Monroe & Purdue - [2025] FedCFamC1F 249

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monroe & Purdue [2025] FedCFamC1F 249

File number(s): SYC 1376 of 2017

Judgment of: JARRETT J

Date of judgment: 16 April 2025

Catchwords: FAMILY LAW – PARENTING – competing applications for child to live with – earlier final orders – no change in circumstances – s 65DAAA(1) engaged– applications dismissed and earlier orders implemented

Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 65CA, 65CG 65DAAA,

Cases cited: Radecki & Radecki [2024] FedCFamC1A 246

Division: Division 1 First Instance

Number of paragraphs: 182

Date of hearing: 1, 2, 3, 4 & 5 July 2024

Place: Sydney

Counsel for the Applicant: Ms Petrie

Solicitors for the Applicant: Nolan Lawyers

Counsel for the Respondent: Ms Gillies SC with Ms Bromberger

Solicitors for the Respondent: Paul & Paul Lawyers

Counsel for the Independent Children’s Lawyer: Ms Stolier

Solicitors for the Independent Children’s Lawyer: Brian Samuel & Associates
ORDERS

SYC 1376 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PURDUE

Applicant

AND:
MS MONROE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

16 APRIL 2025

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed on 29 August 2023 is dismissed.
2.The Amended Response to Final Orders filed on 26 April 2024 is dismissed.
3.All extant interim parenting orders are discharged.
4.The final parenting orders made on 7 June 2018 shall resume operation from the commencement of the school term immediately following the 2025 Easter school holidays and for that purpose:
(a)order 2(c) shall be immediately implemented upon resumption of those orders; and
(b)G shall live with the applicant for the purposes of the first week of the resumed orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

This case is about the parenting arrangements for G, now aged 8 years. Her parents, Mr Purdue and Ms Monroe (the applicant and the respondent respectively) commenced a relationship in mid-2014 which endured until January 2017.
Dr O is a child, adolescent, adult & family psychiatrist who, after interviewing the parties and G in October 2022 and reviewing other relevant material, provided a report dated 19 June 2023 for the court’s assistance. In it, Dr O says:
644.My impression is that [G] is fortunate that she has two parents each of whom is very committed to her and to her welfare. Both have consistently over the years prioritised taking the opportunity to participate in decisions about [G] and to remain connected with her. Both provide adequate and actually quite kind and engaged day to day care for [G], and meet her basic day to day needs.
These observations are consistent with my own observations of the parties. I have no doubt that G is indeed fortunate by reason of the matters identified by Dr O. However, despite these qualities, the parties are in disagreement about the parenting arrangements for G; and not for the first time. These parties previously approached the court for assistance in settling the parenting arrangements for G in 2017. That proceeding was resolved by consent orders made on 7 June 2018. However, in the face of the conflict that continues to rage between G’s parents, those orders did not hold the fort for long. This application was commenced in May 2021. Both parties seek that the final orders made in June 2018 be discharged and new orders made in their stead.
THE PRESENT ARRANGEMENTS
The applicant commenced these proceedings to answer the respondent withholding G from spending any time with him in April 2021. By that time, G was living with the respondent from 9.00am Saturday to 5.00pm Wednesday in one week and from 9.00am Monday to 5.00pm Wednesday each other week – a total of 6 nights out of every 14. At all other times she was living with the applicant. The applicant and the respondent had, and continue to have, equal shared parental responsibility for decisions concerning the major long-term issues for G. The orders further provided that when G commenced primary school she would live in a week about arrangement between the parties.
Since the commencement of this application, interim orders have changed the parenting arrangements established by the June 2018 orders. The present arrangements are governed by two interim orders, one made on 7 July 2021 and the other on 9 December 2021. By a combination of those two interim orders, the living arrangements for G established by the June 2018 orders are presently suspended. G lives with the respondent and spends time with the applicant from 3:00pm Thursday to 3:00pm Friday in one week and from 3:00pm Thursday to 3:00pm Tuesday in the other. The practical effect of these orders is to reverse G’s living arrangements from an 8–6 arrangement (over a 14 day period, with most of the time in the applicant’s care) to a 6–8 arrangement (over a 14 day period, with most of the time in the respondent’s care).
THE ISSUES
The issues in this case concern risk for G. The evidence and submissions identify risks of two broad types. First, there is the risk of psychological or emotional harm for G by reason of being exposed to her parent’s conflict and how that conflict plays out between her parents. Second, and quite separately, there is the risk of physical, emotional or psychological harm to G in the applicant’s household from his and his current partner’s actions of physical discipline towards her. The evidence demonstrates that the first identified risk is real and the magnitude of harm to G, great. The second risk, whilst also real, is unlikely to ever be realised in the applicant’s household and even if it was, the magnitude of harm to G is small.
As to the risks presented by G’s parents’ conflict, as long ago as November 2021 a child court expert, Ms P, observed at paragraph 18 of her child impact report dated 29 November 2021:
18.The main risk of emotional and psychological harm to [G] lies in the intractable parental conflict. Both parents are highly mistrustful of the other and find it hard to let issues go for [G’s] benefit. [G] would benefit most in her development if the parents were able to reduce their suspicion of the other. While [G] appears to be a resilient child, if the parents cannot each reduce their mistrust of the other and reduce the allegations made about the other, this will not bode well for [G] as she develops. Living with this kind of conflict places a child emotionally and psychologically at risk (although it is considered that it is not intended by each parent), and in a tense situation which raises a child’s level of internal stress. Positively, while [G] knows that her parents do not talk and do not like each other, she appears to be somewhat protected from the negative feelings each parent has about the other, but this is likely to change as she matures and becomes more aware. This is likely to become a serious problem if either or both parents involve [G] inappropriately in the conflict or by demeaning the relationship [G] has with the other parent or by encouraging her alignment with one parent in any way against the other.
The evidence establishes, without room for doubt, that the risks identified by Ms P have been realised for G. It is uncontentious that G is affected by her parents’ conflict. Dr O observed that G was both aware of her parents’ conflict and was affected by it. At paragraph 511 of his report, he says:
511.[G] can see when they’re about to fight ... she can see their faces ... but, (constructed, dismissing tone) they can fight how much they like! [G] here takes a stance of disconnection from and disinterest in whether the parents fight. This is a protective and to some extent adaptive response when a child experiences ongoing parental conflict which it is beyond their control to fix. But, underneath, it is my impression that [G] is emotionally impacted by her experience of parental conflict. They had fought at the doctors, but [G] didn’t know why.
And, she is aware of each parent’s feelings when she is with the other parent. Dr O records at paragraph 539 of his report:
539.[G] draws a clear differential here: She does not perceive that Dad worries about (her) when she is in maternal care. He does actually worry, but has protected [G] from that knowledge. She sees Dad as strong, and does not worry about him when away from him. She has a strong awareness that Mummy worries about her in the care of Dad and [Ms Q]. She also worries about Mum, when away from Mum. She misses Mum, and perceives that Mum misses her.
The risk of psychological or emotional harm for G from her parent’s conflict is realised principally in the respondent’s actions towards G and the respondent’s reactions to things that happen when G is in the applicant’s household and care. I will elaborate on these matters later in these reasons when dealing with the purported “assaults” of G by the applicant and his partner.
THE PROPOSALS
At the commencement of the trial, the applicant proposed a complex order. At the conclusion of the trial, he pressed that order, with some minor amendments but no less complexity. Here, I will only deal with the more significant aspects of his proposal. Primarily, the applicant proposes:
(a)that he have sole parental responsibility for G;
(b)G live with him;
(c)for a period of 30 days from the date of the orders, G not spend any time nor communicate in any way with the respondent (and there be a complementary restraint upon the respondent);
(d)thereafter for a period of 60 days, G have video calls with the respondent on one occasion each fortnight for no more than 15 minutes in duration to be undertaken in the presence of G’s therapist or the paternal grandfather or any of the paternal aunts/uncles;
(e)thereafter for a period of 120 days, G spend time with the respondent for no more than two (2) hours duration supervised professionally as follows:
(i)in weeks 1, 3, 5, 7, 9, 11, 13, 15 and 17, on a Sunday; and
(ii)in weeks 2, 4, 6, 8, 10, 12, 14 and 16, on a Wednesday during non-school hours;
(f)thereafter for a period of 180 days and during school term only, G spend time with the mother for three (3) nights per fortnight as follows:
(i)in week 2 from after school Friday until before school Monday; and
(ii)in week 4 from after school Tuesday until before school Friday;
(g)thereafter G spend time with the respondent as follows:
(i)during each school term for three (3) nights per fortnight as follows:
a.   in week 2 from after school Friday until before school Monday; and
b.   in week 4 from after school Tuesday until before school Friday;
(ii)during each school holiday period at the conclusion of terms 1, 2 and 3, from 9.00am on the day six (6) nights before the first day of school for which G is required to attend until before school on the first day of school for which G is required to attend;
(iii)during each school holiday period at the conclusion of term 4 in even numbered years as follows:
a.   from 9.00am on 30 December until 9.00am on 5 January; and
b.   from 9.00am on 27 January until before school (or 9.00am on a non-school day) on 2 February;
(iv)during each school holiday period at the conclusion of term 4 in odd numbered years as follows:
a.   from 9.00am on 24 December until 9.00am on 30 December; and
b.   from 9.00am on 23 January until 9.00am on 29 January.
The minute of orders sought by him at the conclusion of the trial was marked as exhibit “D” for identification.
The applicant’s proposals are informed largely by the opinion of Dr O that are to the effect that in the respondent’s care, G faces enormous psychological and emotional risk which will likely take the form of losing her relationship with the applicant and the paternal household more generally “in a context which is likely to falsely and negatively distort her perception of the [applicant] and his household (and thus of herself and her own personal narrative) in the long term”. According to Dr O, the chances of this risk coming to fruition are high.
The thrust of the respondent’s orders promoted at the commencement of the trial is that:
(a)the parties have joint parental responsibility for G;
(b)G live with the applicant from the conclusion of school or 3.00pm Wednesday to the commencement of school or 9.00am Tuesday, each alternative week; and
(c)G live the balance of her time with the respondent.
In practical terms, that is a continuation of the current 6–8 arrangement, with more time being spent in the respondent’s household.
However, in submissions, the respondent changed her position and sought what seems to me to be a week about arrangement. The minute of orders sought by her at the conclusion of the trial is marked exhibit “C” for identification.
Initially, the respondent’s proposals reflected her view that the applicant and his current partner, Ms Q, presented an unacceptable risk of physical and emotional harm to G. That view was largely informed by what she says were two incidents that occurred in 2021 and 2022 where G was allegedly assaulted by the applicant on the first occasion and by Ms Q on the second. However, at the hearing before me she resiled from that position. She said that she had come to understand that G was not at risk of physical harm in the applicant’s care and that the arrangements now in place (by virtue of the presently operative interim orders) suit G’s needs. More than that, she now contends that given her fresh understanding of the dynamics between she and the applicant and informed by Dr O’s opinion, she is confident that she and the applicant will be able to co-parent G into the future. It is this new-found understanding and confidence that leads her to promote orders for equal time and joint parental responsibility for G.
G and I have the assistance of an independent children’s lawyer. At the commencement of the hearing, he promoted orders that would see the applicant have sole parental responsibility for G, for her to live with him and spend time with the respondent each alternate weekend from after school Friday to before school Monday in one week and from after school Thursday until before school Friday in the next. At the conclusion of the hearing, the independent children’s lawyer’s position changed in that he now seeks orders for G to live with the respondent each alternate week from the conclusion of school on Friday until the commencement of school on the following Wednesday – a total of five consecutive nights in one continuous block each fortnight – rather than the shorter periods of time each week he originally proposed.
Both parties and the independent children’s lawyer seek orders for G to spend her time equally between her parents over the school holidays. They seek orders for therapy for G.
G
G was born in 2016. She attends primary school, and at the time of the trial before me was in year two. According to the evidence, she enjoys school and judging by her report cards annexed to the respondent’s trial affidavit, she is an average student. She apparently engages well with her teachers and peers and is generally well liked.
G is engaged in extra-curricular activities and in particular, one extra-curricular activity that she undertakes when she is in the applicant’s care. She does well at this activity. She is also engaged in other extra-curricular activities that occur on a Monday afternoon. Sometimes she is in the applicant’s care and sometimes she is in the respondent’s care when she undertakes this activity, but I formed the impression that it was an activity that was mostly shared with the respondent. Indeed, the respondent told Dr O that she did not want the applicant to take G to this activity when she was with him “because she doesn’t want the father anywhere near the mother’s friends. He continuously badmouths the mother in the community”.
Between the parties’ separation in 2017 and the final parenting orders made in June 2018, G lived with the applicant and spent limited supervised time with the respondent. In June 2018 she commenced to live with each of her parents in accordance with the terms of the final orders made at that time.
However, notwithstanding those orders, from April 2021 to July 2021 G lived with the respondent and spent no time with the applicant. Since the interim orders made on 7 July 2021 G has lived in the 6–8 arrangement I have already described, spending the larger portion of that time in the respondent’s care.
Physically, G’s health is generally good. However, the applicant was moved to file an affidavit (of 47 pages in length, including annexures) cataloguing issues with her health that had arisen between the filing of his affidavit of evidence-in-chief in April 2024 and mid-June 2024. The respondent filed an answering affidavit. Despite all of this effort and cost, in cross-examination the applicant said that he did not consider that any of the matters raised in his latest affidavit were cause for concern.
Emotionally and psychologically, G is not doing so well. She has to struggle with her parents’ conflict and the effects of that upon her. According to a letter from the respondent’s solicitors dated 2 December 2021 G “had been” diagnosed with anxiety. They said (my emphasis):
It is reported that [G] is settled into this current routine, her diagnosed anxiety has declined to some degree although she is still exhibiting distress as to spending the 5 night block with her father.
The respondent seemed to take issue with this in her cross-examination, contending that G had not been so diagnosed, but Dr O records the respondent telling him that G had been diagnosed with depression and anxiety “at [the applicant’s] place” (Dr O’s report filed 26 April 2024, paragraph 104).
For a time (between March 2021 and June 2021) G consulted with Ms R, a clinical psychologist. Initially, the respondent’s evidence-in-chief about that was:
193.On Thursday […] March 2021 the Father had arranged an appointment with [G’s] GP [Dr S] to discuss issues he was experiencing with [G’s] behaviour, especially sleep, he was in attendance with [G] and I was on the phone.
194.[Dr S] told us “I believe that [G] is experiencing anxiety when at her father’s home, she may benefit from seeing a psychologist”. As it was his weekend, [G] remained in her Father’s care.
195.As a result of this, I took [G] to see [Ms R]. I depose to those events later in this affidavit.
However, at the commencement of her oral evidence, the respondent resiled from this evidence and said that she engaged Ms R on her own initiative following what was described in the evidence as the “smack incident” – more of that later. There was no explanation offered for this change of evidence.

