Morcom & Morcom
[2025] FedCFamC2F 502
•28 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Morcom & Morcom [2025] FedCFamC2F 502
File number(s): MLC 276 of 2023 Judgment of: JUDGE STEWART Date of judgment: 28 April 2025 Catchwords: FAMILY LAW – PARENTING – Competing applications for live with orders and sole parental responsibility – Serious allegations of family violence – Mother alleges rape – Mother alleges attempts to kill – Violence occurred in front of the child – Mother’s allegations denied – Father alleges Mother has serious mental illness and possible delusion – Child Protection suggest possible systems abuse by Mother– Single expert opined that, whichever account the Court accepts, the other party would likely be showing signs of significant and enduring personality dysfunction – Evidence does not support Mother’s allegations – Evidence suggests Father’s allegations credible – Live with orders made on final basis – Not possible to determine final spend time orders at this stage – Interim supervised spend time orders – Orders for further psychiatric assessment of Mother – Matter to return to Court following assessment Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) former ss 67Z, 69ZW, 121; current ss 60B, 60CA, 60CC(1)(a), 60CC(2), 60CC(2)(a)(i), 60CC(2)(a)(ii), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(e), 60CC(2)(e), 60CC(2)(f), 60CC(2A), 61B, 61CA, 61DAA, 65DAAA, 65Y, 95(1)(d), 95(2)(d), 102NA
Children, Youth and Families Act 2005 (Vic) s 162(1)(e)
Convention on the Rights of the Child done at New York on 20 November 1989
Cases cited: Adamson & Adamson (2014) FLC 93-622
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Edinger & Duy (2023) 68 Fam LR 55
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Leventis & Leventis (2024) FLC 94-204
Pickford & Pickford [2024] FedCFamC1A 249
Sadasivam & Seshan [2019] FamCAFC 76
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444
Division: Division 2 Family Law Number of paragraphs: 358 Date of hearing: 16-20 December 2024;
13-14 January 2025Place: Ballarat Counsel for the Applicant: Ms Bowen Solicitor for the Applicant: Ballarat Lawyers Counsel for the Respondent: Ms Vogel Solicitor for the Respondent: Shapra Lawyers Counsel for the Independent Children's Lawyer: Mr McLeod (16-20 December 2024) Solicitor for the Independent Children's Lawyer: Ebejer & Associates ORDERS
MLC 276 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MORCOM
Applicant
AND: MS MORCOM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
28 APRIL 2025
THE COURT ORDERS THAT:
1.All extant applications be adjourned for Interim Defended Hearing with priority to a date to be advised in the September 2025 Ballarat sittings of this Court (“the adjourned date”).
2.The parties be at liberty to file updating affidavits with the Applicant to file by no later than 4.00pm on the day 28 days before the adjourned date, and the Respondent to file by no later than 4.00pm on the day 14 days before the adjourned date.
3.All previous parenting orders be and are hereby discharged.
4.The Father have parental responsibility (within the meaning of section 61B of the Family Law Act 1975 (Cth) ("the Act")) for the child X born in 2019 ("X") and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Act, PROVIDED ALWAYS THAT the Father keeps the Mother informed of significant long-term decisions that the Father makes in relation to X and actively seeks the Mother's input on such issues.
5.X live with the Father.
6.For the purposes of order 4 hereof, before any such long-term decision are made in respect of X:-
(a)the Father shall advise the Mother by email of the Father's proposal relating to X;
(b)if the Mother wishes to comment on the Father's proposal (or if the Mother has any proposal she wishes to make relating to X on that issue), the Mother shall, within seven (7) days after the date of the Father's email, advise the Father by one email (to the email address from which the Father sent his communication) of her views;
(c)upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother's views;
(d)after the Father has considered the Mother's comments, the Father shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision;
(e)if the Mother does not respond by email as provided for in order 6(b) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and the Father may decide the issue; and
(f)for the avoidance of doubt, nothing in these orders requires that the Father provide the Mother with a statement of his reasons for decision or evidence of his consideration of her views.
7.The Father advise the Mother by email of:-
(a)a nominated mainstream medical and dental clinic ("the nominated clinics") at which X attends for general medical and dental care and each of the parties shall ensure that X attends that clinic for treatment at first instance, SAVE FOR in the case of emergency or impracticability; and
(b)any changes to that nominated clinic at least fourteen (14) days prior to such change occurring.
8.The Father do all such acts and things as may be necessary to ensure that the Mother receives copies of any medical and/or academic assessments in relation to X.
9.Despite orders 4 through 6 hereof, the Father must not change, seek to change, or consent to the change of, X's name.
10.The Mother be and is hereby restrained from taking X to a medical consultation or for medical treatment (including allied health professionals and/or unaccredited counsellors or other unaccredited treaters) SAVE FOR in case of emergency.
11.Liberty is granted to the Mother to consult with X's doctors and allied health professional in order to obtain information about X's health. These consultations shall be at the Mother's own expense and in the absence of X.
12.Liberty is granted to the Mother to consult with and/or receive information (including school reports and newsletters) from any kindergarten, daycare, or school that X attends (and this order shall act as authority for same) PROVIDED ALWAYS THAT:-
(a)the Mother does not denigrate the Father or the Father's family to that kindergarten, daycare, or school;
(b)any such consultation occur in the absence of X; and
(c)any such consultation or receipt of information be at the Mother's expense.
13.Each parent shall be entitled to receive copies of school reports, notices, photograph order forms and correspondence normally provided to parents.
14.Until further order, X spend supervised time with the Mother for up to three hours on one occasion each week at the City C Children's Contact Centre (or another contact centre as agreed in writing between the parents) in accordance with any directions given by contact centre staff, and the parents do all such acts and things as may be necessary to register for and access this service.
15.Until further order, the Father be responsible for the cost of X's time at the contact centre, but the Mother otherwise pay her own costs associated with any travel to and from City C for the time with X.
16.Until further order, X communicate by telephone or FaceTime call with the Mother each Wednesday between 5.00pm and 5.15pm with the Mother to initiate the call to the Father's mobile and the Father to make X available to take the call.
17.Until further order, the Father may monitor the telephone or FaceTime call pursuant to order 16 hereof, and end the call if the subject matter becomes inappropriate or contravenes these orders.
18.The Mother forthwith attend on (and comply with any directions of) Associate Professor B for a mental health, psychiatric, and personality assessment at such times and locations and in such manner as is directed by Associate Professor B, including complying with any diagnostic processes Associate Professor B thinks warranted.
19.Following the assessment pursuant to order 18 hereof, Associate Professor B prepare an updated report detailing:-
(a)what, if any, current mental health condition(s), psychiatric diagnosis/es or personality disorder(s) apply to the Mother;
(b)any impact of any mental health condition, psychiatric diagnosis or personality disorder the Mother may have upon the Mother's capacity to care for X and/or cooperatively co-parent with the Father;
(c)any risks or harms that he considers apply to X from contact and exposure to the Mother (with discussion of the likelihood of occurrence and the severity of impact on X if the risk occurs), including but not limited to:-
(i)any potential for parentification of X;
(ii)any potential for X being exposed to self-harm or suicidal behaviours or ideation by the Mother;
(iii)any potential for suicidal behaviours by the Mother (if they are likely to occur) to include a risk of serious physical harm or injury to X, including threats to life;
(iv)any potential for co-dependency and/or excessive emotional enmeshment between X and the Mother to develop;
(v)any potential for physical, emotional or verbal abuse of X by the Mother; and
(vi)any potential for sudden rejection of X by the Mother for perceived slights, misbehaviour or imperfections;
(d)what management strategies may be effective to reduce the likelihood of such risks eventuating, and/or reduce their impact on X should they eventuate;
(e)what options for treatment (if appropriate) exist for the Mother, and which (if any) Associate Professor B would recommend;
(f)what factors would affect the likely success of any treatment;
(g)the Mother's likely prognosis both if she engages with any applicable treatment and if she does not; and
(h)any other matters relating to the mental health or personality of the Mother that Associate Professor B considers important to X's welfare or best interests.
20.If practicable, IT IS REQUESTED THAT the updated report pursuant to order 19 hereof be provided by Associate Professor B to the Independent Children's Lawyer by 30 June 2025.
21.Prior to the preparation of the updated report pursuant to order 19 hereof, the Independent Children's Lawyer provide to Associate Professor B a copy of these reasons for use in both the preparation of the report and any diagnostic process he undertakes.
22.The parties have liberty to apply to the Chambers of the Judge conducting the Ballarat Circuit to seek an earlier hearing date in the event that either:-
(a)the updated report pursuant to order 19 hereof is provided to the Independent Children's Lawyer prior to 31 July 2025; or
(b)the Mother refuses or fails to engage with Associate Professor B in accordance with order 18 hereof.
23.The parents each be and are hereby restrained by injunction from:-
(a)using physical force to discipline X;
(b)exposing X to any form of family violence, including but not limited to verbal abuse, emotional abuse, and/or physical abuse, including by allowing any other person to do so;
(c)using or being under the influence of any illicit substances during time X is in their care, or exposing any person under the influence of any illicit substances;
(d)denigrating the other parent, their friends, and/or their family to, or in the presence or hearing of, X, or allowing any other person to do so;
(e)discussing these proceedings in the presence or hearing of X, or allowing any other person to do so (SAVE FOR as provided for by an order of this Court).
24.Within 28 days of the date of these orders, the Mother provide to the Father full details of:-
(a)X's NDIS package, provider(s), and eligibility;
(b)any medical professional or allied health provider (included unaccredited providers) upon whom X attends;
(c)any other medical or educational supports of any kind X currently uses or accesses; and
(d)any cocurricular activities or sports in which X currently engages.
25.In the event that the Mother fails to comply with order 24(a) hereof, the Father have liberty to apply to the Chambers of the Judge conducting the Ballarat Circuit for further orders, including but not limited to a subpoena directed to the NDIA.
