Pauley & Raleigh (No 2)
[2025] FedCFamC2F 593
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pauley & Raleigh (No 2) [2025] FedCFamC2F 593
File number(s): CRC 166 of 2023 Judgment of: JUDGE CARTY Date of judgment: 9 May 2025 Catchwords: FAMILY LAW – PARENTING – Allocation of decision making for major long term issues – LIVE WITH – SPEND TIME WITH – Two children 12 years and 10 years of age – Consideration of what orders will promote the safety of the children – Consideration of the children’s views – Consideration of the capacity of each parent to meet the children’s needs – Impact on the children of the mother’s overvalued beliefs and emotionally driven behaviour – Capacity of the mother to provide for the emotional needs of the children – Consideration of the benefit to each child of having a relationship with each of their parents – Children’s ages and stage of development – Benefits to the children of being able to have more regular and natural interactions with mother than possible in a supervised setting – Consideration of the impact on the children of long term supervision of their time and communication with mother – Restraints – Orders for International travel and passports.
FAMILY LAW – COSTS APPLICATION – Where there are circumstances which justify the court making an order that each parent pays a proportion of the costs of the Independent Children’s Lawyer – Costs order made in a fixed amount with time to pay
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CE, 60CG, 61CA, 61D, 61DAA, 64B, 65AA, 65D, 67ZA, 117, Part VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule. 7.03
Cases cited: Fitzgerald v Fish [2005] FamCA 158
Isles & Nelissen [2022] FedCFamC1A 97
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 at [24]; (2015) FLC 93-664
Pauley & Raleigh [2024] FedCFamC2F 286
R & C [1993] FamCA 62
Division: Division 2 Family Law Number of paragraphs: 301 Date of last submission/s: 4 March 2025 Date of hearing: 23 – 26 September 2024 & 18 – 20 November 2024 Place: Coffs Harbour Counsel for the Applicant: Ms Conte-Mills Solicitor for the Applicant: Paladin Lawyers Counsel for the Respondent: Ms Decle Solicitor for the Respondent: Park Avenue Family Law Counsel for the Independent Children's Lawyer: Ms Beckett Solicitor for the Independent Children's Lawyer: Legal Aid NSW City MM ORDERS
CRC 166 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAULEY
Applicant
AND: MR RALEIGH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Allocation of responsibility for making decisions about major long-term issues
2.The father have sole responsibility for making decisions about all major long-term issues in relation to the children X born in 2012 and Y born in 2015 (collectively “the children”)
Information exchange and Authorities
3.The father will inform the mother in writing of:
3.1Any major long-term decision he makes in relation to the children within 7 days of making the decision.
3.2The name and contact details for any school in which the children are enrolled, within 7 days of a new enrolment.
3.3The name and contact details for any medical, dental or allied health practitioner upon whom the children attend from time to time, within 48 hours of the first attendance with the practitioner.
4.If either child sustains a significant injury or illness which requires hospitalisation, the parent with the care of the child at the relevant time must immediately inform the other parent by telephone and provide full details including the nature of the injury or illness and the contact details for the relevant hospital.
5.These Orders are sufficient authority for any school in which the children or either child is enrolled, and for any medical, dental or allied health professional who provides assessment or treatment for the children or either child, to provide each parent with information they request about the children or the child, which is lawfully able to be provided to a parent.
6.Subject to any lawful direction of school staff, and subject to the mother’s compliance with Orders 18.1, 18.2, 18.3, 18.4 and 18.5 hereto, each parent is at liberty to attend the children’s school to participate in any event or activity to which parents are ordinarily invited.
7.The parents will communicate with each other in writing about matters concerning the children, unless in an emergency when communication will be by telephone.
8.Each parent is at liberty to provide a copy of these Orders to the following entities:
8.1Any school in which either child is enrolled.
8.2Any medical, dental or allied health practitioner upon whom either child attends.
8.3Any mental health professional upon whom either child or either of the parents attends.
9.The mother is at liberty to provide a copy of the Single-Expert Family Report prepared by Dr HH dated 22 November 2023 and the Psychiatric Court Report prepared by Dr JJ dated 17 May 2024 to any mental health practitioner upon whom the mother attends for assessment or treatment.
Live with arrangements
10.The children live with the father.
Injunction for the personal protection of the children
11.Pursuant to s.68B of the Family Law Act 1975 (Cth) for the personal protection of the children, the applicant mother Ms Pauley is hereby restrained by injunction from causing or permitting the children to be brought into contact with Mr KK born in 1974 and from causing or permitting the children to have any communication with the said Mr KK.
Spend time arrangements for the children with the mother
12.Each parent will do all acts and things required to facilitate the children spending time with the mother at all times agreed between the parents in writing, and failing agreement:
12.1Commencing on Friday 23 May 2025, during school terms each alternate weekend from the conclusion of school on Friday (or 3.00pm if a non-school day) until the commencement of school the following Monday (or 9.00am if a non-school day), extended to the commencement of school on Tuesday if a long weekend.