I will consider the respondent’s evidence about the engagement of Ms R later in these reasons, but for present purposes it is sufficient to record that despite consulting with her, Ms R did not treat G. There are three letters in evidence from Ms R (see annexure I to the respondent’s affidavit filed on 26 June 2024). In none of them does Ms R set out any conclusions or describe any treatment she gave to G. However, in each she recommends the engagement of an “independent child psychologist or psychiatrist for assessment of [G] and her relationship with her Father” (in the first letter) and that an independent child psychiatrist or psychologist be engaged to assess G and her relationships with her parents (in the second and third letters).
The interim orders of 7 July 2021 recognise that G then required the assistance of a therapist to help her cope with her parents’ conflict. By those orders, the respondent was restrained from taking G to Ms R again. That seemed to come about because the respondent did not inform the applicant that she had taken G to see Ms R in the first place and she had forbidden Ms R from engaging with the applicant. By the interim orders, the parties were required to engage Ms T, a clinical psychologist, to consult with G and provide therapy to assist her to deal with what was then going on in her life. Organising this assistance for G has been problematical. The parties’ conflict has presented an obstacle to G receiving this therapy.
The respondent says that she engaged Ms T to have a meeting with both parties to assist them to resolve an ongoing issue with face-to-face changeovers “to help us and [G]” (respondent’s affidavit filed 29 April 2024, paragraph 244). But that was not the purpose for which Ms T was to be engaged under the orders. The orders made separate provision for the parties to engage with U Psychology for family therapy. The respondent’s actions immediately infected the process intended to occur between G and Ms T with the parental conflict.
Nonetheless, in September 2021 the applicant and the respondent had a joint session (conducted by telephone) with Ms T. The respondent complains that Ms T was concerned about the payment of her fees and raised that with the parties at the outset. According to the respondent’s own evidence, despite Ms T’s concern about her fees and despite the respondent not being able to meet them, she persisted with trying to have Ms T listen to her concerns.
It seems that Ms T did engage with the parties after a while but not in a way that validated the respondent’s concerns or position. The result was that the respondent was feeling “under duress and very emotional”. She says that “In order to get the interaction to stop, I said that I would relinquish care of [G]. I did not mean it when I said that. I felt I had to say what she wanted to hear to make her stop. I was under extreme emotional pressure and felt shocked by [Dr T’s] behaviour towards me” (respondent’s affidavit filed 29 April 2024, paragraph 258).
This is odd and frankly, disingenuous. If it truly was the case that the applicant was feeling the way she claims, she could have simply terminated the telephone call. It seems that she did not and she does not explain why she did not. It is likely that she now says that she felt pressured because Dr T did not accept what she had to say and challenged her. In response, and consistently with her personality as described by Dr O, the respondent behaved reactively and agreed for the applicant to collect G from preschool that day, having relinquished G’s care to him.
The respondent subsequently made a complaint to the Health Care Complaints Commission NSW about Ms T. Needless to say, there was no further engagement of Ms T, despite the order that was in place.
Perhaps unwisely, the applicant took the respondent at her word and retained G in his care. The respondent subsequently filed an application for a recovery order and on 10 September 2021 the parties agreed to resume the earlier orders. However, they did not agree upon a replacement therapist for G. Despite the clear terms of the orders made on 7 July 2021, G’s parents’ conflict again presented as an obstacle to that process for G and she has not received the therapy that the parties recognised that she needed so long ago and continues to need.
Having regard to the circumstances I have just recounted, I am satisfied and I find, that the responsibility for this failure falls primarily at the feet of the respondent.
The parties and G were interviewed by Dr O for the purposes of his assessment in October 2022. The applicant described G’s behaviour in his household to Dr O. Not much of this is sworn to in his evidence-in-chief before me, but nonetheless, it seems uncontroversial that in the applicant’s household G’s behaviour could sometimes be challenging. The applicant has sought out strategies to deal with the behaviour from his own therapist, Ms X and by implementing strategies learned by undertaking a 123 Magic parenting course.
Dr O’s evidence best sums up G’s position (errors in the original):
742. I do feel that [G] has special needs in the emotional, psychological, relational and developmental domains, arising from the emotional, psychological and relational impacts of the adversity that they have (sil. she has) faced during their lives (sil. her life) to date. This adversity has included exposure to the impacts of parental conflict and parental separation including a partisan shared narrative with the mother, and experience of maternal anxiety and personality dysfunction and unwitting emotional abuse in maternal care.
I accept Dr O’s opinion. I find that G has been affected in the ways identified by Dr O as a result of exposure to her parent’s conflict and the partisan shared narrative with the respondent and her experience of the respondent’s anxiety and personality dysfunction and unwitting emotional abuse in the respondent’s care.
An example of the day-to-day effect of the parental conflict upon G occurred at the time of Dr O’s interviews and is worth recounting. In October 2022, G had a competition for the extra-curricular activity she participates in. Both parents attended. Although G did not make the finals in the competition, her teacher gave her a medal. The applicant saw this from some distance away and when G came over to him, he asked her about it. Her response was “I didn’t get one.”
The interviews with Dr O were held the next day. She told Dr O that she did get a medal (as the parties agree) but G did not want to give the medal to the applicant and she had asked the respondent to put the medal away, in a bag, so the applicant could not see it.
Dr O records what G said about this when he initially asked her about it:
507.I asked about [G’s extra-curricular activity] .. . […] .. . [G] likes it. .. [G] had been to a […] competition the previous day. I asked if [G] had been given something. Yes ... a little thing ... that you stick on your dress , or your top . . . it was not so exciting. I asked, Did she also get a medal? No, [G] didn’t get one.
Later Dr O records the following exchange with G:
518.At [the competition] yesterday, [G] didn’t get into .. . ([G] looked anxious, she was stumbling over her words, rather disjointed, and looking at me nervously as she spoke) ... [G] was crying . . . she got a medal. . . the medal is at Mummy’s home . . .
519.I asked [G] (with gentle tone) whether it was hard to work out what to say.
520.[G] nodded, and a tear came to her eye.
521.[G] was tearful and distressed, about what was the right thing to say about the medal. She had carried anxiety about this issue, since our discussion earlier in the interview.
522.I told her that she was doing a good job.
523.I asked whether it is sometimes hard to work out what to say, with other people, also.
524.Yes . . . with Mum, with Dad, with the teacher . . . with [Ms Q], sometimes.
525.[G] went back to talking about the medal … she is waiting for Daddy to get the medal, but Daddy’s not going to get it … Daddy was picking [G] up from my office, and taking [G] to Mummy’s house, and Dad might go , Can I have the medal now?! My impression is that [G’s] actions on the day when she received the medal and earlier in the interview aimed to meet Mum’s needs. Now, she is scared that Dad may place a demand on her regarding the medal, and she will be stuck in a loyalty conflict.
526.I asked [G] whether she would like me to raise the issue of the medal, with Dad, when I saw her with Dad …
527.[G] told me, No, that might destroy her a little bit . . . she would be scared ... (a switch to a matter of fact tone) [G] then told me that she (her emphasis) wanted to say it when Daddy was with her. . . (release of tension in her body and facial expression, as she had worked out what to do) . . . he would be OK with that. [G] initially used the words “destroy” and “scared”, similar to the words used by the mother at interview and in her court documents about [G’s] experience in paternal care. She then switched to a more calm, ordinary and secure intention to speak with Dad.
Another, earlier, example of the quandary in which G finds herself from time-to-time is set out in the unchallenged evidence of the respondent’s present partner, Ms Q:
40.[In mid] July 2021, [Mr Purdue] informed me that [Ms Monroe] had accused [Mr Purdue] of taking [G] to the doctor without notifying [Ms Monroe].
41.[Two days later in] July 2021, I said to [G]: “Why did you tell Mummy you went to the doctors when we didn’t take you?” G said to me: “I lied because I was trying to save you and Daddy. I didn’t want Mummy to get mad.” I said to [G]: “What do you mean?” [G] said to me: “I told a lie to Mummy so she wouldn’t get mad at you and Daddy.” I said to [G]: “So Mummy noticed you were sick, and she got angry that Dad didn’t take you to the doctor. Then you told Mummy you went to the doctor so she wouldn’t get mad.” [G] said to me: “Yeah , that’s what I said. I wanted to save you guys.” I said to [G]: “Well Mummy got angry at Daddy anyways. I don’t know why. Hopefully she will stop soon .” [G] said to me: “She will stop one day, when she is ready.” I said to [G]: “It is important to tell the truth all the time.” [G] looked concerned. I said to [G]: “Don’t worry, you are not in trouble. You should not need to worry about saving us.”