26.IT IS REQUESTED THAT the Australian Federal Police remove the name of the child X born in 2019 ("X") from the Airport Watch List at all points of international arrivals and departures in Australia.
27.X be permitted to hold an Australian travel document and to travel internationally without the express written consent of the Mother.
28.The Father be permitted to apply for and renew an Australian travel document for X without first obtaining the consent of the Mother.
29.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the Father be authorised and entitled to:-
(a)remove X from the Commonwealth of Australia for the purposes of travel at his sole discretion; and
(b)authorise the removal of X from the Commonwealth of Australia for the purpose of travel with a third party, at his sole discretion.
30.SAVE FOR in the case of an emergency or an urgent situation whereupon the parents are to communicate via telephone or as is otherwise provided for in these orders, the parents must communicate with each other solely by use of AppClose (or another parenting application agreed in writing between the parents) for matters pertaining to X only.
31.Each parent shall ensure that the other parent is notified by SMS text message or telephone call as soon as practicable if, while in their care:-
(a)X is admitted to hospital; or
(b)X is involved in a medical or other emergency; or
(c)X is prescribed medication.
32.The parties advise each other of any change of telephone number or contact address within 24 hours of such change occurring.
33.The Independent Children's Lawyer meet with X in person as soon as possible to explain these orders to her in a manner and to a level of detail appropriate to X's age and development, and the Father do all such acts and things as necessary to facilitate that meeting and discussion.
34.A copy of these reasons and orders be provided by the Chambers of Her Honour Judge Stewart to the Victorian Department of Families, Fairness and Housing.
35.Each of the parties have liberty to provide a copy of these reasons to:-
(a)Victoria Police;
(b)any Magistrates' Court or Children's Court in which proceedings take place in relation to the Mother, the Father, and/or X;
(c)any D Services social worker working with the Mother from time-to-time;
(d)any treating medical practitioner X sees for counselling, mental health treatment, or in relation to a psychological, psychiatric, or developmental condition;
(e)any treating medical practitioner the Father sees for counselling, mental health treatment, or in relation to a psychological or psychiatric condition;
(f)any treating medical practitioner for the Mother sees for counselling, mental health treatment, or in relation to a psychological or psychiatric condition; and
(g)Ms E, and any other unaccredited counsellor the Mother sees from time-to-time.
36.Each of the parties have liberty to provide a copy of these orders to:-
(a)any school, afterschool care, daycare, or medical clinic at which X attends;
(b)any National Disability Insurance Scheme ("NDIS") provider offering or supplying services to X from time-to-time; and
(c)any National Disability Insurance Agency ("NDIA") personnel, or persons operating under contract to the NDIA, who is involved in assessing X's needs related to, eligibility for support under, or other aspect of involvement with the NDIS.
37.Each of the parties have liberty to apply to the Chambers of Her Honour Judge Stewart with regards to the form, but not the substance of these orders.
38.In the event that it is agreed between the parties, including the Independent Children’s Lawyer, there be liberty to apply to have this matter transferred to Division 1 of the Federal Circuit and Family Court of Australia to have the matter determined remotely before Her Honour Stewart J.
39.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.As section 102NA of the Family Law Act 1975 (Cth) applies, the Applicant Father is to do all things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme ("the Scheme") to enable representation at the final hearing.
B.The parties have been advised by the Court that:-
(a)pursuant to these orders, any cross-examination of either party may only be conducted by a legal practitioner on their behalf; and
(b)a copy of these orders will be provided by the Court to Legal Aid Victoria.
C.Further information about the legislation and the Scheme can be found in the attached Family Violence Information Sheet.
D.The Respondent Mother has already made an application to Victoria Legal Aid and been granted funding under the Scheme.
E.Despite the issuing of these reasons, the matter is on-going, and the Court anticipates cross-examination may be required at the adjourned date, or a later date (if applicable).
F.The purpose of the adjourned date will be to determine what (if any) further orders regarding spend time between X and the Mother should be made, following receipt and consideration of the updated report of Associate Professor B.
G.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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
JUDGE STEWART
INTRODUCTION
Background to the Proceedings
These are parenting proceedings relating to the child X ("X") who is five years old. X's parents cannot agree where and with whom X should live and how much time X should spend with the parent with whom she is not living.
Both parents agree that their relationship was volatile (although with very different accounts of who was responsible for that volatility and how it manifested). The parents separated under one roof on or around 1 June 2022. After a series of incidents in late 2022, the Mother moved out of the former matrimonial home, initially taking X with her (unilaterally). Those incidents are discussed in greater detail in these reasons.
Although the parties initially styled the case as a relocation proceeding, it is not. It is clear from the parents' respective places of residence - the Father in Suburb F (a suburb of City C) and the Mother in metropolitan Melbourne (at an address disclosed to the Court, but not to the Father or the Independent Children's Lawyer) - the real issue in this case is with which parent X should live.
The Parties’ Proposals
At the commencement of the proceedings, the Father proposed that X should live with the parents in a shared care arrangement in the City C area, spending four nights per week with him, and three nights per week with the Mother. The Father was supported in that application by the Independent Children's Lawyer. Upon it becoming plain that the Mother would remain in the Melbourne Metropolitan area, both the Father and the Independent Children's Lawyer put an initial position that X should live with the Father in the City C area and spend time with the Mother every second weekend, on special occasions, and during school holidays. The Mother proposed that X should live with her in the Melbourne Metropolitan area, and spend time with the Father for four hours each month, under paid supervision by an agency specialised in the provision of supervision services.
Each of parents sought an order for sole parental responsibility for decisions regarding X's welfare (subject to a consultation provision).
The Father's and the Independent Children's Lawyer's proposals evolved during the final hearing. At the conclusion of the proceedings, the parties' proposals were as follows:-
(a)The Mother's proposal did not change, in that she maintained X should live with her in the Melbourne Metropolitan Area and spend supervised time with the Father for four hours a month (notwithstanding that she conceded during cross-examination that she made that proposal as a forensic decision, and did not in fact believe any amount of time between the Father and X was in X's best interests). As X was due to commence school this year, the Mother proposed that X commence her preparatory year at G School.
(b)The Father's proposal had changed. He said that X should live with him and spend time with the Mother for two hours each fortnight, with such time to be supervised at the City C Children's Contact Centre. He proposed that he be solely responsible for decisions regarding X's welfare, he proposed that X attend H School this year. X had been enrolled at H School, pursuant to consent orders made on 7 August 2024. Although the Father sought final orders, he initially proposed that after a period of two years, the Mother should have liberty to apply for revised parenting orders (presumably on the basis that the Mother would seek medical treatment in the interim, and may therefore be in a position to argue for X to spend increased time with her thereafter). Properly, Counsel for the Father subsequently withdrew that proposal, correctly recognising that the process for seeking new parenting orders is governed by section 65DAAA of the Family Law Act 1975 (Cth) ("the Act"), and I have no power to gainsay or vary the operation of that section.
(c)The Independent Children's Lawyer's position had likewise changed, and again largely mirrored the Father's, save in one respect. The Independent Children's Lawyer proposed that X should only spend time with the Mother four times per year, at the City C Children's Contact Centre, and that these should be final orders (which the Independent Children's Lawyer acknowledged would effectively end any prospect of a meaningful relationship between X and the Mother). Counsel for the Father emphasised that the Father did not support this more restrictive position, and still held hopes for X being able to have a relationship with the Mother.
The Mother's position is based on her assertion that the Father is a risk to X. She alleges a significant history of family violence perpetrated against her by the Father, to which the Mother says X was exposed. The Mother regards herself as a long-term victim of extreme and escalating family violence at the Father's hands, and says she was "tortured" by the Father (in relation to an incident in early December 2022) and then that (in late December 2022) the Father "abducted" her and X in circumstances the Mother says made her fear for her life.
The Mother argues she has been unfairly maligned by various authorities during her efforts to seek assistance, as in all but one report the Mother says she has been mistakenly identified as a perpetrator of family violence against the Father (in relation to a second incident, Victoria Police revised their identification of the Mother as the perpetrator, and now identify her as the affected family member, although I have reached a different conclusion, and I discuss this later). The Mother says the Victorian Department of Families, Fairness and Housing ("DFFH") have unfairly characterised her as a person who engaged in "service shopping" and incorrectly labelled her a "systems abuser".
The Mother points to her allegations that X returns from spending time with the Father with bruising, scratches, cuts or burns, which would be concerning if substantiated. The Mother says that upon returning from spending time with the Father, X cries, screams, and does not want to be touched. In a challenging allegation to assess, the Mother says that X makes disclosures of particular concern, saying "Daddy takes naked photos of me" and "Daddy hit me". Although Counsel for the Mother repeatedly and unambiguously told the Court the Mother does not consider the Father to be a paedophile nor someone with any interest in child sexual abuse material, the Mother's evidence and general presentation appeared at odds with that submission.
The Mother's heightened view of the risks posed by the Father renders her incapable of contemplating that X could be safe in the Father's care, or that there could be any positive benefit to X from an ongoing relationship with the Father. The Mother suggests that her experience of family violence at the hands of the Father has "traumatised" her life, and that the Father's actions towards her and X were "scary and inhumane". She styles herself and X as "victim-survivors", and did not resile from the position stated in her affidavit that "If [Mr Morcom] continues to be part of [X] [sic] life, it would ruin her further".
The Father for his part acknowledges that the parents had a toxic relationship, in which both parents perpetrated family violence against the other. He denies the serious allegations of family violence made by the Mother, which I shall come to. Instead, the Father acknowledges situational family violence arising from an unhappy and highly stressful relationship during which the Mother exhibited serious and concerning personality disturbance and suicidal ideation. The Father alleges he too has been the victim of family violence perpetrated by the Mother, including controlling behaviour designed to isolate him from his family and deprive him of the opportunity to nurture a relationship between X and the Paternal Grandmothers (one of whom is the Father's biological mother and the other being a step-mother, who are a married same-sex couple).