12.2During school holiday periods:
12.2.1At the end of Terms 1, 2 and 3, from 3.00pm on the middle Saturday of the school holiday period until 3.00pm on the last Saturday of the school holiday period; and
12.2.2At the end of Term 4 for one continuous block period of three weeks with time to be agreed between the parents and failing agreement:
12.2.2.1For the first three weeks during the Term 4 school holiday period which commences in an even numbered year, commencing at 3.00pm on the last day of Term 4 and concluding at 3.00pm three weeks later; and
12.2.2.2For three weeks during the Term 4 school holiday period which commences in an odd numbered year, commencing at 3.00pm on the Saturday that is closest to the midpoint of the school holiday period and concluding at 3.00pm three weeks later.
12.2.3For the purposes of Order 12.2.2 the Term 4 school holiday period is deemed to commence at 3.00pm on the last day of the school term and to conclude at 3.00pm on the day prior to the commencement of the next school term, with school terms to be calculated in accordance with the arrangements for the school which each child attends.
13Notwithstanding any other Order hereto:
13.1Commencing in 2026 and each year thereafter, the children will spend time with the mother on the weekend that includes Mother’s Day from 9.00am on Sunday until the commencement of school on Monday.
13.2The children will remain in the care of the father on the weekend that includes Father’s Day from 9.00am on Sunday until the commencement of school on Monday, and the children’s time with the mother is suspended for that weekend.
Changeover
14Unless otherwise agreed in writing between the parents, where a changeover does not occur at school, the mother will collect the children from the father’s residence at the commencement of time and must return the children to the father or his nominee known to the children at the father’s residence at the conclusion of time.
Communication
15Unless otherwise agreed in writing between the parents, whichever parent has the care of the children on any Wednesday must facilitate the children communicating with the other parent between 4.30pm and 5.30pm that day, with the other parent to place a call to the mobile telephone number of the parent who has the care of the children, and the parent who has the care of the children will afford the children privacy to speak with the other parent.
Contact details and parental communication
16Each parent will keep each other informed at all times of the details of their current residential address, email address, and mobile telephone number and must notify the other parent of any change to such details within 24 hours of a change occurring.
17Except in an emergency, communication between the parents will take place in writing via the parenting communication application Our Family Wizard.
Further Injunctions
18Pursuant to s.68B of the Family Law Act 1975 (Cth) the mother is hereby restrained by injunction from doing any of the following:
18.1Denigrating the father, or his partner, or the father’s parenting choices, to the children or in the presence or within hearing of the children.
18.2Discussing any aspect of the past or present parenting proceedings with the children or in the presence or within hearing of the children.
18.3Providing or showing the children any document associated with the parenting proceedings or the Local Court proceedings to the children.
18.4Discussing any proposed changes to these parenting Orders with the children.
18.5Encouraging or facilitating the children to communicate or spend time with the mother other than in accordance with these Orders, unless she has first obtained the written consent of the father.
18.6Spending time or communicating with the children other than in accordance with these Orders, unless with the written consent of the father.
18.7Attending the children’s home, school or extra – curricular activities other than in accordance with these Orders, or with the prior written consent of the father.
Passports and International Travel
19The children X born in 2012 and Y born in 2015 are permitted to travel internationally with the father as provided by section 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth) or otherwise in accordance with his express written consent.
20The father is authorised to execute a passport application or passport renewal application for the children or either child without the consent of the mother.
21The father will have safe keeping of the children’s passport or passports.
The Independent Children’s Lawyer to meet with the children to explain the Orders
22That within 14 days of the making of the Final Orders the Independent Children’s Lawyer will meet with the children for the purposes of explaining the Orders to the children.
Order for costs of the Independent Children’s Lawyer
23Within six months of the date of these Orders, the applicant mother and the respondent father will each contribute the sum of $6,686.00 towards the costs of the Independent Children’s Lawyer, unless an exemption or fee waiver is obtained from Legal Aid New South Wales.
AND THE COURT FURTHER NOTES THAT:
A.These Orders intentionally make no provision for the children to travel internationally with the mother. Any international travel for the children with the mother may occur at the sole discretion of the father in the exercise of his sole responsibility for making decisions about all major long-term issues in relation to the children and may occur only with the express written consent of the father.
B.If either parent presses their application for an order for costs against the other parent, then within 28 days hereof an application may be made to Chambers accompanied by a proposed timetable for filing of written submissions, without the need for appearances unless formally requested.
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 CARTY
INTRODUCTION
The two subject children, currently 12 years old and 10 years old respectively, have been the subjects of litigation about their parenting arrangements, on and off, for about six years.
The applicant mother Ms Pauley (“the mother”) was the children’s primary carer until December 2022, when the children moved to live with the respondent father Mr Raleigh (“the father”) after final parenting orders were made on an undefended, ex-parte basis on 30 November 2022 (“the 2022 Orders”).