I am satisfied by the evidence and I find that G is well aware of the conflict that rages between her parents. I am satisfied that it affects her in overt ways as described in the evidence of Dr O. Its effects are also much more subtle and less obvious than some of the starker examples I have recited above.
These findings will be of no surprise to the parties because they recognised long ago that G needed help to deal with the emotional and psychological difficulties they have created for her through their unrelenting conflict. However, despite this, it is clear on the evidence and I find, that G has an unfulfilled need for counselling or therapy designed to assist her with the insidious effects of her parent’s conflict. She has been denied that initially by the respondent’s conduct, but the parties together have since been equally impotent and unable to see to G’s needs being met because of their conflict and inability to communicate effectively.
The applicant
The applicant is 37 years old.
He has repartnered and lives with his fiancée Ms Q, presently 37 years of age. The applicant and Ms Q have one child together, V, who is now two years of age. Ms Q has one child from a previous relationship, W, who is presently eight years of age. W lives with the applicant and Ms Q, but spends alternate weekends and half of his school holidays with his father.
The applicant is employed in management for a company. He works shift work, 14 days out of every 28 days, working seven day shifts and seven night shifts per month broken up into a roughly 4 days on, 4 days off arrangement. This is consistent with the work he has undertaken throughout G’s life.
Physically, the applicant is in good health.
Order 7 of the interim orders made on 7 July 2021 required the parties to engage in family therapy. The nominated practice was U Psychology. The applicant has previously consulted with Ms X in early 2021 about sleeping and bed-time difficulties he was experiencing with G. In accordance with the July 2021 interim order, the parties engaged with another practitioner at this practice, Dr Y, to provide the therapy. The applicant engaged with Dr Y on eight occasions between October 2021 and May 2022. The respondent engaged only once in September 2021. The applicant continued because he says that he found it useful, even though the respondent did not.
However, he could not continue with Dr Y as she moved overseas. Instead, the applicant continued his therapy with Ms X. He has seen Ms X regularly since June 2022 and has attended upon her at approximately eight-weekly intervals.
The applicant deposes that he has found that Ms X has been able to assist him with strategies to parent G, help with her behaviour and to assist G in regulating her emotions. The applicant also receives advice from Ms X about the issues he experiences with the respondent. He takes advice about ways to communicate and coparent with the respondent. Despite there being no sworn testimony from Ms X that corroborates this evidence, I accept his evidence about these matters.
Otherwise, there is no evidence to suggest that the applicant is not in good psychological health.
Dr O assessed the applicant’s mental health. He thought that the applicant did not have a current or ongoing mental disorder or substance misuse disorder. He thought that overall, the applicant has “reasonable, and probably quite strong, personality functioning, meaning that his patterns of thought, emotion, behaviour, relationship and impulse control have been reasonably adaptive and constructive, in most domains of life, over time” (Dr O’s report filed 26 April 2024, paragraph 738).
Despite his protestations to the contrary, I am satisfied that the applicant is a willing participant in the conflict with the respondent, although his role is more confined to being reactive to the provocations of the respondent. I accept the submissions of senior counsel for the respondent that the applicant looks to blame the respondent for much of the conflict and the failings in their co-parenting relationship without genuinely reflecting upon his own role in it.
One example will suffice. Ms R records that G told her that on a particular occasion instead of giving her a puffer for her asthma, the applicant rubbed Vicks on her chest. When asked about this in cross-examination, the applicant said that at the time he used the Vicks on G’s chest, he did not know that G was to use a Ventolin puffer because the respondent had not told him about it. That is to say, he blamed her for his failing. However, whilst the respondent had indeed failed in her duty to tell the applicant about the trial use of a Ventolin puffer that had been prescribed by Dr S for G in April 2021 (again, because of the parental conflict), I am satisfied that the applicant had been informed about it by Dr S the following day. Blaming the respondent for his failing was both disingenuous and an example of the continuing conflict between the parties.
The respondent
The respondent is presently 43 years of age. She is generally of good health although suffers from migraines periodically.
She has a business and has also performed contract work. Her evidence about her working arrangements is not clear. In her affidavit of evidence-in-chief she swore that she works Monday to Thursday each week in one of her roles and from home on Tuesday and Wednesday. She also teaches classes on Fridays. She told her current psychologist that she resigned from her current employment at the end of February 2024 as she wanted to focus on preparation for the “custody proceedings” and spend time with G as well as look after her own well-being. She said that she plans to look for another contract role after the court proceedings are completed.
Presently, she lives in a house that she rents from her father, Mr Monroe. Her father lives in a flat on the premises. Mr Monroe assists with G’s care. He cares for her before and after school and picks her up after school.
The respondent has a history of struggles with her mental health. Despite that, her evidence-in-chief about her mental health history is less than fulsome and I have had to piece it together from various sources, many of which came as documents tendered during her cross-examination. I formed the view from the respondent’s evidence-in-chief and cross-examination that she really wished to downplay her past mental health issues.
It is uncontroversial that in 2009 the respondent was diagnosed by her then treating psychiatrist, Dr B, with a mental health condition. Additionally, she was treated with medication for depression and anxiety. It seems that she continued to be treated by Dr B until 2019 although whether her treatment with him was continuous throughout that period is not at all clear. In her interviews with Dr O, she told him that she was still taking her medication for depression.
The respondent asserts that in late 2016 she spent time in hospital although she does not say why. At the time, she needed to have surgery but she was unable to undertake it. It is unclear whether her time in hospital was related to that or something else. In any event, she says that she was taking medication to help her sleep which she thought exacerbated her depressive symptoms and anxiety. She says that during that hospitalisation she was diagnosed with depression and anxiety.
It was soon after this, in November 2016, that she separated from the applicant. The respondent says that by early 2017 “the situation had become untenable” and she felt increased pressure from the applicant and his family, although about what, she does not expressly say. She says that she had “grown to believe that the father was going to seek full custody of [G] and would be successful and that [Ms Purdue] would raise her” (the reference to “Ms Purdue” is a reference to the applicant’s mother). However, the respondent gives no evidence about the nature of the pressure that she felt from the father or his family or why it was that she grew to believe that the father was going to seek “full custody” of G.
The respondent says that on 23 January 2017, “the father and his family had been saying to me “[Ms Purdue] will retire to raise [G]” (respondent’s affidavit filed 26 April 2024, paragraph 140). She does not say who said these things to her, in what context and without any particularity. Weighed down by this, she says that after contacting her father and ensuring that he was not too far away, she attempted to self-harm. Only she and G were present when she did this.
I have no medical evidence about any of this apart from the respondent’s evidence to the effect that after this attempt at self-harm she “re-engaged [Dr B]” and sought assistance from a “[Ms K] (psychologist) in or about 2018 as well as [Ms AA] (psychologist)”. She does not explain the delay between her attempt at self-harm in early 2017 and seeking assistance from Ms K “in or about 2018”. I have no sworn testimony from Ms K. The evidence shows that she engaged with Ms AA between February 2018 and February 2019.
The respondent asserts that in 2018, at her request, she underwent “retesting” for her mental health condition and Dr B said to her that her “[mental health condition] is in remission. It might be that it was an improper diagnosis in 2010”. Further, the respondent asserts in her evidence-in-chief that she “understands” from Ms AA, a clinical psychologist from whom she has been receiving treatment and a psychiatrist, Dr CC, that she consulted at the commencement of 2024, that the symptoms of “[her previously diagnosed mental health condition] can be confused with the symptoms of significant trauma”. The respondent contends that “any previous diagnosis of [a mental health condition] was in error” (respondent’s affidavit filed 26 April 2024, paragraphs 149-151).