The Father and the Independent Children's Lawyer are concerned that (what they allege to be) the bizarre and escalating nature of the allegations made by the Mother about the Father present psychological and emotional risks to X. Primarily, their concerns have focused on X being exposed to a false narrative regarding her safety in the Father's care (although as discussed below I consider there are additional risks that require further investigation). The Father is concerned that if this situation continues or even worsens, X will feel impelled not only to reject the Father, but to do so in circumstances where he is falsely demonised to her. The Father also raises several additional matters regarding the Mother's capacity to adequately attend to X's medical needs in circumstances where X presents as a child with some special needs, including requirements for speech therapy and occupational therapy, and a requirement for further investigation into a possible diagnosis of Autism Spectrum Disorder.
X's circumstances are therefore troubling. For reasons I shall come to, I do not accept that the Father has perpetrated the serious acts of family violence the Mother alleges (although I take note of his admission to having committed family violence at a markedly lower level of severity throughout the relationship). It is challenging to ascertain whether the Mother has been deliberately untruthful in her accusations against the Father, or whether she has created a false narrative which she now accepts. Associate Professor B, (who for ease of reference I shall refer to as “Dr B”, with no disrespect intended) the single expert appointed to conduct psychiatric assessments of each of the parents said:-
55. Should the Court find that the allegations regarding [Mr Morcom] were not proven, this may be further indication of psychiatric disturbance in [Ms Morcom], potentially a tendency to deceive, an attempt to improve her legal position or a delusional state, although I consider the latter very unlikely given there are no other signs of psychosis.
In a case such as this which is rich in factual detail, allegation and counter-allegation, the parties naturally focussed on a number of key events. This case proceeded on and beyond a Ballarat Circuit sitting over a period of 6 days (a seventh day was aborted due to difficulties in proceeding over Microsoft teams). The key incidents focussed on by the parties shall be referred to as follows:-
(a)the 2018 Balcony incident;
(b)the late 2020 assault and sequelae;
(c)the November 2022 overdose and alleged rape;
(d)the early November 2022 incident; and
(e)the late November 2022 J Venue incident.
These various alleged incidents shall be dealt with in some detail later in these reasons. I do however acknowledge that there are many other incidents alleged by the Mother some of which arose from her affidavits and her reports to witnesses and some of which arose during the course of her evidence in Court. The Mother was the Respondent and therefore the Father was cross-examined at first instance. Accordingly, some matters raised by the Mother in her evidence were not put to the Father by counsel for the Mother. I also note that the Mother’s Counsel was briefed via a grant through the Commonwealth Family Violence and Cross-Examination of Parties Scheme due to the mandatory operation of section 102NA of the Act, which prohibits direct cross-examination of the parents by the other parent.
I am aware that Counsel briefed under that scheme are funded at reduced rates and are often briefed merely days before a hearing. Cases funded under that scheme are often at the more complicated and difficult end of the spectrum and this case is one of them. It is to all Counsel's credit that nobody took puttage points. To do so in a case such as this would be unfair to both parents and Counsel. What that does mean is that there are some allegations made by the Mother upon which the Father was not cross-examined and thus it is very difficult for me to assess those matters. Nevertheless, I am satisfied that the incidents that have been traversed in detail enable me to comfortably move to the wider assessment of what is the arrangement which will best serve X moving forward. Where I refer to a matter with a reference to that matter not being put to the Father I am not being critical but rather simply identifying alleged facts and incidents where a finding is challenging and/or unavailable on the evidence. In particular, I am satisfied that Counsel for the Mother presented her case in a way that competently ventilated the key issues in the Mother's case under difficult circumstances.
In a moment, I shall turn to the detailed narrative and issues in these proceedings. However, by way of introduction, I have reached the following findings and conclusions:-
(a)each of the parents has experienced family violence with the other as perpetrator;
(b)the Mother's narrative of the incident in early December 2022 is unlikely to be true, and where her evidence is in conflict with the evidence of the Father, I prefer the Father's evidence;
(c)each of the parents have psychological vulnerabilities;
(d)the Father's psychological vulnerabilities are being treated and appropriately managed;
(e)the Mother's psychological vulnerabilities as assessed by the Court are undiagnosed and untreated;
(f)X is not at unacceptable risk of harm in the Father's care;
(g)X is at an unacceptable risk of psychological and emotional harm in the Mother's care;
(h)X should be placed into the primary care of the Father;
(i)the Father should have parental responsibility for X, and sole decision-making authority in respect of all decisions concerning major long-term issues for X (although a name change would not be in X's best interests);
(j)it is not currently possible to assess what long-term arrangements for time with the Mother would be in X's best interests, so further information will be needed; and
(k)in the interim, while awaiting that further information, X should spend supervised time with the Mother at a contact centre.
The above is a summary of my findings after considering all the evidence. I have formed the view that it is appropriate and necessary for X's on-going care that the orders for her to live with the Father and for the Father to have decision-making authority for her should be final orders. However, at this time, the arrangements for X to spend time with her Mother cannot be finalised. Thorough ventilation of the issues at trial have demonstrated that a proper assessment of the risks and benefits to X from different time arrangements with the Mother will require an in-depth diagnostic assessment of the Mother. That diagnostic assessment is only possible with the benefit of the factual findings I will make. Accordingly, I will take the unusual step of making interim orders regarding the time X will spend with the Mother, and order the provision of a further report following a diagnostic assessment of the Mother, after which the matter shall return for further hearing. I am satisfied I have the power to make such orders on an interim basis, even while making final orders on other matters.
NARRATIVE
I shall now turn to a more detailed history and narrative of these proceedings and the events leading up to them in order to assess the complex issues present in this case. It is necessary to examine each parent's personal histories and the history of their relationship both before and after separation.
In these reasons, and pursuant to section 140 of the Evidence Act 1995 (Cth), the standard of proof is to the balance of probabilities. During the hearing, there were numerous facts and matters referred to by the parties. It is not possible to refer to every fact and/or matter in these proceedings, nor is it necessary to do so. I have had regard to the totality of the evidence in these proceedings. If I have not referred to a particular fact or matter, it does not follow that I have not had regard to it.
As is evident from the introductory description above, very grave accusations have been made in this case. While that does not alter the requirement that facts be proved to the balance of probabilities, it does mean that I must be mindful of what is sometimes referred to as the 'Briginshaw Test'. In the case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ("Briginshaw"), the High Court emphasised that it is not enough for a trial judge simply to feel that one account is more probable than the other, the trial judge must be actually persuaded of the allegations made. His Honour Rich J referred to the need for the trial judge to be "reasonably satisfied" that the allegations were correct, and have a "definite and clear opinion of the truth of the charge" (at 351).
There is a real tension between needing to adhere to a balance of probabilities standard and needing to ensure that serious adverse findings are supported by appropriate evidence. I approach the grave accusations the Mother makes against the Father with caution, and any finding I make that the Father committed the acts the Mother alleges should have evidentiary support commensurate to the severity of the allegation. The same applies in reverse, for the Father and the Independent Children's Lawyer have presented cases founded on an assertion that the Mother has engaged in systems abuse and is suffering from a psychiatric/ psychological illness of some kind. Those are also serious findings, with real consequences for the Mother's ability to access various protective systems in the future because she will have been branded unreliable by this Court.
The Full Court has recently emphasised the need for caution in making family violence findings and in assuming that particular parties are or are not at fault. In Pickford & Pickford [2024] FedCFamC1A 249 ("Pickford"), Their Honours Austin & Wilson JJ said:-
79. However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy (2023) 68 Fam LR 55). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis (2024) FLC 94-204 at [13]–[19]).
I have also had the opportunity to observe the parents give evidence. The Court generally avoids making adverse credit findings if a case can be otherwise decided (Adamson & Adamson (2014) FLC 93-622, at [89]-[90]). Here, it is necessary to make credit findings. I cannot reconcile the parents' accounts of the pre-separation relationship merely as differences of perception. Each makes allegations that the other directly denies, and the safety analysis at the centre of this case revolves around which (if either) account I accept. I discuss the parents' evidence in detail below, but in general I have found that the Mother's evidence was not credible, and the Father impressed as a witness of truth. In general terms, I prefer the Father's account of key events.
In finding the Father's account more credible, I am cognisant of the risks highlighted in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, where the High Court referenced scientific research to the effect that even learned and experienced judges may not always reliably be able to discern the truth purely by observing witnesses in Court (at [31]). The High Court also noted a lengthy line of precedents that "have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses" (at [30]). That caution is especially relevant in a case such as this where the principles articulated in Briginshaw require that I make my findings about the parents’ respective allegations based on evidence commensurate to the gravity of the facts alleged. As is evident in my analysis below, my findings regarding the parents' respective credibility is also grounded in comparing their evidence with the evidence available in external documentation.
Relationship and Procedural History
The Father was born in Australia, and is 37 years old and lives in Suburb F, a suburb of City C. His biological mother subsequently repartnered into a same-sex relationship, with both partners serving a parental role for the Father. Accordingly, these reasons refer to the Paternal Grandmothers when discussing the Father's extended family. The Father describes himself as self-employed (although in reality he is employed by a company as a contractor) involved in the provision of online adult entertainment services working flexible full-time hours from home, and earns approximately $180,000 per annum. The Father's employment is relevant in that one of the Mother's stated concerns for X is "because child pornography is involved in his [the Father's] work".
The Mother was born in Country K and is 35 years old. In pursuit of a previous relationship, the Mother travelled to live in Australia in 2015, but that relationship ceased in mid-2016. The Mother became an Australian citizen in late 2023. She is pursuing her studies in allied health (although in evidence she said she is not currently studying), having previously embarked on a course in education. The Mother runs her own small business which is a children's entertainment business. The Mother told me she earns around $20,000 per annum from this endeavour. In addition to her work in her small business, the Mother also engages in modelling. This becomes particularly relevant because (as I will discuss below), in late 2024 the Mother left X in the Father's care for around two to three weeks while she travelled to Europe to model. The Mother stated she was paid around $4,000 for that modelling work.