On 31 January 2024 following a defended interim hearing, the Court made an interim order suspending the operation of the spend time and communication orders for the children with the mother in the 2022 Orders. The Court ordered that the children spend time with the mother under supervision of the LL Contact Centre at City MM (“LL Contact Centre”) and that the children’s electronic communication with the mother be supervised by LL Contact Centre.
Supervision of the children’s time and communication with the mother was imposed to ameliorate the risk of emotional and psychological harm to the children from exposure to the mother denigrating the father and his parenting practices, undermining the children’s placement with the father, and involving the children in the parental conflict. Even under supervision, the mother has not shielded the children from her derogatory views of the father.
In the present proceeding, the mother seeks an order to discharge the 2022 Orders, and an order that she have sole responsibility for decision-making about major long-term issues relating to the children, and that the children live with the mother, and spend substantial and significant time with the father, including each alternate weekend and for half school holiday periods.
The father seeks an order that he retain sole responsibility for decision-making for major long-term issues relating to the children, and that the children continue to live with him, and that the children’s time and communication with the mother remains supervised. The father contends that the children are at unacceptably high risk of emotional and psychological harm in the household of the mother due to her relentless denigration of the father and his parenting practices and the mother’s overvalued beliefs.
The mother’s capacity to provide safe and appropriate care for the children is a key issue in this proceeding. A Single Expert Consultant Forensic Psychiatrist assessed the mother’s mental state on 30 April 2024, 1 May 2024 and 10 May 2024, and has expressed the opinion that the Dunning-Kruger effect is operative in the mother’s presentation. The evidence of the Forensic Psychiatrist is discussed further in these reasons.
The Court has the benefit of the involvement of an Independent Children’s Lawyer. They propose final parenting orders in line with the orders sought by the father. The Independent Children’s Lawyer shares the father’s view that the children are at unacceptable risk of emotional and psychological harm in the mother’s household due to the impacts of her cognitive biases and her relentless criticism of the father in the presence of the children.
For the reasons which are discussed further, I am satisfied that it is in the best interests of the children to make an order that the father have sole responsibility for making decisions about major long-term issues relating to them, and an order that the children live with the father. I am satisfied that, on balance, it is proper and in the best interests of each to child to make an order that they spend time with the mother each alternate weekend, and for one half of each school holiday period. The children derive considerable benefit from their relationships with both parents and share many common interests with both. I am satisfied that the risks of harm which posed by the mother are not so unacceptably high as to warrant the imposition of long term supervision, particularly when weighed against the risks to the children of not having the benefit of a meaningful relationship with both parents, and that the identified risks are adequately ameliorated by the final parenting orders which the Court proposes to make in this proceeding.
BACKGROUND
In this background, statements of fact should be construed as findings unless otherwise stated.
The mother is 47 years old. She lives at Town B, New South Wales and describes her occupation as homemaker.
The father is 53 years old. He lives with the two children in a home at Town AA, New South Wales. The father is a company director and operates his own business.
The parents commenced their relationship in 2010 and were married in 2012. They finally separated under the one roof in October 2017. In March 2018 the father moved out of the former matrimonial home. The parents are now divorced.
There are two children of the marriage:
(a)X, born in 2012, who was 12 years old at the hearing; and
(b)Y, born in 2015, who was 9 years old at the hearing, and is now 10 years old.
The parental homes are situated about 10 minutes’ driving distance away from each other. The children attend NN School in City MM, where they are performing well academically and socially. The children are engaged in a range of extracurricular academic, artistic and physical pursuits.
The final parenting Orders which were made by consent on 10 December 2019 (“2019 Orders”) provided that the parents have equal shared parental responsibility for the children. The children lived with the mother, and spent time with the father regularly, in accordance with a parenting calendar which took account of the father’s work arrangements. The children generally spent time with the father overnight for extended weekends about twice each month during school terms, and they enjoyed block periods of time with him during school holidays.[1]
[1] Exhibit F2
On 7 December 2021 the father commenced a second round of parenting proceedings in which he sought an order that the children live in an equal time arrangement week about with each parent. Unfortunately, for reasons which are discussed further, the mother failed to participate at the final hearing and the proceeding was finalised on an undefended basis on 30 November 2022.
The final parenting orders made on 30 November 2022 (“2022 Final Orders”) allocated sole parental responsibility for the children to the father and restrained the mother from removing the children from school during school hours. The 2022 Final Orders noted that the children would be enrolled at NN School from 2023 onwards, and provided that the children live with the father and spend time with the mother each alternate weekend from after school on Friday until before school on Monday, and for block periods during the school holidays. There was further provision for the parents to use their best endeavours to reach agreement on the time the children spend with each parent, other than as set out in the orders, and provision for changeover, special days, and overseas travel. Both parents were at liberty to attend at the children’s schools and extracurricular activities and were required to inform each other if the children sustained any significant injury or illness.