The difficulty with this assertion, however, is that it is not borne out by the evidence. She called no evidence from Dr B and although she called evidence from Ms AA and Dr CC, neither gave unqualified evidence that was consistent with her assertion.
Consistently with her diagnosis of a mental health condition, the respondent says that in January 2018 she was accepted into a program known as dialectic behavioural therapy. The respondent says that she successfully completed this program “within the published time and in about April 2018”. According to what she told Dr O she also engaged with Ms AA as an adjunct to this therapy.
In cross-examination, counsel for the applicant suggested to the respondent that she had not complied with order 21 of the June 2018 orders. That order provided:
That the Mother’s time with [G] is conditional upon her remaining engaged with her mental health treatment providers per their recommendations, being her treating Psychiatrist, her treating Psychologist and General Practitioner (her treating practitioners) and complying with their recommended treatment plan for so long as her treating practitioners recommend same.
It was suggested that the respondent had not met this order because she had disengaged with Dr B and the psychologist she was consulting at the time the orders were made. I do not accept this argument. The applicant’s evidence (applicant’s affidavit filed 26 April 2024, annexure 11, p. 92) shows that at his last review of the respondent in September 2019, Dr B’s plan was to see the respondent on an ‘as needs’ basis. That is to say, she would return to see Dr B should she (or perhaps her general practitioner) think that she needed to return. Subsequently, when the respondent felt that need, she sought to re-engage with Dr B but he was unable to take her on as a patient again. Consequently, she engaged with Dr CC psychiatrist.
I have a report by Dr CC, attached to an affidavit filed on 29 April 2024. The respondent commenced consulting Dr CC in February 2024. She met with Dr CC on four occasions in total in 2024. She told Dr CC that she completed a therapy program although Dr B thought that it must have been an introductory program because “full DBT programs usually run over a 12–24 month period”.
Dr CC thought that the applicant had an adjustment disorder with mixed anxiety and depressed mood. He thought that the history that he obtained from the respondent recognised vulnerabilities, but those vulnerabilities fell short of reaching the threshold for a diagnosis of the previously diagnosed mental health condition, either now or historically. Significantly though, Dr CC said “the medicolegal factors already alluded to may well have influenced the validity of the history obtained and hence this opinion though”. Dr CC recorded that otherwise the respondent had a historical diagnosis of a major depressive episode that was in remission and a very old diagnosis of an eating disorder (in full remission). Dr CC recommended that the respondent attend regular sessions with her psychologist.
The respondent relied upon evidence from her treating clinical psychologist, Ms AA. The respondent commenced consulting Ms AA in 2018. Ms AA records that she had four sessions with the respondent alone in February, March and April 2018; five sessions with the respondent and G across February, April and May 2018 and one further individual session in May 2018. More recently, she has attended five sessions in January 2024, four in February, one in March and two in April 2024.
According to what she told Ms AA, the respondent had been experiencing ongoing anxiety, stress and sleep disturbance and had been consulting her general practitioner about these issues. She received prescriptions for Valium to assist her with her sleep. She told Ms AA that she did not access any psychological support because she feared that the applicant would find out and use it against her.
After recording what the respondent had told her during their sessions and her own observations of the applicant, Ms AA says (errors in the original):
61.I also think it is important to point out that [Ms Monroe] is experiencing chronic impact of longstanding parental conflict between herself and [Mr Purdue] and ongoing custody battle. In the same light, I believe it is the similar for [Mr Purdue]. I believe [Ms Monroe] is utilizing strategies she has learnt (and she perceived they are effective) to cope with this ongoing challenging situation (although some of them may not be effective in reality).
62.In my opinion, [Ms Monroe] is likely to need longer term psychological therapy to address the following:
a. The impact of past trauma on [Ms Monroe] and her role as a parent;
b.[Ms Monroe’s] preoccupation with perceived persecution from [Mr Purdue] which maintains [Ms Monroe’s] hypervigilance and its impact on her parenting;
c.[Ms Monroe’s] awareness in moments of emotion dysregulation and the impact of her parenting and her relationship with [G];
d.[Ms Monroe] to learn how to manage emotion dysregulation and protect [G] from this;
e.[Ms Monroe] to learn how to protect [G] from the ongoing conflict between [Ms Monroe] and [Mr Purdue].
Dr O conducted an interview with the respondent in October 2022 and a follow-up interview in June 2023. He observed that during the interview:
29.The mother often confidently made assertions regarding past or recent events, which when I then challenged her with details or alternative narratives, she would to some extent qualify or step back from. One area where this would occur was that the mother would confidently enlist another person or authority (for example [Dr S] the general practitioner) as having held a certain view or given certain advice in line with her own view, but then when challenged would step back from that assertion.
The record of Dr O’s interviews with the respondent bears out his observation. There are many instances of the respondent making positive assertions about a range of matters, only to withdraw from them to various degrees when challenged by Dr O. Further, many of her assertions were not consistent with information received from others such as her general practitioner.
She demonstrated the same qualities in her evidence before me. But one example is her Facebook post in May 2021 in which she said that there was a restraining order against her “ex-mother-in-law” and that “she is not allowed near me”. In cross-examination she accepted that there was no such order. At best there was an order that the applicant’s mother should remain in the car at changeovers of G and only assist her husband with the changeover if it was necessary.
Concerningly, the respondent seemed quite willing to make a range of pejorative assertions to Dr O about the applicant’s conduct during and after their relationship, none of which are sworn to by the respondent or otherwise supported by the evidence.
Dr O assessed the respondent’s mental health. He said:
726.The mother’s presentation is consistent with the previously applied DSM-5-TR [The Diagnostic and Statistical Manual of the American Psychiatric Association, 5th Edition, Text Revision (2022) utilised by Australian psychiatrists as a standardised tool for categorising mental disorders] diagnosis of [a mental health condition]. Such disorders tend to be persisting over time. I have described above how maternal personality dysfunction has been evident in the [G]/mother relationship and in maternal parenting and coparenting, and below how her personality dysfunction has been evident with regard to her experience of the father and her relating to the father.
In cross-examination, Dr O was asked if his diagnosis of a mental health condition was sound. The effect of his oral evidence was that although the diagnosis might not presently hold for the respondent, he was of the clear view that the respondent exhibited significant traits of this condition. He explained that it can make sense for a person to cross the line to mental illness at one time in their life and to no longer cross the line to mental illness at another. It would depend upon where on a continuum the traits exhibited by the person fell at any given point in time. Nonetheless, he considered that the respondent’s presentation was consistent with a diagnosis of a mental health condition.
Dr O also said (my emphasis):
730.I agree with the appraisal of psychiatrist [Dr B] in 2018/2019 that the mother’s past depressive symptoms are now in remission, but that she continues to experience significant anxiety. [Dr B] in 2018 described this as an adjustment disorder with anxious mood in the context of then having only limited time spent with [G]. In my view, this diagnosis has persisted over the years since that time, because restoration of substantial child/ mother time did not resolve the mother’s adjustment difficulties. In my view, the mother, even after restoration of time, has demonstrated incapacity to adjust to being required to coparent with the father and this has become a chronic stressor for her, driving ongoing anxiety.
Dr O considered that the respondent should consult with a psychologist, psychiatrist or clinical social worker with skills in assisting adults with personality and mental health problems. He thought that the respondent should see such a therapist on at least three occasions, then continue with therapy at a frequency and duration as recommended by that therapist. He considered that the respondent should continue to consult with her general practitioner Dr M each month to three months, as recommended by Dr M, and to consult with her psychiatrist Dr B at least each six months until G reaches the age of 13.
Before leaving my discussion of the respondent, it is necessary to reflect a little on her credit. As Dr O observed, the respondent was given to exaggeration and hyperbole. It is also clear that portions of her affidavit evidence were inaccurate. She corrected them when she commenced her evidence but no explanation for the inaccuracies was advanced. More than that, parts of her evidence, when compared to the evidence of other, non-partisan witnesses, were shown to be false.