The parents met via an online dating application in 2017. They commenced living together in mid-2017 and married in 2019. Their relationship and marriage produced X, who was born in 2019.
As I have alluded to, it seems that the parents' relationship was tumultuous and toxic. The Mother alleges that at some point in 2017, the Father pushed her on the bed when he was annoyed with her, and would attempt to exert control by telling her what to wear to events. The Father denies both allegations.
Also at some point in 2017, the Mother alleges that during a camping trip with the Paternal Grandmothers, the Mother and Father argued while sitting on the bed, and placed his hand on her forehead and pushed her head down on the bed.
The Father alleges that in 2018, the Mother attempted to commit suicide by jumping off a highrise balcony, and says he needed to physically restrain her, during which struggle the Mother bumped her head on a barstool. The Mother denies a suicide attempt (although admits to attempting to open the locked balcony door), and says the Father grabbed her and threw her across the room, leading to her head injury. The Mother further alleges that the Father then grabbed her by the shoulders and said "Do you want me to throw you out myself". This is one of the key events referred to under the heading of the 2018 Balcony Incident.
As I have said, there were a number of incidents alleged by the Mother upon which there was no cross-examination. Prior to the breakdown of the marriage those incidents are as follows:-
(a)The Mother alleges that, during 2019 (while she was pregnant with X), the Father escalated verbal abuse, calling her "worthless", and on one occasion coerced her to stay late at an event, notwithstanding that she was tired and feeling unwell. These allegations were not put to the Father, but in general he denied engaging in coercive control of the Mother.
(b)During June 2019, the Mother alleges that she and the Father had an argument, which the Mother says followed the Father discovering she had called one of the Paternal Grandmothers to ask about help in managing what she alleges to have been the Father's behaviour. The Mother characterised this as the Paternal Grandmother having betrayed her, as she had thought the conversation was private. The Mother alleges that during the argument the Father began to slap the Mother repeatedly across the face with both hands. The Mother concedes there were no bruises or marks left during this alleged incident, but asserts that was due to her blocking the strikes with her hands. This incident was not put to the Father.
(c)In April 2020, the Mother alleges that a "family meeting" with the Father and the Paternal Grandmothers degenerated in an argument which "caused [her] to fear that they would be emotionally abusive towards [her] again." The Mother further alleges that in the aftermath, she begged the Father to protect her from the Paternal Grandmothers, to which he replied "you're not gonna stop are you?", before grabbing her head and shoving her face into the mattress. This incident was not put to the Father.
(d)In June 2020, the Mother alleges the Father said to her "do you want me to slap your face" after she made a minor mistake. This incident was also not put to the Father.
(e)In July 2020, the Mother alleges the Father slammed her face into the bed repeatedly. This incident was also not put to the Father.
(f)Between October 2020 and June 2022, the Mother alleges the Father engaged in coercive control through financial abuse, denying her access to her own bank account. This allegation was not put to the Father.
(g)On 21 December 2020, the Mother alleges the Father told her, "my psychologist and your psychologist don't want to see you anymore". This allegation was not put to the Father.
(h)In January 2021, the Mother makes non-specific allegations that the Father "said various things" that made her doubt herself, and "implied she had a mental illness". The Mother alleges this was a form of coercive control. This specific incident also was not put to the Father, although he denied engaging in coercive control generally.
(i)On 10 February 2021, the Mother alleges the Father threatened to "tell… everything" to the facilitator of the Caring Dads Program the Father was completing at that time. The Mother did not explain during the trial what the content of this threat signified. This incident also was not put to the Father.
(j)On 11 March 2021, the Mother alleges the Father told her "you have a serious mental problem", and downplayed his alleged family violence. This incident was not put to the Father.
(k)On 13 March 2021, the Mother alleges the Father pushed her to the bed during an argument. This incident was not put to the Father.
(l)On 2 April 2021, the Mother alleges the Father dislocated X's arm. This incident was not put to the Father.
(m)On 26 April 2021, the Mother alleges that during an argument the Father again said she had mental issues and needed help, and that he would "bring [her] down". This incident was not put to the Father.
(n)On 29 November 2021, the Mother alleges that the Father told her she had 19 hours to accept that she was "lower" than him, they would never be equal, and that she needed to obey him. This incident was not put to the Father.
At times X was exposed to the dysfunction within the parents' relationship. In late 2020, the parents agree that they had an argument about whether the Mother had been recording the Father, and the Mother states X was present during this argument. The Mother alleges the Father pushed her repeatedly, causing her to fall to the floor and bruise her head and tailbone. The Father says he grabbed her wrist, but no more, and says he was worried for her safety. The Mother reported this incident to Victoria Police in early 2023, but I draw no inference from that timing, as it is not uncommon for family violence victims to make reports once they have left the relationship. Victoria Police initially charged the Father with a series of offences in relation to this incident, but later withdrew all charges save for common assault, to which the Father entered a plea of guilty. Counsel for the Mother put to the Father that he was convicted for this incident. This was inaccurate and rectified in cross-examination by Counsel for the Independent Children's Lawyer. Initially, a conviction was recorded for this incident, with the Father sentenced to a community corrections order (“CCO”). The Father successfully appealed that sentence, and the final result was no conviction being recorded and the Father was instead placed on a good behaviour bond. This is one of the key events referred to under the heading of the late 2020 Assault and Sequelae.
On 30 October 2020, the Father alleges the Mother coerced him to send a text message to the Paternal Grandmothers (Exhibit M7), in which he admitted to committing family violence, expressed shame and remorse, and said that the Paternal Grandmothers would no longer be able to have a relationship with X. The Mother denies coercing the Father at any point, but agrees the text message was sent. Both parents agree the message was sent as a follow-up to the Father committing common assault earlier that month. The message read:-
Hello Mum, I just had my first session with a Psychologist for Anger Management, I’ve known for a while that I’ve had something of a short fuse, but ever since we came back from the [Country K], the tension between [Ms Morcom] and you guys has pushed me to a breaking point, nearly every single argument had been about or related to what happened, I have tried to smooth things over so many times, but [Ms Morcom] feels very hurt to the point she just doesn’t want to see you guys ever, she feels like a baby maker. I’m not a wife beater, but I have become physical, I’ve held her very tightly, pushed, shaken and finally thrown her, I didn’t mean to throw her hard, but she got some bad bruising, this is the point where I could not deny professional help anymore, the last altercation was because I found out she was recording conversations between us and I freaked out and kept her phone because she has mentioned she wants to take [X] and go back [Country K] [sic], that she will sue for custody, she kept trying to take the phone from me and I wanted to talk but she felt scared and wanted to call the Police for domestic violence. It was very rotten what I did and I have brought great shame to myself and family there is no excuse for my behaviour, but I just wanted you to know that I am getting help, I have a long way to go, I am extremely lucky to have a wife that is willing to give me a second chance despite how much I’ve hurt her, I really hope you can understand how much of an impossible situation this is to make work, I cannot allow you to see [X] for the foreseeable future. I am so sorry for the pain I’ve caused and I love you.
The Mother alleges that the response from the Father's biological mother (also included in Exhibit M7) was “appalling” and evidence of a pattern of family violence from the Paternal Grandmothers as well as from the Father. That response read:-
I am extremely upset over this I am sorry to hear the trouble you’re going thru, you are saying you’re lucky to have a wife that’s giving you a second chance well what about your family, if she doesn’t want anything to do with us why can’t we see you and [X] and why can’t we see [X]?
The Police relied on the Father's text message as evidence that the Father had committed family violence. The Father has made admissions in relation to this incident.
Also on 30 October 2020, the Father commenced seeing a qualified psychologist, Ms L, following referral from his General Practitioner Dr O for assistance related to "a situational crisis and to develop coping strategies for stress (anger management)". The Father continued seeing Ms L for five sessions, concluding on 15 December 2020, with the Mother also attending a joint session on 4 December 2020. Ms L said (in her affidavit tendered as Exhibit M8) of the Father during this period:-
[Mr Morcom] was polite and engaging throughout treatment. He demonstrated his commitment to treatment and intervention by his consistent attendance and motivation to continue to learn, develop, challenge, and heal for himself. His focus was on his relationship with his wife and related to this his daughter (and his parents).
[Mr Morcom]’s progress was positive and noticeable. [Mr Morcom] was engaged, in an open and transparent manner regarding his circumstances, his mental health issues, his challenges, fears and concerns and areas of vulnerability and improvement.
Ms L was not required for cross-examination, despite the Mother later alleging that she “felt manipulated” in the 4 December 2020 joint session, and left the session because she “did not feel heard or supported”.
In late 2020, the Mother alleges the Father was angry with her because he wanted sex and she did not. The Father denied this.
On 17 February 2021, the Mother alleges the Father forced her to have sex. The Father denied this.
On 6 September 2021, the Mother alleges she woke to find the Father sexually assaulting her. The Father denied this.
In December 2021, the Mother alleges that the Father sexually assaulted her while X was in the room. The Father denies this.
The parents separated under one roof on 1 June 2022.
On 17 June 2022, the Mother alleges that she was reluctant to allow the Father and X to see the Paternal Grandmothers, when the Father unilaterally declared that:-
(a)the Paternal Grandmothers could spend as much time with X as they wanted;
(b)the Mother had no say; and
(c)if she "went against him", she would need to "watch out".
The Mother says she called M Service (a family violence service) after this incident to report the alleged escalation of the Father’s behaviour. The Father acknowledges an argument about whether X could see the Paternal Grandmothers (although he says the argument occurred on 18 June 2022). It was put to the Father by Counsel for the Mother that he “forced” the Mother to see the Paternal Grandmothers. The Father denied this, saying that he took X to see the Paternal Grandmothers as they had not seen X in two years, and the Mother insisted on joining the visit out of a fear that the Paternal Grandmothers would talk about her behind her back.