The 2022 Final Orders contained a non-denigration order whereby both parents were restrained from speaking in a critical, abusive, denigrating, insulting or negative way about the other parent in front of the children, and from permitting the children to remain with anyone else who does so, and the parents were restrained from discussing with the children or within the children’s hearing any parenting dispute or Court proceedings. The mother has since denigrated the father to the children on several occasions, in breach of the non-denigration order.
After the mother removed the children from the care of the father, he filed an application seeking a recovery order. Unfortunately, it was necessary for the police to attend at the mother’s home to retrieve the children and return them to the father. This was an unnecessarily traumatic experience for the children, and was created by the mother, who has attempted to deflect responsibility for her parenting decisions.
Since 8 December 2022, the children have lived with the father. Between December 2022 and September 2023, the children spent regular time with the mother pursuant to the 2022 Final Orders.
In December 2022, without the father’s knowledge or consent the mother provided the children with a mobile phone. Until the father discovered and removed the phone in mid-September 2023, the mother and the children were communicating with each other without the father’s knowledge or consent and outside of the provisions made in the 2022 Final Orders. The mother encouraged the children to keep the phone secret from the father and denigrated him to the children in numerous messages and undermined the children’s placement with him as discussed further.
On 1 February 2023 the father arranged for the children to commence counselling at LL Contact Centre to assist them to adjust to their changed circumstances.
On 10 May 2023 the mother filed an Initiating Application, which commenced the current proceeding. The mother seeks an order that she have sole parental responsibility for the children, and that the children live with the mother and spend time with the father each alternate weekend and for one half of school holiday periods.
In mid-2023 an Apprehended Domestic Violence Order (“ADVO”) was made against the mother for the protection of the father. The mother was arrested and charged with assault and intimidation. The criminal charges and the application for Final ADVO were later withdrawn and dismissed.
On 13 July 2023 the father filed a Response in which he sought an interlocutory order to dismiss the mother’s Initiating application with costs. On 19 July 2023 a Senior Judicial Registrar made an order appointing an Independent Children’s Lawyer for the children pursuant to s 68L of the Family Law Act 1975 (“the Act”) and granted leave to issue subpoena. The Court noted that the parties had agreed to appoint a private report writer to prepare a report.
On 2 August 2023, Dr HH was appointed as joint single expert to prepare a report pursuant to Rule. 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). On 22 November 2023 the report of Dr HH was released to the parties. Dr HH provided an affidavit in this proceeding and gave oral evidence at the hearing, which is discussed further herein.
On 3 October 2023 the father filed an Application in a Proceeding seeking an interlocutory order to suspend the children’s time with the mother and an order that the children’s time and communication with the mother be supervised. The father’s application was made following his discovery of the first covert phone which the mother had provided to the children.
On 26 October 2023 the father discovered that the mother had provided the children with a second mobile phone, again without consulting him, which contained communications between the mother and the children wherein the mother denigrated the father to the children, undermined the children’s placement with him, and involved the children in the parental conflict. In December 2023 the children commenced spending supervised time with the mother at LL Contact Centre in City MM, pending an interim defended hearing.
On 31 January 2024, following an interim defended hearing, the Court made interim parenting orders which provide, inter alia, that the children spend supervised time with the mother and have supervised communication with her.[2] Pursuant to the recommendation made by Dr HH[3] the Court made an order appointing a single expert Forensic Psychiatrist to prepare a report in relation to the mental health status of the mother. The Court ordered that the mother be restrained from engaging in any form of denigration of the father or his partner.[4]
[2] Pauley & Raleigh [2024] FedCFamC2F 286
[3] Single Expert Family Report [326]
[4] Order 2.1 made on 31 January 2024
On 23 May 2024 the affidavit of Dr JJ, Forensic Psychiatrist was filed, pursuant to his appointment as single expert to enquire into the state of the mother’s mental health. Dr JJ’s report and his oral evidence at the hearing is discussed further.
In mid-2024 the police withdrew the application for ADVO against the mother for the protection of the father, and it was dismissed.[5]
[5] Exhibit M1
On 23 September 2024 the final hearing commenced in City MM and proceeded over four days but could not be finished and the trial was adjourned part-heard for hearing over a further three days on 18, 19 & 20 November 2024 in City MM. As there was still material to be tendered by consent, and no time to hear final submissions, a timetable was set including for filing written submissions.
On 20 November 2024 the Court made an order by consent that the mother have leave to provide a copy of the expert report of Dr JJ to Dr OO, a Clinical Psychologist at PP Centre. It appears to be agreed that the mother had commenced attending sessions with Dr OO in early October 2024, during the period of the adjournment of the trial.