Her evidence about Ms R provides an example. Although she corrected it in her evidence-in-chief, what she originally swore in her affidavit of evidence-in-chief was (set out again for convenience):
193.On Thursday […] March 2021 the Father had arranged an appointment with [G’s] GP [Dr S] to discuss issues he was experiencing with [G’s] behaviour, especially sleep, he was in attendance with [G] and I was on the phone. …
194.[Dr S] told us “I believe that [G] is experiencing anxiety when at her father’s home, she may benefit from seeing a psychologist”. As it was his weekend, [G] remained in her Father’s care.
195.As a result of this, I took [G] to see [Ms R]. I depose to those events later in this affidavit.
She corrected this in her evidence-in-chief by saying that the reason she took G to see Ms R was to deal with the applicant’s assault upon G. However, as to the purpose of the consultations with Ms R, Dr O records (my emphasis):
132. I asked about the psychologist [Ms R].
133. She had been really useful … she gave [G] a safe space to speak to her.
134.At that time, the father was accusing the mother of making it all up, or … of assaulting [G]… the mother can’t remember who had said ... that the father had said to the police ... that the mother hit [G] as well … the mother had encouraged [Ms R] to drill down on that because the mother had never hit [G].
135.I sought to clarify with the mother ... had she asked [Ms R] to drill down on this issue, of whether the mother had hit [G]. Yes ... the father was trying to make it all about the mother …the mother wanted it to come from [G].
The respondent gave no evidence of this reason for taking G to see Ms R when she corrected her affidavit evidence.
Moreover, on her own account, the respondent is manipulative. The respondent obtained a referral for G to see Ms R from Dr S, G’s general practitioner. Both the applicant and the respondent had consulted Dr S in early March 2021 and at that appointment he had given them a referral for G to see Ms X for the purposes of some therapy for G. However, without informing the applicant and with the intention of keeping it secret from him, the respondent returned to Dr S four days later in March 2021 and obtained a referral from him for G to see Ms R.
The respondent did not tell the applicant that she was taking G to see Ms R. The applicant found out when he sought and obtained the notes of G’s general practitioner Dr S in relation to two consultations, one in early March 2021 and the other in late March 2021. The notes revealed a plan to take G to see Ms R. The notes also revealed that it was Dr S’s opinion that it was important for the applicant to be involved with G’s engagement with Ms R, although the notes also record that the respondent told Dr S that she was not planning on telling the applicant about at least the first visit with Ms R – “she will tell him later.” The notes also record that she would be “guided by the psychologist” about whether to involve the applicant in the engagement with Ms R at all. Despite her evidence about that, I am satisfied that she never intended to tell the applicant about the engagement of Ms R until it well suited her purposes to do so.
Further, she swears in her affidavit of evidence in chief:
236.By the time [G] first saw [Ms R], the Father’s assault on [G] had occurred.
237.[In late] March 2021, I sought [Ms R’s] professional guidance in relation to the involvement of the Father in [G’s] treatment with her. By this point, the Father had sent multiple emails to both [Ms R] and myself requesting to attend.
238.[Ms R] expressly stated to me that based on what [G] had told her, she did not want the Father involved in [G’s] treatment.
239.[In early] May 2021 [Ms R] provided a letter addressed “to whom it may concern”.
When asked to explain her actions, the respondent’s evidence in cross-examination (Consolidated Transcript p 320 lines 25 – 47) (my emphasis) was:
So why not take [G] to see [Ms X]?--- I, and it’s a struggle I have sometimes between acting in the best interest of my child and complying with court orders, and I know that that’s probably not the right position, but I felt, given that [G] was not wanting to go to her father, that perhaps it would have someone better – for someone independent to speak to that the father and I weren’t involved in. And with [Ms R], I asked [Ms R] not to have me in those appointments, because I thought it would assist [G] in working through what had happened.
Do you think looking back on it now that it was appropriate taking [G] to see [Ms R]?---Yes.
Why do you say that?---Because my intention was to try and help [G] work through what had happened so that she could continue to have a positive relationship with her father.
But given that the issues were with her father, wasn’t it important for her father to be involved?---I felt rightly or wrongly that given it was related to something that he did that he probably wasn’t very proud of, and he regretted, that he might minimise some of that, and that that perhaps wouldn’t give [G] the full voice, and that, look, that might be right or wrong, but that was how I felt at the time.
Wouldn’t it have helped the father to address, to come up with strategies to stop that situation from happening again?---Yes.
This evidence is concerning on a number of levels. For example, it demonstrates that the respondent was willing to put her own ideas ahead of the advice received from Dr S as to the exclusion of G’s other parent. Despite wanting to put in place something that was “independent” she set up situation where the psychologist only had one side of the equation. As the response to the applicant’s email to Ms R’s clinic makes clear, the respondent ensured that very little was discussed with or disclosed to the applicant. When Ms R provided information to the applicant, it was redacted at the direction of the respondent.
I am satisfied that the respondent has been diagnosed with a mental health condition. I am not satisfied that the diagnosis was erroneous as she now contends. I accept Dr O’s opinion that whilst the diagnosis might not be current the respondent nonetheless demonstrates traits of this condition. The diagnosis or label is not particularly important; it is the behaviour that is important. The disorder or traits according to Dr O have remained largely untreated because they are likely only improved by some form of therapy.
I am also satisfied that the respondent has engaged with her mental health treatment providers as was contemplated by the 2018 orders and has followed their advice as to treatment and medication from time to time. The most recent engagement by her with Dr CC and Ms AA demonstrates that she has the capacity and willingness to engage with health care providers when necessary. I do not accept the submissions that the respondent’s most recent engagement with Dr CC and Ms AA was an artifice for the purposes of the trial. Rather, I consider they were genuine engagements resulting from the stress experienced by the respondent in the lead into the trial of these proceedings.
ALLEGATIONS OF VIOLENCE
By the applicant towards the respondent
The respondent’s affidavit of evidence-in-chief contains many allegations of poor behaviour, said to be abusive, on the part of the applicant. However, I do not find the respondent’s evidence about the applicant’s allegedly abusive behaviour probative.
She describes the applicant’s behaviour as “manipulative” and “escalating” (respondent’s affidavit filed 26 April 2024, paragraph 18) and later says that the “conflict between me and the Father (and his family) seemed to escalate” (respondent’s affidavit filed 26 April 2024, paragraph 26). However, she does not give evidence of the behaviour that she characterises in that way.
She asserts that in late 2016 (respondent’s affidavit filed 26 April 2024, paragraph 21) the applicant said to her “you are sick, you are fucked up and need to go away, [G] and I are better without you”. She apparently said in reply, “Please stop”. However, there is no context given to these words or the conversation around them. Having regard to my observations of the respondent under cross-examination, it seems very unlikely that the only words said by the respondent were “Please stop”. Bereft of context this evidence is meaningless.
She asserts (respondent’s affidavit filed 26 April 2024, paragraph 27) that “the Father and his family repeatedly threatened to take [G] away from me and would tell me that I would not see her again. The Father was living [in my vicinity] and he would say this to me as I was getting into my car over the fence”. The words that the “Father and his family” used are not sworn to so as to determine if the respondent’s interpretation of them is accurate or rather is a misrepresentation of those words in the context of these proceedings. She does not identify who said the words (beyond what I have already identified) making it impossible for the applicant to answer the allegations in any meaningful way.
In paragraph 30 of her affidavit of evidence-in-chief the respondent asserts that between November 2016 and January 2017 “the Father or his family called the police on me [a number of] times”. She asserts that “None of these events resulted in any further police interaction” and then contradicts that statement by saying that the police attended at her residence and she found that “a very stressful experience.” Bereft of any further detail, this evidence is of no value.
I accept that the applicant withheld G from the respondent from January 2017 until March 2017. I am satisfied that the applicant’s actions were reasonable given the respondent’s attempt at self-harm. G commenced spending time with the respondent when supervised time could be put in place to safeguard her welfare.