On 18 June 2022, the Mother says M Service organised crisis accommodation for her and for X for a week, after which the Mother and X stayed with a friend for a further week, before returning to the former matrimonial home. From context, I infer that the Mother unilaterally took X and left. In cross-examination, the Father said of this incident "She left under the false pretences of domestic violence and claiming that I was controlling".
I pause in this chronology to note that, regarding the 18 June 2022 incident of the Mother unilaterally taking X, Counsel for the Mother conceded that she "had left partly because she was upset about [the Father’s] parents". That suggests that the Mother's actions on 18 June 2022 were as much retaliatory as they were driven by safety concerns.
Following separation but before physical separation were a number of incidents alleged by the Mother upon which there was no cross-examination. One incident is as follows. On or around 2 July 2022, the Mother alleges she noticed files being deleted from her laptop, and says that she assumed this was done by the Father. The Mother alleges that this triggered an argument, in response to which the Father unilaterally left with X. The Mother says she called Victoria Police, who declined to take action because there were no parenting orders in effect, and the Father stayed with X at the Paternal Grandmother's house for 3 days. This incident was not put to the Father.
In November 2022, the Mother alleges that the Father sexually assaulted her while she was unconscious from a (self-administered) Panadol overdose. The Father denied this. I discuss this incident in detail below and it is one of the key events referred to under the heading of the November 2022 Overdose and Alleged Rape.
In early December 2022, there was an incident between the parents that I discuss in detail below. In summary, the Mother alleges that the Father attempted to kill her with a hammer, and the Father alleges that he and the Mother had an argument which resulted in her attacking him when he tried to walk away. Both parents called the police, who (with considerable uncertainty) concluded that the Mother was the aggressor (although that conclusion was later reversed on review). Following this incident, Victoria Police applied for an Intervention Order on the Father's behalf, naming the Mother as the respondent. The Mother made a cross-application for an Intervention Order on her own behalf, naming the Father as the respondent. This is one of the key events referred to under the heading of the early December 2022 incident.
On or around 13 December 2022, the parties physically separated and the Mother left the former matrimonial home after cross-Intervention Orders were made in each party's favour by the Magistrates' Court of Victoria. At this time, X was three years old.
From the time of separation under one roof until physical separation on 13 December 2022, the parents had shared the care of X. From 13 December 2022 until 26 December 2022, X was in the Father's care.
In late December 2022, the parents organised for X to spend time with the Mother at J Venue, despite the cross-Intervention Orders. I deal with this incident in detail below, but in summary the Father alleges he gave the Mother a lift back to her accommodation, collecting a parcel along the way, but as they drove, she become aggressive and he pulled over while they had a heightened argument. The Mother alleges the Father coerced her to accept a lift to her accommodation, then began speeding and driving erratically in a murder/ suicide attempt until finally he pulled over. It is agreed that once the car pulled over, other motorists intervened in their argument, and the police were called. This is one of the key events referred to under the heading of the late December 2022 J Venue Incident.
On 26 December 2022, the parents met at the City C Police Station, and through an unclear sequence of events, the Mother left with X. After this, X did not spend any time with the Father until Court orders were made on 14 February 2023.
On 13 January 2023, the Father initiated these proceedings, seeking interim orders for X to live with him and for an urgent Recovery Order, in light of the Mother's refusal to return X to his care.
On 23 January 2023, the matter came before a Judicial Registrar for first return. Orders were made (among other things) for:-
(a)the Mother to surrender X's passport to her lawyer;
(b)X's passport not to be released without either the written consent of both parties, or an order of the Court; and
(c)the appointment of the Independent Children's Lawyer.
On 25 January 2023, the Department of Families, Fairness and Housing (“DFFH”) produced its response to the Notice of Child Abuse, Family Violence or Risk of Family Violence.
On 6 February 2023, the Mother filed a Response to the Father's application, seeking on a final and interim basis sole parental responsibility, X to live with her, and X to spend supervised time with the Father for three hours each alternate weekend. She also sought an order for the Father to seek psychiatric treatment and counselling.
On 14 February 2023, the matter came before a Senior Judicial Registrar, who dismissed the Father's Recovery Order application by consent. Orders were also made for (among other things):-
(a)the preparation of a Child Impact Report;
(b)X's name to be placed on the Airport Watchlist; and
(c)by consent and until further order:-
(i)X live with the Father three days per week and with the Mother four days per week;
(ii)both parents to undergo a psychiatric assessment with Dr B;
(iii)both parents to engage with a treating psychologist and provide that psychologist's details to the Independent Children's Lawyer; and
(iv)both parents to undertake a post-separation parenting program and a Tuning into Kids program (and in the Father's case to undertake an anger management program).
By the 14 February 2023 hearing, the Father had also filed an Amended Application for Final Orders seeking property adjustment.
On 19 February 2023, DFFH provided a further response, which was released to the parties by a Judicial Registrar on 21 February 2023.
On 20 March 2023, the matter came before a Judicial Registrar, and procedural orders were made.
In April 2023, the Mother made a statement to Victoria Police, setting out what she alleged to be the history of family violence in the relationship to that point. The Mother's statement was tendered in full as Exhibit M23.
On 30 May 2023, the Child Impact Report dated 23 May 2023 was released to the parties. In the context of the preparation of that report, X was observed to have a good relationship with each of her parents, with little difference in X's interaction with each parent observed. X was observed to separate easily from each of her parents, with the only concern (by the Father), being that she was adjusting to spending time with her parents in different households.
On 31 May 2023, the matter came before a Judicial Registrar, and orders were made (among other things) transferring the proceedings to the Ballarat Circuit List. Also, by consent, orders were made for the Mother's psychologist, Ms N, to prepare and file a report on the Mother's attendance, progress and diagnosis (if any).
On 28 June 2023, the matter came before a Senior Judicial Registrar, and procedural and property-related orders were made. A spousal maintenance application by the Mother was also adjourned at that time to August 2023.
On 30 August 2023, the matter came before a Senior Judicial Registrar, and final property orders were made by consent, pursuant to which the Mother received payments of $149,500 with respect to property adjustment, and $10,000 as capitalised spousal maintenance. Those sums have been paid. Orders were also made by consent in the parenting proceedings for the matter to be listed for a Compliance and Readiness Hearing.
On 11 December 2023, the matter came before me for Compliance and Readiness Hearing, and the matter was listed for final hearing commencing 30 July 2024. An order was also made for a Family Report to be prepared, and DFFH was requested to file a further report.
In early 2024, the initial criminal proceedings against the Father regarding the late 2020 incident finalised. As noted above, the Father entered a plea of guilty to one charge of common assault. Initially, a conviction was recorded and the Father received a community corrections order. He subsequently appealed, and the conviction was struck out with the Father instead placed on a good behaviour bond.
After the conclusion of the Father's criminal proceedings, the Father alleges that X began making disclosures to him such as "mum scary", "want to stay with you Daddy" and "don't want to go to Mum". These disclosures were not raised with the Mother in cross-examination, nor was it put to the Father in cross-examination that he had fabricated them.
On 23 April 2024, the Family Report dated 19 April 2024 by Ms P ("the Family Report Writer") was released to the parties. I discuss the Family Report in more detail later, but in summary the Family Report Writer observed X to have a close relationship with each parent.
On 17 May 2024, the Mother's solicitors filed a Notice of Ceasing to Act. At various times throughout the final hearing, Counsel for the Father and Counsel for the Independent Children's Lawyer emphasised that the Mother has been represented by a number of legal firms in these proceedings, with an implication of some unspecified wrong-doing on the Mother's part. I have not been told, nor have I enquired as to, the reasons for those changes in legal representation, and I have not drawn any inference from changes in legal representation in making my decision in this matter. To make any such inference would require that I attempt to look behind the veil of legal privilege, which I will not do. Likewise, drawing an adverse inference would mean allowing Counsel for the Father and for the Independent Children's Lawyer to engage in trial by innuendo.
On 30 May 2024, the matter came before me, as the Mother was no longer legally represented. The Father's previous criminal charges, his guilty plea to a charge of common assault upon the Mother, and the existence of final Intervention Orders with respect to each parent as affected family member and respondent respectively, meant that the provisions of section 102NA of the Act applied on a mandatory basis, prohibiting the Mother from cross-examining the Father in person. I made a notation to that effect, enabling the Mother to seek a funding via Victoria Legal Aid pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The matter otherwise remained listed for final hearing commencing 30 July 2024.
On 30 July 2024, the matter came before me, and was adjourned for mention to 2 August 2024, as Counsel for the Mother needed to seek advice on a potential ethical conflict. I have not been told, nor have I enquired, as to the nature of that conflict. I have not drawn any inferences about that conflict, and it has not formed any part of my consideration for this decision.
On 2 August 2024, the matter came before me and was adjourned for further mention to 7 August 2024.
On 7 August 2024, the matter came before me via Microsoft Teams, and orders were made for:-
(a)the matter to be re-listed for final hearing commencing 16 December 2024; and
(b)by consent, the parents to do all such acts and things needed for X to be enrolled at H School for the 2025 school year.
On 16 December 2024, the matter came before me for final hearing, listed for five days. At the close of evidence on the fifth day of trial, it became clear there was not sufficient time for closing addresses. Accordingly, the final hearing was adjourned part-heard to the first available date in the new year (being 13 January 2025), with directions that the parties and their legal practitioners attend via video link. Relevantly, on that day, X was in the Mother's care.