On 4 March 2025, by way of a joint communication to Chambers, the parties mutually agreed that the Court would receive into evidence a copy of a Provisional ADVO made in early 2025, upon the application of police against the mother’s partner Mr KK for the protection of the mother.[6]
[6] Exhibit J1
THE HEARING
Ms Conte-Mills of Counsel appeared for the applicant mother, instructed by Paladin Lawyers.
Ms Decle of Counsel appeared for the respondent father, instructed by Park Avenue Family Law.
Ms Beckett of Counsel appeared for the Independent Children’s Lawyer, instructed by Legal Aid New South Wales at City MM.
THE PARENTING PROPOSALS
The applicant mother
The mother sought final parenting orders which are set out in her case outline document, in summary that:
(1)The final parenting orders made on 30 November 2022 be discharged.
(2)The mother have sole decision-making responsibility for major long-term decisions relating to the children.
(3)The children live with the mother.
(4)The children spend time with the father during school terms as agreed between the parents, and failing agreement each alternate weekend from after school Friday until commencement of school on Monday, and during school holidays for the first half of each school holiday period, and on special occasions.
(5)Orders for changeover, communication, attendance of the parents at school and extracurricular activities, mutual non denigration orders, medical authorities, and passport and travel orders.
(6)Costs.
The respondent father
The father sought final parenting orders which are set out in his Amended Response to Initiating Application filed on 9 August 2024, in summary that:
(1)The father have sole decision-making responsibility for major long-term decisions relating to the children, and an order that he keep the mother informed in writing of the major long-term decision he makes in relation to the children and the contact details for the children’s schools and medical, dental or allied health professionals.
(2)The children live with the father.
(3)The children spend time with the mother as agreed in writing and failing agreement for up to four hours on one occasion each calendar month, with such time to be supervised by a professional children’s contact supervisor.
(4)The children communicate with the mother by telephone, Zoom or other audio-visual means for up to one hour on one occasion each calendar month with the duration of the communication to be determined by the children, and supervised by a professional children’s contact supervisor.
(5)The mother be at liberty to send cards, letters and gifts to the children.
(6)The mother be restrained for the protection of the father and the children from:
(a)Denigrating the father, or his partner, or the father’s parenting to the children or in their presence or hearing;
(b)Discussing any aspect of past or future court proceedings involving the parents with the children;
(c)Providing or showing any documents associated with any court proceedings involving the parents to the children;
(d)Discussing any proposed changes to these parenting orders with the children;
(e)In any way encouraging or facilitating the children to communicate or spend time with the mother other than in accordance with these orders;
(f)Spending time or communication with the children other than in accordance with these orders;
(g)Attending the children’s home, school or extra-curricular activities without the prior express written consent of the father; and
(h)Causing the children to come into contact or communication with Mr KK.
(7)The father be permitted to cause the children travel outside of the Commonwealth of Australia and to obtain or renew a passport for each child.
(8)Orders relating to Family Dispute Resolution and Family Therapy.
(9)Costs.
Independent Children’s Lawyer
The Independent Children's Lawyer reserved their position until the conclusion of the trial, when in their final written submissions, they sought final parenting orders which are set out in a Minute of Order attached to those submissions. In summary the Independent Children’s Lawyer seeks the following final parenting orders.
(1)That all previous orders be discharged.
(2)The father have sole responsibility for major long term decisions with respect to X born in 2012 and Y born in 2015.
(3)That the children live with the father.
(4)The children will spend time with the mother at all times that may be agreed between the parents in writing and failing agreement as follows:
(a)Up to 3 hours on one occasion each fortnight with such time to be supervised;
(b)That the time be supervised by a professional supervisor to be jointly engaged by the parties, in the absence of agreement the father shall nominate 2
supervisors and the mother shall select the supervisor;
(c)That the father shall bear the cost of the supervision.
(5)That the mother is at liberty to send cards, letters and gifts to the children to an address nominated by the father and provided the correspondence does not denigrate the father the correspondence shall be provided by the father to the children.
(6)Pursuant to section 68B of the Family Law Act 1975, the mother be and is hereby restrained by injunction from:
(a)Engaging in any form of denigration of the father (or the father’s partner) in the presence of or directly to the children;
(b)Apart from responding supportively and appropriately to any views or feelings and views that may be expressed by the children, discussing any specific or personal views regarding Court matters, and the present or future parenting arrangements with the children; and
(c)Having any contact or communication with the children other than as expressly authorised in these orders or as agreed in writing by the Father.
(7)Pursuant to section 68B of the Family Law Act 1975, the mother and the father be and are hereby each restrained by injunction from:
(a)Discussing with or within the hearing of the children any aspect of these proceedings;
(b)Discussing with or within the hearing of the children any aspect of the parent conflict or any ill-feelings towards or negative view of the other parent; and
(c)Allowing the children X, born in 2012 and Y, born in 2015 to spend time or communicate with Mr KK, born in 1974.