At paragraph 33 of her affidavit of evidence-in-chief the respondent swears that on her birthday, on an occasion when the applicant refused to hand G back after an agreed overnight visit at his residence in the vicinity, he came to her father’s home and, while holding G, “threatened my father yelling you are a fucking idiot and so is your daughter”. She does not say what the threat was that the applicant is alleged to have made. I have set out the only specific evidence the respondent gives about this. What was uttered was a statement of opinion, not a threat. The respondent says that “The way he was standing with [G] and the way he was speaking to me made me feel very intimidated”. She does not describe the behaviour in any greater detail so as to permit some assessment of the reasonableness of the respondent’s feelings.
Her evidence at paragraphs 37, 39, 40 and 70 of her affidavit of evidence-in-chief contain a little more specificity but still lacks any significant probative value because the conversations are not set out, but rather evidence is given of specific phrases and words used by the offending parties, bereft of context. The respondent gives no evidence of her words or the entire conversations. In paragraph 94 she swears that “For a long time, the Father’s communication with me (particularly verbal communication) was acrimonious and disrespectful of me”, but no examples are given. There are a series of messages sent between the parties using an application called “Our Family Wizzard”. The messages concern an appointment for G. They are unremarkable in their content and tone. In fact, they demonstrate that the parties were able to be civil to each other and work out arrangements for G’s benefit.
At paragraph 158 of her affidavit of evidence-in-chief the respondent says that in 2018, after the initial set of consent orders were made, “the Father and I still had to conduct numerous face-to-face changeovers”. In this context, the respondent says that “the Father would often engage me in conflict for up to an hour thereafter. Often times the Father’s family members would also attend”. No particulars are given.
In paragraphs 186 and 187 of her affidavit of evidence-in-chief the respondent sets out that in 2018 to 2022:
186.…changeovers with the Father and his family were very difficult for [G]. [G] would be very distressed to changeover to her Father, and he (or his family) would often resort to taking her from me by force, pulling [G] strongly from my body, dragging her across the car and restraining [G]. [G] would be clinging to me and would be crying and distraught.
In paragraph 187 she swears that:
187.Multiple members of the Father’s family would attend changeover which made the situation more fraught and conflictual. The Father and his family members would at times leer or get up into my face. Verbal threats like “we’ll take [G] off you forever” and “you are crazy …delusional and you know nothing”.
Again, the lack of proper particularisation of these assertions make them impossible to answer meaningfully and dilute significantly any probative value that they might otherwise have had.
The respondent alleges that in January 2022 the applicant assaulted her at a changeover. On that day she says that G would not leave her. She was screaming and holding onto the respondent. This went on for about 10 minutes. The respondent asked the applicant to help her. She says that “without warning he forcefully grabbed [G] by her arms. She was still holding onto me on my arm. This twisted my wrist” (respondent’s affidavit filed 26 April 2024, paragraph 122). She says that she sought medical treatment that night but there is no medical evidence before me about that. The respondent says that she was told by her general practitioner and the Department of Communities and Justice (although she does not say who) to report the incident to the police. She did so.
Of this incident, the applicant says:
275.[In January] 2022, I attend [a supermarket] to collect [G] from [Ms Monroe]. When I arrived, [G] was crying and said that she wanted to stay one more night with [Ms Monroe]. [G] was holding [Ms Monroe’s] hand throughout this changeover. I tried asking [G] why she did not want to come with me, but she did not answer coherently. I encouraged [G] to come by telling her we were going to have fun and a special dinner and swim in the pool. I asked [G] to come into the shop and help me buy some things. I asked [G] several times to tell me why she did not want to come but she refused to say. After about 15 minutes, [G] was still upset and [Ms Monroe] said she was going while [G] was holding her. I told [Ms Monroe] I was going to pick [G] up. [Ms Monroe] continued to hold [G’s] hand. I picked up [G] and as I started to walk off, [Ms Monroe] said that [G] had a hold of her still, I gently held [G’s] wrist and pulled [G’s] hand off [Ms Monroe’s] hand and walked off with [G] in my arms. [G] was still upset when we got to the car. I calmed [G] down by doing some drawing with her in a notebook. [G] calmed down within 10 minutes and was happy for the rest of the evening. [G] was happy to see [Ms Q] and [W] when we got home.
276.[Five days later], the Police arrived at my house and informed me that [Ms Monroe] made a complaint that I assaulted her. [Ms Monroe] alleged that I twisted her wrist, and she walked away in pain. I told the Police my version of the incident as set out above. The Police then informed me that they had already obtained the video footage of (sic) from [the supermarket] which matched my version of the incident. They confirmed that the video footage does not show me twisting [Ms Monroe’s] wrist and her walking away in pain as alleged by her. The Police confirmed that they will not take any further action. The Police also spoke to [Ms Q].
I prefer the evidence of the applicant over that of the respondent about this incident and about her allegations of assault more generally. I find that the applicant did not assault the respondent on many occasions as she has alleged and as she swears in these proceedings. As to this particular incident, her evidence about this episode is consistent with Dr O’s observations, and my own, of the respondent’s tendency to exaggerate and colour her recitation of events for her own ends.
By the applicant or Ms Q towards G
The respondent records in her written evidence that in March 2021 she collected G from her paternal grandparent’s home. After they got home, G showed the applicant a mark on her “bottom/thigh” and said “Daddy did this to me whilst I was naked in bed and crying” (respondent’s affidavit filed 26 April 2024, paragraph 96).
The respondent says that she saw what looked like a handprint. Instead of contacting the applicant to ask about it or to obtain information that might have assisted, she says that she contacted the non-emergency police assistance line “to seek advice”. She does not explain what advice she was hoping to receive. Rather, she got the response I am satisfied that she was hoping for, namely that police were immediately dispatched to her home. The police arrived a short while later. The respondent says that G showed them the mark and told them “Daddy held me down naked on my bed and smacked me”. The respondent originally swore that G said that to the police in her presence, but at the commencement of her cross-examination she said that this was wrong and that she was not present when G had said this, but rather this is what the police told her. Subsequently, G attended with the respondent at a police station to undergo a specialised video recorded interview with trained officers.
In his affidavit of evidence-in-chief, the applicant sets out what occurred in March 2021. He smacked G once on her bottom using an open hand. He sets out in detail the circumstances of that event and accepts that he was angry and frustrated with G.
The applicant was arrested two days later for assaulting G. He was taken to the police station and interviewed. The police later interviewed Ms Q. However, the police concluded that there was no criminal assault and that the applicant’s actions amounted to lawful chastisement by a parent of a child.
This is, in essence, the evidence relied upon by the respondent to initially contend that the applicant presented a risk of physical harm, and consequential emotional harm, to G.
When interviewed by Ms P for the child impact report, the applicant “expressed great regret about this incident and stated that he does not use physical punishment and now uses 1 2, 3 Magic to assist”.
Shortly prior to this incident, the applicant had consulted with Dr S to seek a referral for therapy to assist him to deal with G’s behaviours, particularly around bedtime. In this context then, Dr O says this of the “smack incident”:
693.But, it was only a short while after the father sought this referral for therapy, that he proceeded in […]March 2021 to smack [G]. This was a significant incident of physical harm to a young child (aged 5 years at the time), which did leave a bruise. The father admits to smacking in frustration on this occasion. [G’s] account to the mother was accurate, in that the father had held her down, and smacked her, when she was naked, after a shower. The preceding two hours had involved an escalation of the father seeking to manage the situation with engaging strategies such as reading but also with threatened consequences such as threatening to take toys away. For [G], the father shifting around between these strategies as he became increasingly frustrated would have been distressing and would have amplified not settled her reactive state.
…
695.Smacking is not necessarily harmful when the smack or threat of a smack is not the primary disciplinary method, when the broader care environment is positive and secure, and when there is not broader physical violence. My impression is that this has been the situation in the paternal home.
696.But, smacking is harmful where the child experiences the smacking as unloving or as potentially dangerous, and/or where a child has or is at risk of developing broader emotional or behavioural problems. Both of these circumstances are true for [G]. Because [G] is carrying the mother/[G] shared negative narrative, which incorporates a narrative of the father as abusive and dangerous, paternal smacking will trigger thoughts of being unloved and of fear in [G]. Also, [G] is developing behavioural and emotional problems. In this context, it is important that the father (and [Ms Q] and the mother) cease using any physical discipline such as smacking.
…
698.So, I think it likely that there have been situations where the father and/or [Ms Q] have behaved in a verbally or even physically aggressive way when dealing with an emotional/behavioural reaction in [G]. But, I feel that these situations are being and can be dealt with in therapy. They are not at a level where they counteract an overall positive experience in paternal care, and should not trigger reduction in child/father time or removal from paternal care. I note that the parent whom [G] identified when discussing a drawn angry face was the mother, and I think it possible if not likely that there have also been such situations in maternal care.
As the respondent came to concede, this evidence did not establish that the magnitude of the risk of physical harm to G from the applicant was such that she needed protection from him. I accept that on the occasion in question the applicant was frustrated with G’s behaviour, his response was a one-off occurrence that he truly regrets and has taken effective steps to address.
The respondent swears that changeovers had been difficult at this time and they became even more difficult after March 2021. She says that G would refuse to go with the applicant despite her best encouragement and the assistance of an “external supervisor company”. Indeed, the respondent told the author of the child impact report that the respondent was violent towards G at changeovers, “ripping her violently” from her. Time between G and the applicant ceased in April 2021. However, I do not accept the respondent’s characterisation of this incident.
The second incident of physical violence against G in the applicant’s household identified by the respondent is alleged to have occurred in May 2022. The respondent says that G came back into her care after spending time with the applicant. She says that G said “Mummy [Ms Q] hit me and dragged me”. She says that G complained of a sore shoulder. Seemingly on the strength of those words, she took G to her doctor to seek medical advice “for what [G] had told me had occurred”. It is notable that she went to the doctor for that purpose and not to seek advice as to G’s sore shoulder. She says that the doctor and “the Department of Communities and Justice” told her to report it to the police. She did so.
Of this incident, Ms Q says:
51.[In late] April 2022, [G] had a difficulty that morning controlling her emotions. Little things, such as not liking the clothes that she chose to wear, frustrated [G] and then she screamed and cried. At about 12.30pm, [G] was screaming and crying, and [Mr Purdue] was asking her what was wrong. [G] was unable to express or say what was wrong and what was causing her to feel upset. [Mr Purdue] was feeling frustrated and went to our bedroom for a brief time out from the situation. [G] followed [Mr Purdue] upstairs but went into her own room and closed the door. I could hear [G] was still very upset and so I went to see if I could calm her down. I was […] pregnant with [V] and it took me a few minutes to get to [G’s] room. I went into [G’s] room, and she was crying near the bookshelf. I sat down next to [G] and gave her a ‘bear’ hug. This usually calms her down and had been a strategy we had used previously. [G] wriggled out of my arms. She began to cry less and calmed down a little. I said to [G]: “Why don’t you come downstairs with me, and we can have some lunch?” [G] agreed and she held my hand as we walked down the stairs. [G] sat on the lounge in the loungeroom, and I went to make [G’s] lunch in the kitchen. [G] saw [W] at the table eating his lunch and this agitated her as she started screaming saying: “[W] has almost finished his lunch that’s not fair.” [W] started to become upset. I raised my voice at [G] and said: “[G], you are not to act like this. You are upsetting [W].” [G] ran into the bathroom at the back of the house. [G] came back a minute later and ran upstairs crying. I heard [Mr Purdue] go into [G’s] bedroom and [G’s] screaming and crying stopped shortly after. I left the house with [W] to give [Mr Purdue] and [G] some space to spend time together. [G] was calm and happy for the rest of the day. That night, I put [G] into the shower and there was no bruising on her knee or any other part of her body. [G] did not complain of being in any pain. As deposed below, this is the day that [Ms Monroe] alleges I assaulted [G].
…
53.[In] May 2022 at about 5.00pm, Police attended my home, and I was arrested for assaulting [G]. I gave my statement to the Police at the Station and answered all their questions. After about 2 hours, I was allowed to leave the Police Station and told that they were not taking the issue any further and I was not being charged.
As indicated by Ms Q, the police investigated. They decided to take no action.
Dr O asked G about being hit by Ms Q. G told him that Ms Q had hit her but she could not remember any particular occasion when this had occurred. She could provide no context.
Ms Q denies ever having hit or smacked G.
I accept Ms Q’s evidence. I find that she has never hit, smacked or assaulted G. The campaign of information that the respondent spread about Ms Q via a local Facebook page and the reports to police made by the respondent were demonstrably false, mischievous and designed to cause trouble for Ms Q and by extension, the applicant.
THE LAW
In deciding whether to make a particular parenting order in relation to G, the court must regard G’s best interests as the paramount consideration: s 60CA of the Family Law Act 1975 (Cth). To determine G’s best interests, the court must have regard to the following:
(a)what arrangements would promote G’s safety, including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm;
(b)what arrangements would promote the safety of each person who has care of G, including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm. In this case, those other persons are:
(i)the applicant;
(ii)the respondent;
(iii)Ms Q, the applicant’s current partner;
(iv)G’s paternal grandmother; and
(v)G’s maternal grandfather.
(c)G’s views;
(d)G’s developmental, psychological, emotional and cultural needs;
(e)the capacity of the applicant and the respondent (as the only people in this case proposed to have parental responsibility for G) to provide for G’s developmental, psychological, emotional and cultural needs;
(f)the benefit of G of being able to have a relationship with the applicant and the respondent, and other people who are significant to her; and
(g)anything else that is relevant to G’s particular circumstances;
(h)any history of family violence, abuse or neglect involving G or:
(i)the applicant;
(ii)the respondent;
(iii)Ms Q;
(iv)G’s paternal grandmother; and
(v)G’s maternal grandfather; and
(i)any family violence order that has applied to the child or a member of the child’s family.
Further, in considering what order to make, the court must, to the extent that it is possible to do so consistently with G’s best interests being the paramount consideration, ensure that the order does not expose a person, presumably any person who might be, in some way, connected to G’s care, to an unacceptable risk of family violence: s 60CG of the Act.
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful: s 4AB(1) of the Act.
In the context of the current proceedings where there is in place a final parenting order made on 7 June 2018, s 65DAAA of the Act is also relevant. It provides:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
CONSIDERATION