On 13 January 2025, shortly after the Independent Children's Lawyer began her closing address (her Counsel being unavailable due to illness), the Mother left the video call. Closing addresses were paused but Court remained in session while Counsel for the Mother endeavoured to contact her client. Counsel for the Mother was unable to do so, and Court adjourned while further efforts to contact the Mother were made. I indicated to Counsel for the Mother that if her client could not be contacted, the matter would need to proceed in person the following day, and at a minimum I would need to order that X be brought to the Court and placed in the Court's child-minding centre pending any orders made following closing addresses. Eventually, the Mother rejoined the video link, but refused to turn on her camera, despite being directed to do so.
Where a hearing proceeds via video link, I consider it essential that I be able to see the parties. Partly, this serves an evidentiary purpose, enabling me to see the parties' reactions to submissions and evidence. However, and saliently for this case, it also enables me to assure myself that any subject children are not present during the hearing. The Mother's refusal to turn on her camera on a day when X was in her care therefore impeded my ability to ensure Court rules were being properly observed. As a result, I made orders that the matter proceed in person in Melbourne the very next day. I gave leave to the Father to appear via Microsoft Teams as he resides in City C and he had been compliant with directions for his camera to remain on.
At the same time, I considered it necessary to take steps to ensure X's safety. I will discuss my assessment of the parties in greater detail below, but in summary the circumstances of the case, suggested a possibility of physical as well as psychological risks to X, as the Mother had presented as very unwell. I was concerned that upon the Mother hearing the final addresses, particularly the final position of the Independent Children's Lawyer, that she would be naturally heightened, distressed and aggrieved by what for her would be an incomprehensible result. I made orders that:-
(a)X be placed into the Father's care; and
(b)all previous orders regarding X living with the Mother be suspended.
I indicated that a failure to deliver X to the Father would likely result in a Recovery Order issuing. Shortly after 4.00pm that day, my Chambers was advised by the Father’s solicitor that X was delivered to the Father pursuant to and in compliance with my orders.
On 14 January 2025, final addresses were delivered, and judgment was reserved. I made interim orders that:-
(a)my orders of 13 January 2025 remained in full force and effect;
(b)until further order, neither parent could disclose any events of the proceedings to X; and
(c)X spend time with the Mother at H School in the morning shortly before X's first day of school.
I considered that it was important to make orders regarding the first day of school as 2025 is X's first year attending primary school, and the first school day is a unique and special milestone for children. I considered it in X's best interests for the Mother to be part of X's first day of school if that could be done safely, and I formed a view that the attendance of the Father and the public nature of the event would ensure that safety. If it proves to be the case that X's relationship with the Mother can be maintained, the Mother being part of key milestones as such the first day of school will be critical to the health of that relationship.
On 22 January 2025, I listed the matter urgently on the Court's own motion for a mention the next day (23 January 2025). At that mention, I discussed further arrangements with the legal representatives of all parties to ensure the success of X's first day of school. Specifically, I was concerned that if the first day of school was also the first time X had seen the Mother since being placed in the Father's care, that might be overwhelming and/or distressing for X. I made orders for X to spend supervised time with the Mother on the weekend before the first day of school. The first day of school is a significant and formative event for a child of X's age such as to warrant this approach. The Father and the Independent Children's Lawyer agreed to the orders I proposed to make. The Mother was unwilling to agree to the orders I proposed, on the basis that she maintains a position that supervision is unnecessary. My orders were therefore made as orders of the Court, rather than by consent.
As at the time of preparing these reasons, the parents are yet to divorce. There is no suggestion of a resumption of their relationship.
THE HEARING
The Father relied on his own affidavit and evidence, and was cross-examined.
The Mother relied on her own affidavit and evidence, and was cross-examined. She also relied on:-
(a)the affidavit and evidence of Ms E, who was cross-examined; and
(b)the affidavit of Ms Q, who was not required for cross-examination.
The Independent Children's Lawyer relied on:-
(a)the psychiatric assessments of each party by Dr B, who was cross-examined;
(b)the Family Report of Ms P, who was cross-examined;
(c)the affidavit of Ms L, who was not required for cross-examination; and
(d)the Child Impact Report of Mr R, who was not required for cross-examination.
Also in evidence were the various exhibits tendered (to which I refer where relevant), and the following reports provided directly to the Court:-
(a)the 16 January 2023 response from DFFH to a Notice of Risk;
(b)the 25 January 2023 response from DFFH pursuant to a section 67Z order;
(c)the 19 February 2023 response from DFFH pursuant to a section 67Z order; and
(d)the 3 June 2024 response from DFFH pursuant to a section 69ZW order.
THE WITNESSES
The Father, Mr Morcom
The Father impressed as an honest witness with good recall. He was appropriately distressed when discussing the conflict between the Mother and the Paternal Grandmothers, and his response impressed as authentic. I give more detail for my reasons for accepting the Father’s account below, regarding my findings of fact.
The Mother, Ms Morcom
The Mother’s evidence was confusing and difficult to follow. She impressed as a person in a heightened emotional state and was convincing in her depiction of herself as a victim of family violence. Yet, her presentation had a theatrical quality to it. Notwithstanding Dr B’s assessment, if has been difficult to assess where the Mother’s evidence crosses the line between truth and fantasy. Undoubtedly, the Mother has been the victim of family violence at the hands of the Father. The Father concedes this. This unfortunate and appalling experience by the Mother has led her to imbue hers and X’s experiences with a false narrative of murderous intention on the part of the Father, which I have found unlikely. I give more detail for my reasons for rejecting much of the Mother’s account below, regarding my findings of fact.
Ms E, Psychotherapist
Ms E describes herself as a psychotherapist, and provided an affidavit in support of the Mother. Ms E's affidavit did not annex a curriculum vitae, however in oral evidence Ms E stated that she holds tertiary qualifications in education and social sciences counselling. Ms E does not hold any qualifications as a psychologist or psychiatrist. From the start of her evidence, Ms E was clear and upfront in identifying the difference in her role as opposed to the role of a psychologist or psychiatrist. I do not consider Ms E an expert witness in psychological or psychiatric matters, but I recognise that she has relevant qualifications for counselling work.
Ms E tried to tell the truth. She was an honest witness with regards to what had transpired in sessions between her and the Mother. There were times when Ms E's memory appeared to be at odds with portions of documentation, but she accepted that when it was put to her by Counsel for the Father, and Ms E deferred to her documentation, which was appropriate.
Throughout her evidence, it was clear that Ms E took the Mother's account of events to be truthful.
Ms E’s Affidavit
Ms E's affidavit was filed on 13 December 2024, and annexed three letters in support of the Mother, dated 19 December 2022, 20 January 2023, and 12 December 2024 respectively.
Ms E’s 19 December 2022 Letter
In her 19 December 2022 letter, Ms E said:-
To whom it may concern,
I am writing this letter to support [Ms Morcom] in her application for current court proceedings.
I first saw [Ms Morcom] on 07/09/2022 after a request from her husband for couples counselling. I saw them individually and referred [Mr Morcom] to [Mr S] who specializes in men’s behaviour change, and anger issues. I have seen [Ms Morcom] for 7 x 1 hourly sessions. The last one being 08/12/22, with a further session booked.
During the sessions with [Ms Morcom] factors identified as significant by both, included [Mr Morcom]’s controlling behaviours and anger issues.
[Ms Morcom] is linked in with [D Service] [sic] and [T Service]. I have spoken with her case worker, [Mr U], at [D Service] who believes it is too dangerous for [Ms Morcom] to engage in Couples Therapy with [Mr Morcom].
Ms E's 19 December 2022 letter then lists at a general level types of family violence the Mother identified the Father as having committed in the relationship. Some of those are recognised categories of family violence, including "Using physical abuse" and "Using isolations" (although many of the allegations lack specificity). Other headings of alleged family violence in that letter are "Using male privilege". Asserting a category of violence such as "Using male privilege" is necessarily a conclusion of who perpetrates family violence in a particular situation, and which categories of persons are even capable of engaging in that form of violence. While a Court must be aware of the gendered social structures to affect the manifestation and consequences of family violence, the Court cannot extend that awareness into a presumption of the facts of alleged family violence in any particular case.
The 19 December 2022 letter records that on 17 September 2022, the Mother gave Ms E a 27 page chronology of alleged family violence perpetrated by the Father, which included "Repeatedly coercing [Ms Morcom] to have sex when she did not want to" and "Raping [Ms Morcom] on 3 occasions when she had clearly asked him to stop touching her". That timing is significant, because the Mother alleged at trial that she had again been raped by the Father in November 2022, and a key part of Counsel for the Father's challenge to that allegation was that it appeared only to emerge in February 2023 when the Mother was preparing an affidavit for proceedings in this Court. It is evident that the Mother made a prior complaint to Ms E.
Ms E did not attach the chronology, but summarised it, with events said to start in 2017 with pushing and dictating what the Mother wore to events. Broadly, I would characterise the events described as a narrative of escalating coercive control. Specific rape allegations are made for 17 February 2021, 6 September 2021, and an unknown date in December 2021 (when X was said to be in the room at the time). The narrative contains numerous allegations of the Father attempting to undermine the Mother's psychological health and self-confidence by repeatedly telling her she was mentally ill and threatening to say the same to others.
Ms E summarised her counselling interventions in response to the Mother's alleged experiences of family violence by saying:-
[Ms Morcom] has discussed her desire to get away from the family home, into her own accommodation and the challenges in doing so in the current rental climate. We have discussed her need to feel safe and to provide a safe and stable home. [Ms Morcom] has demonstrated a knowledge and understanding of [X] and age-appropriate details for her care. She has consistently worked, in the face of extremely difficult situations, to act in the best interest of [X].
…
She has consistently worked I the face of extremely challenging living arrangements, to act in the best interest of [X]. [Ms Morcom] is aware that her own mental health is threatened the longer she stays in this environment and has sought counselling to address issues as they arise.
[Ms Morcom] states that [Mr Morcom] is not acting in the [sic] [X]’s best interests and is very concerned for her own welfare as his anger escalates, his behaviour becomes more threatening and he consistently demonstrates that he puts his own interests and behaviour before them.