(8)The father will do all acts and things to facilitate the children continuing to attend upon their counsellor Ms QQ at LL Contact Centre for so long as the counsellor considers it to be appropriate.
(9)The mother is granted leave of the Court to provide her treating psychologist with a copy with the following to assist with her counselling:
(a)Single Expert Report of Dr HH;
(b)Single Expert report of Dr JJ;
(c)The final Judgment in this matter.
(10)This order acts as authority for NN School to provide the mother with information about the children’s educational progress including in the following ways:
(a)By providing school reports and other written records about the children’s education;
(b)By providing school photo order forms.
(11)The father shall keep the mother informed in writing of:
(a)Any major long term decision in relation to the children, within 7 days of making the decision;
(b)Contact details for any school the children are enrolled from time to time, within 7 days of a new enrolment; and
(c)Contact details for any medical, dental or allied health practitioner that the children attend upon from time to time, within 48 hours of the first attendance with a practitioner.
(12)The parents will communicate using the parenting app Our Family Wizard.
(13)In the event that either or both of the children sustain any significant injury or illness which requires hospitalisation, the father will inform the mother as soon as practicable by telephone.
(14)That within 14 days of the final orders being made, the Independent Children’s Lawyer will meet with the children for the purposes of explaining the final orders to the children.
(15)Within 6 months of the date of the final orders, the Mother and the Father are to each pay to the Legal Aid Commission NSW, the amount of $6,686.18, being one half of the costs of the Independent Children’s Lawyer, unless an exemption or waiver is obtained.
ISSUES FOR DETERMINATION
The issues which the Court must determine are:
(1)The live with arrangements for the children.
(2)The spend time arrangements for the children, including whether it is in the best interests of the children for the time that the children spend with the mother to be professionally supervised.
(3)The arrangements for the children to communicate with the parent with whom they do not live.
(4)Allocation of parental responsibility for the children.
(5)Restraints, including whether the mother will be restrained from allowing the children to spend time or communicate with Mr KK born in 1974.
(6)Passports and International travel.
(7)Costs.
Documents for each party
In support of her case the mother relies upon:
(a)Outline of Case Document (Final Hearing) filed on 20 September 2024.
(b)Her Affidavit filed 28 August 2024.
(c)Affidavit of Ms RR filed 28 August 2024.
(d)Affidavit of Ms SS filed 28 August 2024.
(e)Single Expert Report of Dr HH dated 22 November 2023.
(f)Single Expert Report of Dr JJ dated 17 May 2024.
(g)Initiating Application filed 10 May 2023.
(h)Costs Notice filed 22 September 2024.
(i)Reasons for Judgment Pauley & Raleigh [2024] FedCFamC2F 286.
(j)Reasons for Judgment and Orders in (P)CRC517/2021 delivered by Senior Judicial Registrar Flintoff on 30 November 2022.
(k)Exhibits M1 to M22.
(l)Written Submissions filed 15 January 2025.
In support of his case, the father relies upon:
(a)Case Outline Document filed 19 September 2024.
(b)Amended Response to Initiating Application filed 9 August 2024.
(c)Notice of Child Abuse, Family Violence or Risk filed 13 July 2023.
(d)His Affidavit re-filed on 5 September 2024.
(e)His Affidavit filed with leave on 18 November 2024.
(f)Affidavit of Ms TT filed 20 September 2024.
(g)Judgment and Orders delivered by Judge McGuire on 13 March 2020.
(h)Judgment and Orders delivered on 31 January 2024.[7]
(i)Judgment and Orders delivered on 30 November 2022.
(j)Single Expert Report of Dr HH dated 22 November 2023.
(k)Single Expert Report of Dr JJ dated 17 May 2024.
(l)Exhibits F1 to F30.
(m)Exhibit ICL3.
(n)Written Submissions filed 16 January 2025.
[7] Pauley & Raleigh [2024] FedCFamC2F 286;
The Independent Children’s Lawyer relies upon:
(a)Case Outline Document filed 20 September 2024.
(b)Child Impact Report of Court Child Expert Ms UU dated 7 November 2022.
(c)Single Expert Report of Dr HH dated 22 November 2023.
(d)Single Expert Report of Dr JJ dated 17 May 2024.
(e)Exhibits ICL 1, ICL 2 and ICL 3 and J1.
(f)Written Submissions filed 13 December 2024.
LEGAL PRINCIPLES
Orders in respect of children are regulated by Part VII of the Act. The meaning of “parenting order” and related terms is set out at section 64B of the Act.
The court may make such parenting order as it considers proper.[8] When making a parenting order, the court must regard the child’s best interests as the paramount consideration.[9]
[8] Subsection 65D(1). The Objects of Part VII of the Act are set out in s. 60B of the Act and provide further important context. The Objects of Part VII of the Act are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the 1989 Convention on the Rights of the Child.
[9] Sections 60CA and 65AA.