At the conclusion of the trial, the respondent abandoned her case that the applicant and Ms Q represented a risk of physical harm to G. For my part, even without the respondent’s concession, I would not consider that the respondent or Ms Q represented anything but the minutest of risk of physical harm to G. Even if the risk comes to pass, the magnitude of the harm would, in my view be small because it would likely be the result of reasonable parental discipline.
Moreover, despite the respondent’s statements to Dr O to the contrary, I am not satisfied that, save for the administration of a “smack” for the purposes of discipline, the applicant has ever been physically violent towards G. Nor am I satisfied that he has engaged in behaviour that has been deliberately designed to intimidate or harass the respondent. The lack of particularisation and context about these matters in her sworn evidence detracts from its probity.
On the other hand, I am satisfied, and I find that the respondent has engaged in behaviour that has been, at the very least, harassing of the respondent and Ms Q. The respondent has blown the “smack incident” out of all proportion. Whilst the applicant’s conduct on that occasion was less than desirable and no doubt frightened G, the respondent’s reaction to it did nothing to ameliorate the situation. The respondent’s response to it was opportunistic and grotesque. The involvement of police and other authorities was a gross overreaction which could have been avoided had the respondent bothered to engage with the applicant over what G had told her. The applicant’s evidence demonstrates that he took responsibility for his actions and has taken steps to see that it will not be repeated.
The expert evidence before me paints a clear picture of a child who is aware of the conflict that rages between her parents and who, consequently, is at risk by reason of that conflict. The risk is real and significant. But whatever arrangement is put in place, I am satisfied that the conflict between these parents is likely to continue at some level. It has waxed and waned since separation and, I consider, will continue to do so. It will never entirely disappear. That is especially so given the evidence of Dr O about the respondent’s personality. The applicant has demonstrated that he is not adverse to provoking conflict on occasions.
Both parties claim to be aware of the conflict between them and its potentially devastating effects upon G. Both claims to have sought professional assistance to deal with it, but it continues, nonetheless. Whilst I consider that the applicant has demonstrated more insight into the existence of and necessity to deal with the conflict (by engaging over a long term with Dr Y and Ms X) nonetheless, the filing of his most recent affidavit detailing his medical “concerns” for G, only to concede that there are really no concerns, demonstrates the applicant’s propensity to be unduly reactive and exaggerate otherwise unremarkable events in G’s life for his own perceived advantage in this litigation. The respondent’s propensity to do that is clear from the evidence I have already discussed.
The consequences of her parent’s conflict upon G, as identified by Ms P and Dr O, none of which was challenged, have the very real potential to be visited upon her.
Accepting that G is at risk from her parents’ conflict, the task is to make orders that promote her safety. In that context, I treat the phrase “promote her safety” as meaning protecting her from that harm so far as it is reasonably possible to do so.
The orders pressed by the applicant would see G move to his full-time care and she spend no time with the respondent for what seems to be an arbitrary period of thirty (30) days from the date of the orders. Thereafter, she would have only video or telephonic communication with the respondent for another arbitrary period of sixty (60) days, on one occasion each fortnight for no more than fifteen (15) minutes. Thereafter, for a period of 120 days, G would spend supervised time with the respondent for no more than two (2) hours on each occasion once per week. Following that the applicant proposes that G live for a period of 180 days and during school term only, G spend time with the mother for three (3) nights per fortnight moving thereafter to incorporate school holiday time. He seeks no orders for the respondent to remain engaged with her treating health care professionals and G’s time is not made conditional upon her doing so.
However, there is not a shred of evidence that this regime would address the underlying conflict between the parties, G’s awareness of it, or the insidious effects of it upon G. Whilst its orders require G to attend therapy, either with or without one or both parents, this is not to assist the parents to deal with their co-parenting conflict, but rather to equip G to deal with a continuation of it. Nor do the orders serve to deal with the way in which the conflict between the parties has seeped into their extended households so as to recruit those members to that particular co-parent’s cause. I accept the submissions of counsel for the independent children’s lawyer that the evidence of Ms Q, the paternal grandmother and the maternal grandfather were all consistent with the proposition that members of the parties’ extended households have been recruited to their respective causes.
The applicant’s proposed orders are an attempt by him to deal with what Dr O describes as the respondent’s recruitment of G to her cause against the applicant. And here is the nub of the case. Dr O opines (my emphasis):
647.The mother’s particular failing in parenting capacity is in effective coparenting with the father, in a way that engages with [G’s] experience of the same, and meets [G’s] needs. The mother has ended up merging with [G] in constructing with [G] a shared mother/[G] father negative narrative. [G] experiences a vigilant focus upon meeting the mother’s need for [G] to show partisan loyalty to Mum over Dad/[Ms Q].
648.This circumstance creates stress for [G], and has involved [G] in multiple enactments of this negative narrative for example to the mother taking photographs, to police and therapists to two video recorded interviews and at least one medical genital examination. As [G] is getting older and is needing more integration of her own personal narrative over time, she is having more partisan and accusatory “meltdowns” in paternal care.
650.In my experience, it is highly likely if not probable that if arrangements continue where [G] spends substantial time in maternal care and with the mother having “right of veto” over both-parents-involved child-involved therapy, then over the next few years, [G] will enact the shared mother-[G] father-negative narrative by rejecting the father and any time with the father.
Put more plainly, the respondent’s conduct and the involvement of G in her conflict with the applicant, in circumstances where the respondent has actively excluded the applicant from involvement in the professional assistance for G, has led to G harbouring, at least overtly, a negative view of the applicant and an unwillingness to spend time with him so as to meet the respondent’s emotional needs. If that continues, Dr O thinks that G’s relationship with the applicant will be irreparably damaged, she will reject him and cease spending time with him.
Thus, the central issue in this case is the capacity of each of the parties to provide for G’s emotional well-being, and specifically, each parties’ capacity to foster and facilitate her relationship with the other parent. I have already observed that the parties seem to be in a state of perpetual conflict, but it is worth recording that in paragraphs 20 and 23 of her report, the author of the child impact report says:
20.From this preliminary assessment, [G’s] development and wellbeing seems to have been partially protected because, despite the parental conflict, there are actually many parallels in the parental behaviour of the parents. Both parents love [G] deeply and would not want to intentionally harm her psychologically. They appear to be committed and focussed parents, and both use the same parenting program, play similar games according to [G’s] interests, and both are actively involved in [G’s] care. [G] is accustomed to, and settled into, the current parenting routine which works, according to both parents, because exchange occurs largely through the pre-school. Both [Mr Purdue] and [Ms Monroe], expressed the view that, due to their poor communication and high mistrust of the other, parallel parenting works for them.
…
23.Both [Ms Monroe] and [Mr Purdue] appear to understand [G’s] needs and to be responsive towards her, for example with regard to her play and interests. It is important that both parents are open to hearing expert advice about [G] during the professional therapy they are currently engaged with. Both parents were able to clearly understand the importance of protecting [G] from their dispute and, from this assessment, [G] does appear to be somewhat protected, although she is aware that her parents do not speak.
However, those observations need to be considered against what has occurred since then as the parents’ conflict has continued.
The evidence permits me to find, and I find, that the respondent’s capacity to foster and facilitate G’s relationship with the applicant was impaired. Having regard to the evidence of Dr O, I find that impairment was probably the result of the respondent’s mental health condition. On the basis of what she told Dr O (none of which was challenged), he formed the view that in the respondent’s household G shared a negative view of the applicant:
641My impression overall is that the shared mother/[G] father-negative narrative is not reflective of what actually has been for [G] quite ordinary and adequate care in the paternal household over the years, from the father as well as from [Ms Q] and the paternal grandparents, and that the maternal negative narrative of abusive, intrusive and intimidating behaviour by the father and paternal extended family towards the mother is not reflective of what actually has been a quite reasonable and pragmatically child-focussed (if at times frustrated and accusatory) paternal approach to quite challenging behaviour from the mother herself.
Of the applicant, Dr O observed:
642There have been some failings in paternal parenting capacity, which included him resorting to smacking [G] on occasions including (and, the father reports, most recently) in March 2021. But, the father and [Ms Q] have been relatively open about these vulnerabilities and have been effective in seeking assistance for the same. The father sought to initiate therapy involving [G] and each parent the week prior to the smack in March 2021, precisely because he identified that he needed assistance with dealing with the bedtime routines at that time. The father has continued to seek parenting therapy since that time, and my impression is that he has made effective use of the same.
Dr O’s overall assessment was that the applicant has a stronger and significantly more stable and reliable parenting capacity than the respondent, particularly in meeting G’s more complex emotional, intellectual, psychological, relational and developmental needs. Dr O thought that this stronger, more stable and more reliable parenting capacity was linked to the applicant’s “stronger personality functioning, notably his stronger capacity for reflective functioning and empathic attunement, and his strong self-other boundaries, in terms of differentiating his own experience from that of the other, including [G], and the mother” (Dr O’s report filed 26 April 2024, paragraph 646).
But as Dr O notes at paragraph 690 of his report, there are what he describes as vulnerabilities in the applicant’s and his present partner’s parenting capacity that should not be overlooked.
Dr O points out that the respondent’s imperfect capacity to effectively co-parent G has imposed upon G by demanding that G join in the respondent’s negative narrative of the applicant “and show partisan loyalty” to the respondent over the applicant. It has resulted in G’s involvement “in multiple enactments of this negative narrative” such as the respondent taking photographs of G, taking her to police and therapist (without the applicant’s knowledge), to two video recorded interviews and at least one medical genital examination.
Whilst he harboured little concern for the applicant’s parenting capacity, Dr O thought that the adequacy of the respondent’s parenting of G was “quite state-dependent, that is the mother is very adequate when calm and reasonably secure herself, but becomes less adequate when she herself hits a peak of anxiety, distress, and/or vigilant defence against actual or perceived, current or impending, attack” (Dr O’s report filed 26 April 2024, paragraph 663). Thus, when she is compromised by reason of these matters or her mental health condition, the respondent’s capacity to meet G’s more complex emotional, relational and developmental needs is similarly compromised. According to Dr O:
685.…This maternal incapacity relates specifically to her reactivity against and distorted narrative regarding the father, but also more broadly relates to the mother’s lack of insight regarding her own vulnerabilities and [G’s] needs, lack of clear self-other boundaries between herself and [G], lack of capacity to reflect upon [G’s] experience and for empathic attunement with [G], and her poor modelling to [G] of patterns of relating to others. These maternal vulnerabilities are particularly likely to be evident during [G’s] adolescence, when the mother is likely to struggle to assist [G] with the developmental task of the development of a self, alongside but separate from the parent.
Having regard to the evidence, I am satisfied that both parents have the capacity to meet G’s day-to-day needs and are capable of doing so well. The respondent’s capacity to facilitate G’s relationship with the applicant was impaired in the ways described by Dr O. So too, the applicant’s capacity was impaired in different ways.
The effects of the impairment of the respondent’s capacity to foster G’s relationship with the applicant seem to have ameliorated somewhat. The respondent says that she has taken on board what Dr O says in his report. This is made out to some extent by the applicant’s own evidence that since 2023 at least, the interim orders have been observed and G has improved in his care. Ms Q’s evidence was to the same effect although neither she nor the applicant would give the respondent any credit for any part of the improvement.
Although Dr O records observations made by G about her living arrangements, I accept his opinion that little weight should be accorded to her observations. Ultimately, I think that G’s views are best encapsulated in what she told the independent children’s lawyer on 20 April 2024; namely that she would like her parents to be friends and to have substantial and significant time with both of her parents.
I have identified above that G has presently unmet needs. She has an ongoing need for counselling and therapy to assist her to navigate her parents’ conflict and inability to co-parent her. That she had such a need was recognised as long ago as the interim orders that were made on 7 July 2021. Dr O considers that (at paragraph 743 of his report):
743. The most important way that [G’s] special needs will be addressed will be through strong and stable living arrangements and adult care provisions, with (in my view) predominant time in paternal care, but ongoing connection with the mother. The child/parent/family therapy recommended below will assist to meet [G’s] needs indirectly through working with adults and households, and also directly through work with [G] as required.
G’s relationship with the applicant is described by Dr O as follows:
686.My impression is that [G] has a relationship with the father that is complex and contains some inner tensions and inconsistencies for her.
687.It is possible that in fact the circumstance is not complex: that [G’s] consistent father negative narrative as reported by the mother is in fact an accurate reflection of her lived experience of the father, [Ms Q] and [W]. If this were the case, then [G] has been consistently experiencing psychological, emotional and physical abuse in paternal care, as well as neglect of her needs.
688.But, that is not my impression.
689My impression is that [G’s] day to day lived experience of the father and of life in the care of the father and the paternal household has been mostly positive, and mostly secure, probably quite consistently since [G] was an infant, but at least over the last few years. This is an attachment relationship, in that [G] looks to the father to meet her needs and to protect her from harm when in the father’s care. In day-to-day life, there is significant security within this attachment relationship, in that [G] experiences the father (and [Ms Q] and the paternal grandparents) as reliably able to meet her day-to-day needs, and as mostly non-dangerous and able to protect her from harm.
In respect of G’s relationship with the respondent Dr O observes:
662.My impression is that [G] has a positive relationship with the mother, overall. This is an attachment relationship , in that [G] looks to the mother to meet her needs and to protect her from harm when in her care . In day-to-day life , there is significant security within this attachment relationship, in that [G] experiences the mother as mostly able to meet her day-to day needs, and as mostly non-dangerous and able to protect her from harm.
…
667.But, there are some important areas of insecurity in the [G]/mother relationship, notably the two-way separation anxiety within the [G]/mother relationship, [G’s] vigilant concern for the mother’s needs including the mother’s need for partisan loyalty against the father, and the mother/[G] shared externalising of blame for stresses within their own relating onto the father.
It seems uncontentious then, given that evidence and the position of the parties at the conclusion of the trial, that each accepts that G will benefit from a relationship with each of her parents, the respondent perhaps more reluctantly than the applicant.
In response to a question from Dr O, about the applicant’s impression as to the benefit for G, in spending time with the respondent, the applicant is recorded as saying:
344.Yes, definitely. [G] enjoys being with the mother. The mother encourages [G’s] creative side . .. the mother encourages [G] to [participate in extra-curricular activities] ... [G] has mountain of toys to play with , at the mother’s house . The mother encourages [G] to see friends, to do things ... normal everyday kid stuff.
The respondent’s view was more qualified. Dr O records:
102.The mother would like [G] to have a relationship with the father. The mother herself has a close relationship with her own dad .. . he’s one of the mother’s best friends, but will the father change?... No. The mother left because the father was assaulting her, and now he is doing it to [G]. The mother keeps hoping that the father will tum a comer ... change …get better for [G].
In my view, G will benefit from a relationship with each of her parents. I so find. Both have much to offer her and, their interpersonal conflict aside, present as excellent role models for her. Both the applicant and the respondent have significant positive attributes to their personalities and lives, exposure to which can only be to G’s benefit.
So too, G has good relationships with those in her extended families in both households, including W and V It would be to her benefit for those relationships to continue.
CONCLUSIONS