Ms E accepted the Mother's narrative as correct, and provided counselling on that basis. Accepting the Mother's account is appropriate in a counselling relationship, although the Court must reach its own conclusions regarding the family violence allegations.
Towards the end of the letter, Ms E recounted a specific session in greater detail. I set that passage out in full, as it has bearing on a key factual dispute in these proceedings:-
[In] December [contextually, 2022] [Ms Morcom] attended a session in a distressed state, telling me that she and [Mr Morcom] had an argument the day after she refused to give him the password for her phone. She refused and he locked her in a closet for app [sic] 3 hours and threatened her with a hammer. He denied her food, her medicine (she had medicine for a cough) and drink. He said she was ‘crazy’ and mentally ‘unstable’ and the he ‘needed her to die’ so he could have custody of [X]. She said she feared for her life. She reported that [X] was present and hitting [Mr Morcom]’s leg trying to get him to let [Ms Morcom] out of the closet.
[X] was crying and wanted something to eat and [Mr Morcom] denied her food saying it was [Ms Morcom]’s fault because she refused to give him her password. She said he tried to strangle her and held his fingers over her nose so she couldn’t breathe.
At one point he pushed her head to the floor holding her head down and she thought he was going to break her skull.
Attempted to hammer her fingers.
She finally got her phone and called 000. When the police came [Mr Morcom] told them she was mentally unstable and had tried to commit suicide and they told him to take [X] and took [Ms Morcom] to the Police station. They took an IVO against her.
Throughout the trial, the Mother deployed the language of family violence theory. Many of her answers were repetitively prefaced with phrases like "as a victim-survivor", and she made reference to wider patterns of family violence to suggest that women are never (or rarely) believed by institutions, with an implication that the mere fact of gender should warrant the Court automatically believing her narrative and dismissing the Father's. Relatedly, I note that the letters of support from Ms E likewise included a reference to the statistics of family violence related murders.
I am not critical of the Mother for seeking to understand family violence dynamics, nor for her being worried as to lethality risks. If I had accepted her narrative of family violence by the Father, it would certainly have pointed to a large number of 'red flag' factors suggesting an elevated risk of lethality. The Court does not expect litigants to keep themselves isolated from information or supports to assist with family violence. Likewise, this Court does not sit in moral judgment of litigants, but instead assesses the risks (if any) litigants may pose to subject children. The reason the Mother's use of key phrases from family violence literature is relevant is because it indicates that she is a person who is not only wholly lacking in insight into her own behaviour, but who is equipped with language and frameworks to seek to use systems and support people around her to accept her narrative and treat the Father as the perpetrator (and the sole perpetrator) of extraordinary, if not bizarre, family violence allegations requiring direct and immediate intervention to protect X. I consider that the Mother's history of service shopping (which I find has occurred) also demonstrates that she is highly motivated to engage in this manipulation.
While issues of systems abuse occupied part of the trial, I also note that the Father has alleged the Mother engaged in constant coercive control and emotional abuse throughout the pre-separation relationship. He has alleged a long-term campaign by the Mother to isolate him and X from the Paternal Grandmothers. He also spoke during cross-examination about being constantly told by the Mother that he was an abuser and that there was something wrong with him (by implication, psychologically). Those are features of coercive control, and I find that the Mother displayed a long-term pattern of coercive control towards the Father, although I am not in a position to determine whether the Mother did so deliberately or with any insight into what she was doing.
X’s Safety
Three immediate risks emerge from my family violence findings for X's emotional and psychological safety:-
(a)a risk of X being caught in on-going irreconcilable parental disputes and mistrust;
(b)a risk that the Mother will alienate X from the Father; and
(c)a risk that the Mother will instil a false narrative in X whereby X comes to believe she has been physically (and possibly sexually) abused when she has not.
These risks are well-understood by the Court, and arise regularly in family law matters. It is uncontroversial that children caught in the middle of parental disputes are prone to becoming 'parentified', being forced to be the go-between and placed under high levels of pressure and stress, affecting their emotional regulation and ability to establish and maintain safe, stable, and fulfilling relationships of their own in later life. Likewise, it is uncontroversial that the creation of a false narrative of abuse can have comparable impacts if the child comes to believe the false narrative of abuse they have suffered.
These three immediate risks mean that, in my view, X would be at an unacceptable risk of harm in the Mother's care, at least as the Mother is now. Managing these three immediate risks to X's safety therefore necessitates that she live with the Father, and that the Father have sole parental responsibility for X. In reaching that conclusion, I recognise that the Mother will be severely distressed by my decision, and X's relationship with the Mother will likely be placed at risk, both because her time with the Mother will be greatly reduced by the orders I make, and because the Mother has at times expressed to experts that she may refuse to engage with the Father even at the cost of not seeing X. If that were to eventuate, it would risk the same alienation impacts discussed above, only this time for alienation from the Mother.
I have reached a conclusion that I can and should make final orders regarding where X should live and who should have parental responsibility for X, but that I cannot at this time make final orders regarding the time X should spend with the Mother. In short it is because the Mother's mental health, any diagnosis, and her likely prognosis require further investigation. Depending on the outcome of that further investigation, I am concerned that there may be a real chance of additional risks to X that must be managed - not just from the parental conflict, but from the Mother's psychological state even if the parental conflict were fully put to bed. Accordingly, in my orders for further investigation of the Mother's mental health, I will ask for discussion by the relevant experts not just of what diagnosis (if any) is appropriate, but also what emotional and psychosocial risks that condition (if diagnosed) would pose to X in the Mother's care, both if the condition were well-managed and if it were not well-managed. In particular, I will ask for information regarding:-
(a)any potential risk of parentification;
(b)any potential risk of exposure to self-harm or suicidal behaviours or ideation;
(c)whether any risk of suicidal behaviours (if present) may create a risk of serious physical harm or injury to X;
(d)any potential risk of co-dependency and/or excessive emotional enmeshment;
(e)any potential risk of physical, emotional or verbal abuse;
(f)any potential risk of sudden (and, from X's perspective, inexplicable) rejection of X for perceived slights, misbehaviour or imperfections;
(g)what impacts any or all of those risks would have on X if they eventuated; and
(h)what management strategies are possible for those risks and the likelihood of those strategies being effective.
I will seek that information because I have formed the view that the Mother is unwell. Therefore, the risks to X are not just about managing the parental conflict as it exists right now, but also about managing the impact and any potential burden to X if she were to commence spending substantial time in the Mother's care at a future point, especially if X came to feel that she needed to manage the Mother's emotional and psychological state. I am hopeful that there will prove to be viable methods available to enable X to be spend significant time in the Mother's care, and to restore the relationship between X and the Mother that will be necessarily interrupted by the orders I shall make. However, I am cognisant that there may be on-going risks if X is placed in a situation of effectively having to manage the Mother's mental health for her. I cannot currently evaluate those risks, or know if they are likely to be relevant, which is why I will only make interim orders for time at the moment, pending further investigation and expert reports.
I should note a further possibility, regarding possible diagnoses of the Mother, although I consider it a relatively remote chance. It is possible that further psychiatric evaluation will suggest the Mother does not in fact suffer from a psychiatric condition at all. If that occurs, it may suggest that the Mother poses a permanent risk to X's safety, because a 'clean bill of health' would likely indicate the Mother engaged in her violence and false narrative knowingly and calculatedly. It would indicate that, for whatever motivation, the Mother had deliberately peddled a false narrative of extraordinary violence by the Father, and deliberately committed family violence against both the Father and X. Treatment would not be an appropriate course of action in such circumstances, because there would be nothing to treat save malice.
The safety of X’s carers
Since I have rejected the Mother's narrative of family violence, and I propose to place X with the Father, there are few if any evident risks or threats to the physical safety of either parent, although I am concerned about the potential for the Mother to relapse into what I have found to be prior self-harm behaviours. In that sense, the greatest threat to the Mother's physical safety may be the Mother herself. However, I do not have powers to make orders to address that risk other than by ordering in the interim that time between X and the Mother should be supervised, so that if the Mother is struggling to self-regulate X can still be protected.
While I am not aware of any alleged risks for the Father's physical safety, there is a material risk to the Father's emotional and psychological safety if the Mother continues to make what I have found to be false reports to Child Protection and to the Police. My concerns on that front are reinforced by the incident on 26 December 2022, where the Father reports being pressured into allowing the Mother to take X by someone thought by him to have been the Mother's counsellor and determined by the Independent Children's Lawyer to have been a social worker. If it is the case that the Mother was able to persuade a social worker to intervene in such a manner, that would demonstrate that the Mother is capable of persuading persons with at least perceived societal authority (if not actual lawful authority) to accept her claims and take decisive action on her behalf. If such efforts continue, they will likely cause the Father considerable on-going stress and distress, and thus constitute a risk to his emotional and psychological safety. To protect the Father from that risk, I propose to make orders that will enable these reasons to be provided to relevant authorities and treating professionals. That will assist the Father in demonstrating (should it be necessary) what the Court-ordered care arrangements for X are, and why those orders were made.
Any views expressed by X (section 60CC(2)(b))
X is very young, and I do not consider her views can carry significant weight in this matter. The Family Report Writer also did not state whether X had expressed any particular wishes, stating that X was too young to do so. The Family Report Writer observed X to transition easily between the parents, and therefore it does not appear that X is opposed to time with either parent. For completeness, I note that as I read the Family Report, it appears that X had a warmer interaction with the Mother, but I accept the Family Report Writer's view that nothing of concern was evident during observations with the Father. The earlier Child Impact Report in this case likewise did not indicate X having expressed any views in this matter, and noted X seemed to be confused as to why her parents were no longer together, which was appropriate for her then three years of age.
X’s development, psychological, emotional and cultural needs (section 60CC(2)(c))
I have already addressed many of these factors under the heading of safety above, as emotional and psychological harms are the most clearcut and immediate safety risks for X.