Section 60CC(2) of the Act specifies six matters which the court must consider for the purposes of determining what is in the child’s best interests. Those matters are:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views[10] expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
[10] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
In considering the matters which the court must consider in determining what is in the best interest of the child, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[11]
[11] Subsection 60CC(2A).
Section 60CG of the Act requires the court to ensure that whatever parenting order is made, the order does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration. Should a parenting Order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues.[12] Any encouragement of consultation is rendered obligatory upon the making of a joint parental responsibility order requiring each person to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision.[13]
[12] Subsection 61D(3).
[13] Section 61DAA.
The evidence of the Court Child Expert Ms UU
The child impact report dated 7 November 2022 was prepared by Ms UU for the 2021-2022 proceeding and is in evidence in the current proceeding.[14] Ms UU was not required for cross-examination.
[14] Case Outline Document for the Independent Children’s Lawyer filed 20 September 2024
The children were living with the mother in November 2022 and generally spending time with the father each alternate weekend, for half school holidays, and on special occasions, pursuant to the 2019 Orders. The mother was afforded an opportunity to participate in the assessment for the child impact report, but she did not participate.
The Court Child Expert interviewed the father and the children and made incidental observations between the father and the children which showed the children to be happy and comfortable in his care.
The Court Child Expert recognised that the mother had been the primary caregiver for both children since their respective births.[15] She noted that the divergence in the parental views, whereby the mother held beliefs involving ‘New World Order’ ideology and the father held more mainstream views about the day to day care of the children, appeared to cause conflict in many aspects of the children’s care, including in relation to decisions about whether the children should be vaccinated against childhood diseases, what the children should eat and whether the children should attend school on time.[16]
[15] Child Impact Report [6]
[16] Ibid [8]
The expert noted that the children:
...presented as happy children, largely shielded from the current parental conflict. [The children] were observed to be gentle girls, who appeared confident in the love of both parents, and accepting of their unique childhood experiences.[17]
Of concern, both children indicated being exposed to the mother’s negative view of the father, and other adult matters. The children appeared relaxed as they spoke of their mother’s “list” of the three people the mother disliked, and the reasons why the mother disliked these people, including the father.[18]
[The older child] held no view as to who she should live with, or how she should spend her time with the non-residing parent, [the younger child] expressed a desire to reside with her mother…because she has multiple pets…there is a trampoline at the mother’s home.[19]
[17] Ibid [9]
[18] Ibid [12]
[19] Ibid [13]
The Court Child Expert expressed significant concerns for the wellbeing of the children in the care of the mother and made a notification under s.67ZA of the Act to the Department of Communities and Justice in relation to risk of neglect and psychological harm for both children while in the care of the mother.[20] Concerns relating to neglect included a report that the younger child had ongoing head lice over about one year, which had resulted in abrasions on her scalp. The children were reported not to eat breakfast in the care of the mother, due to the mother’s dietary beliefs, and the father reported that the children regularly complain of being hungry, and of not having access to sufficient food while in the care of the mother. The children were not observed to be underweight or malnourished, and it was noted that they both enjoyed physical activities. It was further noted that the mother reportedly withheld permission for the children to participate in a dental check-up at school, due to her belief system. The father had encouraged the children to participate, but the older child had refused. The father reported that the mother was reluctant for the children to attend on medical practitioners, and that on one occasion had refused for the younger child to attend a medical practitioner for a persistent cough. The father was concerned about the childhood immunisation status of the children, noting that the younger child had not received any childhood vaccinations. The children were reportedly regularly late for school, or do not attend school, and the father reported that the absences and lateness appeared to be increasing.
[20] Ibid [16]
The Court Child Expert expressed concern that the children are being exposed to psychological harm which may cumulate, resulting in long-term physical and mental health concerns for both children, due to exposure to the mother’s views, including belief of conspiracy theories.[21]A further concern was that the children may develop hypervigilance, which could adversely affect all facets of their lives, in the short and long term.[22]
[21] Ibid [23]
[22] Ibid [25]
In relation to the children’s exposure to the mother’s negative views of the father, the Court Child Expert considered that due to the older child’s age and stage of development it was likely she sought approval and guidance from her parents and is accepting of her parents’ beliefs. The father reported his concern that the younger child was showing signs of a loyalty bind.[23]
[23] Ibid [27]
The Court Child Expert expressed concern that the children’s vulnerabilities could result in one or both children aligning themselves with the mother, which was of particular concern if the mother is becoming more extreme in her views, and the children feel the emotional or psychological strain of the parental conflict.[24]
[24] Ibid [28]
Based upon the father’s narrative, the Court Child Expert was concerned for the mother’s mental wellbeing.[25] She made a mandatory notification to DCJ pursuant to s.67ZA of the Act in relation to risk of neglect and psychological harm for both children in the care of the mother.