I am required by s 65DAAA to consider whether there has been a significant change of circumstances since the final parenting order was made on 7 June 2018.
Recently in the plurality in Radecki & Radecki [2024] FedCFamC1A 246 (Austin & Williams JJ) held that:
79We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
Radecki was handed down after I completed the hearing in this case, but neither party brought it to my attention, nor sought to make submissions about it.
By the final parenting order made in 2018, G was to live most of her time with the applicant (8 nights each fortnight) and the balance (6 nights each fortnight) with the respondent until she commenced school, at which time she would enter a week-about arrangement. Since then, those arrangements have changed by reason of a combination of the respondent’s non-compliance with the orders and interim parenting orders made on the application of one or other of the parties.
Some things, however, have not changed. The parties’ conflict has not changed. The fact that the respondent suffers from a mental health condition, or at least exhibits traits thereof, something about which the applicant has long been aware, has not changed. G’s relationships with each of her parents have not changed, despite the parties’ conflict and the respondent’s behaviour toward G.
No party attempted to identify any change in G’s circumstances that was sufficient to justify a reconsideration of her welfare. It seems to have been simply assumed that given all that has occurred, there could be no question that the present orders required reconsideration.
But, I am required to consider whether there has been such a change and in the absence of a finding that there is, the current final orders ought not be disturbed.
In my view, there has been no relevant change of circumstances. What has occurred is nothing more than a continuation of the parties’ conflict. That conflict led to the making of interim orders that disturbed the implementation of the 2018 final orders, but that, of itself, is not the type of change contemplated by s 65DAAA of the Act.
In my view, even if I was satisfied that there had been the requisite change in circumstances sufficient to warrant revisiting G’s welfare, the evidence does not support the orders proposed by applicant for a number of reasons.
First, whilst Dr O recommends that G live primarily with the applicant and there is a moratorium on G’s time with the respondent, that recommendation hinges upon Dr O’s opinion (reproduced earlier but repeated for convenience here (my emphasis):
650.In my experience, it is highly likely if not probable that if arrangements continue where [G] spends substantial time in maternal care and with the mother having “right of veto” over both-parents-involved child-involved therapy, then over the next few years, [G] will enact the shared mother-[G] father-negative narrative by rejecting the father and any time with the father.
Under the 2018 orders, the respondent does not enjoy a “right of veto” over both-parents-involved child-involved therapy. What has occurred is that the respondent has acted in contravention of the order for equal shared parental responsibility and the applicant has not moved swiftly to address that contravention. Given the clandestine way she went about having G consult with Ms AA, for example, nothing in the orders proposed by the applicant or the independent children’s lawyer would address such conduct by the respondent. The applicant proposes an injunction against the respondent, but that in practical effect is no different to the order for equal shared parental responsibility and the obligations cast by it and s 65DAC of the Act (now repealed).
Second, at paragraph 765 of his report, Dr O opines that:
765.If the court finds (as is my view) that [G] faces the risk of the loss of relationship with the father and paternal household in a context which is likely to falsely and negatively distort her perception of the father and his household (and thus of herself and her own personal narrative) in the long term, then the mitigation of this risk be given priority over the extent of [G]/ mother interactions, during the period of [G’s] growing up until age 16.
I do not accept that G faces the risk of the loss of relationship with the applicant and the paternal household – a premise upon which Dr O’s opinion is based. The independent children’s lawyer submitted that when the court has regard to G’s statements to both Ms P and Dr O I should quickly conclude that, despite the difficulties her parents have put in her way, G is cheerful, happy, engaged, has a loving relationship with both parents and is happy to be with both parents. Again, as the independent children’s lawyer submits, G’s descriptions of her own happiness in each household are completely at odds with the descriptions given by each of the parties.
Third, I accept the independent children’s lawyer’s submission that the solution to the situation in which G now finds herself, is not for her time with the respondent to be the subject of a moratorium. There is a real risk that it will be counter-productive. Dr O identified that a period of no time for G with the respondent would be distressing for her and it would have to be carefully managed with explanations from the independent children’s lawyer and the family consultant or “the father-in-law” (who was not identified). It is not at all clear that the detriment of all that would be outweighed by the benefit of bedding down G’s predominant reliance upon the applicant “and [Ms Q]”. I accept the independent children’s lawyer’s submission that therapy for G with each of her parents is essential, not just one of them and this is preferable to ceasing her time with the respondent altogether for a period.
Fourth, the imposition of a moratorium and then a gradual and restricted reintroduction of time between G and the respondent to a level nowhere near that provided for in the 2018 orders seems inconsistent with Dr O’s opinion at paragraph 655 of his report:
655.This is a circumstance where it will be of clear and substantial benefit for [G] to have a relationship with both parents. These two parents are each intensely committed to each other and love [G]. She has grown up spending substantial time with both, and she loves and knows both. The two are very different people in terms of their personality, style, and each are a gateway to connection with a larger and pro-social extended family.
Fifth, I was impressed by the respondent’s evidence given in cross-examination concerning the understanding she has obtained from Dr O’s report and from the work that she has done with her own therapist. Whilst the respondent’s evidence will always be open to the charge that it is too little too late and that it is an eleventh-hour epiphany, I consider that her evidence demonstrated a genuine understanding and a genuine desire to do better for G. Whilst the evidence demonstrates that the respondent has long standing concerns with her mental health, it also demonstrates that she has attended to those concerns. I do not consider that she had breached the terms of the 2018 orders dealing with the management of her mental health as the applicant alleges.
Sixth, the 2018 orders, as modified by orders made on 7 July 2021, have more or less been observed by the parties since mid-2022. The applicant’s own evidence is that since the difficulties in 2021 and 2022 he has perceived his relationship with G has improved as has G’s relationship with his partner. I accept the submissions made for the respondent that since at least early 2023 there has been little to no support for the proposition that the respondent has actively sought to undermine G’s relationship with the applicant or the paternal family more generally. This evidence then, tends to demonstrate that Dr O’s predictions about G’s relationship with the applicant have not and may not materialise. Dr O saw the parties and G initially in October 2022 and then interviewed the parties (but not G) again in June 2023 (by telephone). Dr O completed his report in June 2023. He has not interviewed the parties or G since.
DISPOSITION
The applicant does not establish that there has been a significant change of circumstances since the final parenting order was made in on 7 June 2018. In those circumstances, I must not reconsider it: s 65DAAA(1) of the Act.
Even if that view be erroneous, I do not consider that it is in G’s best interests to depart from those orders. The orders proposed by the applicant are not in G’s best interests and will cause her more detriment than benefit.
In my view, the difference between the June 2018 orders and those promoted by the independent children’s lawyer are unlikely to bring any benefit to G beyond that already visited upon her by a complete implementation of the June 2018 orders.
All parenting orders in the present application should be discharged. The orders of 7 June 2018 should be implemented by the parties, picking up at order 2(c) (stage 3) upon the recommencement of G’s school following the present Easter school holidays. Irrespective of any arrangements put in place by the parties for the Easter school holiday period, G will live the first week back from holidays with the applicant and the orders should be implemented accordingly.
I make orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 16 April 2025

File number(s):	SYC 1376 of 2017
Judgment of:	JARRETT J
Date of judgment:	16 April 2025
Catchwords:	FAMILY LAW – PARENTING – competing applications for child to live with – earlier final orders – no change in circumstances – s 65DAAA(1) engaged– applications dismissed and earlier orders implemented
Legislation:	Family Law Act 1975 (Cth) ss 4AB(1), 65CA, 65CG 65DAAA,
Cases cited:	Radecki & Radecki [2024] FedCFamC1A 246
Division:	Division 1 First Instance
Number of paragraphs:	182
Date of hearing:	1, 2, 3, 4 & 5 July 2024
Place:	Sydney
Counsel for the Applicant:	Ms Petrie
Solicitors for the Applicant:	Nolan Lawyers
Counsel for the Respondent:	Ms Gillies SC with Ms Bromberger
Solicitors for the Respondent:	Paul & Paul Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Stolier
Solicitors for the Independent Children’s Lawyer:	Brian Samuel & Associates

SYC 1376 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PURDUE Applicant
AND:	MS MONROE Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	16 APRIL 2025