The Family Report Writer and the Child Impact Report Writer stressed the need for stability and regularity for X. X needs a stable environment because she is in the process of transitioning to school. That is a very demanding time for any child and carries particular opportunities for additional stress.
The need for stability therefore pulls in several directions. First, X has spent the majority of her time with her Mother, spending four days per week with the Mother since the 14 February 2023 consent orders were made (two years ago). It will be a serious dislocation to X for her connection to the Mother to be disrupted and time significantly reduced.
Second, stability includes emotional stability in X's psychosocial environment. I currently have serious concerns about the Mother's ability to provide an emotionally stable environment for X, even if she were able to put her feelings towards the Father to one side. The Mother presented as volatile, obsessive, and vengeful. Without significant improvement in the Mother's presentation, I would be concerned for the Mother's ability to provide the emotionally stable environment needed to foster X's development.
Third, stability for X requires stability for her parents. Both X and her parents would, all else being equal, benefit from an efficient finalisation of these proceedings. However, if I were to make final orders on all matters and conclude the proceedings, it is likely I could only do so by ordering that X spend little or no time with the Mother. I assess the Mother on the evidence before me, and currently there are unresolved risks for X in the Mother's unsupervised care. Any pathway for an increase in spend time would rely on speculation as to possible diagnoses and treatments for the Mother, but orders for supervised time in perpetuity would be unsustainable both because of limits in the availability of supervision services and because such visits would tantalise X with the possibility of a relationship with her Mother. However, cutting off the Mother entirely does not appear to be in X's best interests where there is still uncertainty regarding the Mother's diagnosis, prognosis, and options for treatment. It may well be the case that there is a pathway towards a stable and healthy relationship between X and the Mother, but further information is required in order to assess that question.
Parental capacity (section 60CC(2)(d))
I have addressed this issue throughout. Plainly, it looms large over the entire proceedings, and I have assigned it considerable weight.
The benefit to X from maintaining relationships with her parents, and other significant people (section 60CC(2)(e))
I have addressed this issue throughout these reasons.
Any other relevant matters in the particular circumstances (section 60CC(2)(f))
Final versus Interim Orders
Unlike previous versions of the Act, the mandatory considerations set out at section 60CC(2) no longer include a discussion of the value of making orders least likely to lead to further proceedings. However, as I noted above in discussing the importance of stability for X, framing orders so as to ensure the finality of proceedings will still often be in a child's best interests. I have reached a conclusion that this is a rare case in which finalising the proceedings now would not be in X's best interests.
As noted above, I have made a series of findings that are adverse to the Mother. On the basis of those findings, it is in X's best interests that she live with the Father. In X's circumstances it would be impossible for the parents to share decision-making responsibilities about major long-term issues for X, and consult with each other as is contemplated by sections 61CA and 61DAA of the Act. Given X will live with the Father moving forward, it is appropriate (and perhaps inevitable) that decision-making responsibility should be allocated to him. To do anything else would likely hinder important decisions which will need to be made, especially in relation to X's medical needs, in circumstances where she appears to have some special needs (although at the conclusion of the trial it is still unclear to me exactly what those special needs might be). It is appropriate and necessary for the ability of X's ongoing care that there be final orders on those two matters.
I am not of the opinion that the arrangements for X to spend time with her Mother can be finalised at this point. This is an unusual position to adopt, but it has not been until the issues in the case have been fully ventilated that I can now conclude that it is likely that the Mother is ill with disturbed thought processes. I cannot determine what the nature of the Mother's illness might be and therefore I cannot determine how her illness might be treated. Dr B surmised that if negative findings were made against the Mother then she might be suffering from a mental health condition (as opposed to his diagnosis of an adjustment disorder during his initial psychiatric report on the Mother). Although I am aware that (if diagnosed) the mental health condition is difficult to treat, likely requiring medium term psychological or psychiatric interventions (the Family Report Writer suggested a two year period of treatment would likely be needed), there is no formal diagnosis of the Mother, and nor could there have been until evidentiary findings were made. Without a diagnosis and/or further assessment, it is also impossible to ascertain what is the precise nature of the Mother's illness and how she might react to treatment and assistance and even whether or not she will access assistance. Nor can I assess whether the Mother can quickly reach a point where she is capable of shielding X from her view that the Father is a danger to both her and X, and thus be capable of shielding her from emotional and psychological harm. When I consider those matters in the context of the arrangements I shall order, which on any view:-
(a)will result in a massive change of circumstances for X, who had been in a long-term shared care arrangement with each of her parents both before and after the parents' separation;
(b)will necessarily cause emotional and possibly psychological harm to X due to the immediate loss of expansive time with the Mother;
(c)will be inadequate to maintain a fulsome ongoing relationship with the Mother;
(d)are unlikely to meet X's desire to maintain a relationship with the Mother (which was not seriously contested at trial, albeit that desire is to be inferred from assessments of X rather than taken from her expressed views); and
(e)are likely to be unsustainable in the longer term.
I have concluded that it is in X's best interest that interim orders be put in place to be able to monitor and assess how final orders for time should look after a further assessment by Dr B with the benefit of my findings. Whether the final orders will result in more time between X and the Mother, the same time, or even a reduction or cessation of time remains to be seen, but in my view continuing judicial oversight (and continuing involvement of the Independent Children's Lawyer) will help ensure that X's best interests are served. On the current state of that evidence, and noting that X is currently only five years old, this is the best result available for X.
In my view, an optimal result for X would see her moving between her parents' households freely while not being exposed to the Mother's false narrative surrounding the Father and X's relationship with him, or any other psychologically and emotionally harmful behaviours. I hope that can be achieved, particularly because in all other respects the Mother has much to offer X. The Mother is smart, articulate, theatrical, artistic and immersed in a world of imaginative play and fashion. She is physically very attractive. She loves and adores X. Although not ventilated in detail during the proceedings, she has a cultural background that she would ideally be able to share with X. She is the only Mother X will ever have. This loss for X will be huge.
An interim order is not without its downsides. The Father is funding his case personally and there is a direct financial imposition upon him. He may ultimately appear as a self-represented litigant, and so I will make a notation that (in light of the family violence discussed above) the mandatory provisions of section 102NA apply prohibiting direct cross-examination of each parent by the other. The Mother already has the benefit of funding through the Commonwealth Cross-examination Scheme, which will continue at any future final hearing. The Independent Children's Lawyer will continue in her role, funded by Victoria Legal Aid.
An interim result may seem at odds with the need to provide X stability as part of her developmental needs (as discussed above regarding section 60CC(2)(c) of the Act), and the overarching purpose of the Act expressed at section 95(1)(d) as being to facilitate the just resolution of disputes (among other things) as quickly, inexpensively and efficiently as possible, which purpose is reinforced by the objective expressed at section 95(2)(d) that the Court dispose of all such proceedings in a timely manner. Nevertheless, these considerations cannot dictate against my assessment that the imposition of interim orders for time between X and the Mother is in X's best interests in the longer term. I also take into consider as an aside that the final orders proposed by the Father and the Independent Children's Lawyer, in my view, would likely result in further litigation sooner rather than later, and therefore the downsides of declining to finalise the proceedings would then be incurred at that time in any event.
DISCUSSION
Although Ms P and Dr B were reticent to attribute a physical risk to X in the Mother's care (and in the case of Dr B, he thought that further psychiatric evaluation was warranted in the event of adverse findings against the Mother), I have formed the view that a more cautious approach is warranted to protect X's safety, even in the physical sense. The Mother holds an unshakeable view that she and X have been the victim of extreme and serious family violence. I am cautious about calling the Mother's views delusional given the opinions of Dr B, but her allegations are so serious and so unlikely that I have formed the view that she lives in some sort of fantasy narrative, which suits her agenda. For the reasons I have set out, I am of the view that the Mother's more extreme allegations are fallacious. I acknowledge that she has been the victim of family violence at a different but less serious level.
The likely effect of this state of mind on the part of the Mother is, in my view, twofold. First, there is the ongoing psychological risk to X acknowledged by Ms P and Dr B, namely that X will continue to be exposed to assessment and treatment following ongoing complaints by the Mother to agencies regarding the Father's behaviour.
The second aspect of the Mother's presentation which is of concern is my assessment of her as a person who is self-centred, self-absorbed, and who lacks empathy. She attempts to recruit X into her false narrative, which has a theatrical quality about it, as I have described. To date, the Mother has complied with the orders for X to spend time with the Father even though she has held her views throughout. That is to her credit. Nevertheless, my concern at the conclusion of the trial was that the Mother was faced with obvious ongoing rejection of her narrative by both the Independent Children's Lawyer and the Court. Faced with those challenges. I was concerned that the Mother, who is intelligent, would need some time to process the outcome and for Dr B to assess her reaction to it. It is for those reasons that I made interim orders at the conclusion of the hearing for supervised time, and will make the orders set out above for supervision to continue pending further assessment.
As I said in my introductory comments and I will reiterate here, if the Mother has an underlying psychiatric or psychological condition requiring treatment it will not necessarily be required for the Mother to be "cured" of such condition in order for X to spend more expansive and regular time with her (if in fact it is possible for anyone to be "cured" of such conditions). Rather, there will need to be ongoing assessment as to what, if any, aspect of the Mother's presentations pose an ongoing risk to X in an emotional (and possibly a physical) sense. For instance, it may not be possible for the Mother to be disabused of her subjective truth of the Father's actions, but it may be possible for her to be educated about and develop insight into why X should not be recruited into the Mother's view of her truth and why efforts at recruitment are detrimental to X's well-being. It is for this reason that further and ongoing assessment and court oversight is necessary.
CONCLUSION
Therefore, for the reasons above, I will make the orders set out at the start of this judgment. I am satisfied they are in X's best interests, and I am satisfied that I have the power to make those orders.
I certify that the preceding three hundred and fifty-eight (358) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 28 April 2025
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