necessary to authorise the Principal and staff of the School(s) the child attend, to supply both parents with all school reports, school photographs, school counsellor's notes, memos, school newsletters, and any other information in relation to the child, that either party may request from the School(s), at each parties' own expense.
23. That the parties are granted leave to provide a copy of these orders to D Public School.
Family Therapy:
24. That the parties shall do all acts and things to arrange for the parties and the child to attend on a family therapist as recommended by the Independent Children’s Lawyer for the purpose of confidential family therapy.
25. That on attending the family therapy with the family therapist, the mother and the father shall ensure that:
25.1.They and the child attend on the family therapist as and when directed by the family therapist and follow any reasonable request, direction or requirement of the family therapist, including but not limited to the frequency of appointments any recommendation that either party participate in any parenting or other course or program recommended by the family therapist; and
25.2.That both parties do all acts and things to provide the family therapist with an irrevocable authority for the family therapist to advise the parties in writing, on the request of the parties or on the family therapist’s own determination, the date appointments have been scheduled with the family therapist for the child and the parties to attend, and whether the parties and the child attended those appointments.

26. That within 14 days of the provision by the Independent Children’s Lawyer of the recommendation for a family therapist, the mother and the father shall contact the family therapist to book to attend an appointment with the family therapist within the next 2 weeks or on the next available date.
27. That both parties provide the other party with confirmation that they have attended an initial appointment with the family therapist in writing within 7 days of attending on the family therapist.
28. That the Mother be responsible for:
28.1.Attending on her General Practitioner with the child to obtain a Mental Health Plan for herself and the child; and
28.2.Any and all Costs associated with any individual appointments she is required to attend requested by the family therapist.

29. That the Father be responsible for:
29.1.Attending on his General Practitioner to obtain a Mental Health Plan for himself.
29.2.Any and all Costs associated with any individual appointments he is required to attend requested by the family therapist.

30. The father be responsible for the costs of the child’s appointments with the family therapist.
31. That the Court give leave to the Independent Children’s Lawyer to provide the family therapist appointed herein with the family report prepared by Family Consultant Ms C dated 27 July 2020.
32. That the Mother to enrol in and complete a Parenting After Separation course and provides a copy of the Certificate of Completion to the Father within 6 months of the date of these Orders.
Passport:
33. Within 14 days, the party holding the child’s Australian and / or Country E’s passport(s) to deliver such passport(s) to the Registrar of the Family Court of Australia, Sydney Registry and the Family Court shall hold the child’s passport(s) until he turns eighteen (18) years of age or the parties otherwise agree or pursuant to court order.
Travel:
34. That subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, (Mr Lenkov, born … 1981; Ms Serada, born … 1984) 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 (Z, born … 2015) from the Commonwealth of Australia for a period of time until the child turns eighteen (18) years of age; 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.
Costs:
35. That within 21 days, the father to pay Legal Aid NSW the sum of $7,108.75 being the contribution costs of the Independent Children's Lawyer in the parenting proceedings between the parties.

File number(s):	SYC 33 of 2018
Judgment of:	ALTOBELLI J
Date of judgment:	14 April 2021
Catchwords:	FAMILY LAW – PARENTING – Final parenting orders – Where mother alleges family violence – Where mother asserts the child is fearful of the father – Where there is no objective evidence supporting mother’s claims – Where Family Report is available – Where Family Report indicates meaningful relationship between the child and both parents – Where Court makes credit findings – Where Court finds the child would benefit from a meaningful relationship with both parents – Orders made for child to live with the mother and spend time with the father.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV
Cases cited:	MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 WK v SR (1997) FLC 92-787; [1997] FamCA 57
Number of paragraphs:	191
Date of last submission/s:	14 January 2021
Date of hearing:	11-14 January 2021
Place:	Sydney via videoconference
Counsel for the Applicant:	Dr McConaghy
Solicitor for the Applicant:	Rennie Lawyers & Notaries
Counsel for the Respondent:	Ms Knight
Solicitor for the Respondent:	Hillcrest Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Messner
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 33 of 2018
BETWEEN:	MR LENKOV Applicant
AND:	MS SERADA Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	14 APRIL 2021