[25] Ibid [30]
The Court Child Expert assessed that it was not in the children’s best interests to experience a week about arrangement, due to significant differences in the parents’ beliefs and value systems about the care of the children and the potential psychological and emotional impact on the children of being required to regularly adjust to living equally between the parents.
The Court Child Expert recommended that if the Court determines an unacceptable risk to the children whilst in the care of the mother, the children reside with the father and spend regular time with the mother.
Far from being of limited value, the Child Impact Report correctly identified that the children were being exposed to psychological harm which may result in long-term physical and mental health concerns for both children, due to exposure to the mother’s views, and the risk of alignment with the mother and loyalty binds, and hypervigilance. The same risks remain operational, and have identified in the current proceeding by the single experts engaged to provide reports.
Dr HH, Single Expert Clinical Psychologist
The Single Expert Report by Dr HH is dated 22 November 2023. The Report is annexed to the Affidavit Dr HH filed on 15 January 2024, and Dr HH was cross-examined at the hearing.
Dr HH commented about the mother’s decision to provide the children with a covert mobile phone, which placed the children in a position where they were directly involved in and and impacted by the parental dispute. I accept Dr HH’s evidence that the mother ability to manage her emotions, including empathy, concern and worry for the children, was compromised and her actions reflected poorly on her parental insight.[26]
[26] Ibid [290]
In relation to the mother’s denigration of the father to the children, Dr HH reported:
In regard to the children’s exposure to parental denigration, the father contends that the mother has denigrated him to the children for multiple years. It is evidently clear that the mother has denigrated the children to the father since at least the time of the change of primary residence. The mother appears to acknowledge this, yet concerningly justified it in the context of her emotional experience.
It is noteworthy that [X] described her ability to dismiss the mother’s denigration of the father due to the familiarity of this occurring, which may suggest, as the father contends, that the mother’s denigration of him pre-dates the change of primary residence. Whilst concerning, highly inappropriate and potentially damaging to the children’s perception and relationship with the father, such denigration appears to have little impact on the children’s views and feelings towards the father.
This is perhaps testament to the strength of the children’s relationship with him, but may also, concerningly, reflect that the children are so accustomed to it that they pay rather little attention to it, which would suggest that the father’s depiction of historical denigration may be accurate.[27]
[27] Ibid [299]
I am satisfied and find that, as the father reported, the mother has denigrated him to the children for multiple years, from as far back as at least 2018. During the trial, the mother continued to justify her denigration of the father, including because, she alleges, he has a “high conflict personality.” The substantial body of evidence of the communications between the parents provides no support at all for the mother’s contention. The father is child focussed, polite and respectful in his communications with the mother. There is no evidence that the father has denigrated the mother to the children or mocked or criticised her parenting practices. The mother on the other hand is verbally abusive, demanding and disrespectful towards the father and she criticises and mocks his parenting practices. I am satisfied and find, for reasons discussed further, that the mother lacks a child focus, and that she struggles to manage her anger and there are multiple examples in the evidence where the mother is unable to regulate her emotions and impulses sufficiently well to enable her to engage in respectful child focussed communication with the father.
Dr HH further assessed that:
In any case, this is a very concerning pattern of behaviour that is considered a form of emotional abuse that may not be showing overt signs of impacting upon the children as yet, but would be internally at least. Denigration of the father to the children creates a situation where there is potential to undermine the children’s feelings toward the father, which may become evident at a later time, particularly in the context where the children perceive the current time arrangements as inequitable and unfavourable. Such behaviour also continues to raise awareness and involve the children in the parental dispute and conflict, which exposes the children to unnecessary stress and duress when they are developmentally not equipped to process or cope with it. Should the mother’s allegations against the father be accurate that he denigrates herself to the children, similar advice would apply to the father to take heed.[28]
[28] Id
Notwithstanding that the mother is aware of the assessment and recommendations made by Dr HH in November 2023, she has been unable to resist her impulse to denigrate the father’s parenting practices to the children, even during supervised visits. [29] The mother demonstrates that she lacks insight into the harmful effects of her behaviour on the children.
[29] Exhibit ICL 3
I accept Dr HH’s evaluation that:
The mother’s behaviour in denigrating the father reflects poorly on her insight and into how this might negatively affect the children, and reflects poorly on her capacity to regulate her emotions and refrain from exposing the children to adult concepts and issues[30].
[30] Ibid [300]
Dr HH expressed his chief concern for the children in the mother’s care at the date of his report, in the following passage:
…the mother’s inability to regulate her emotions and to refrain from exposing the children to her behavioural issues, which the children are developmentally ill-equipped to cope with. The issue also extends to the mother’s ability to make appropriate decisions and refrain from exposing the children to personal beliefs that she holds that again would be developmentally inappropriate or negatively impede their needs being met. [31]
[31] Ibid [301]
Dr HH reported:
There are strong indications from the mother’s presentation that suggest that there are issues with her capacity to regulate her thoughts, impulses and emotions. In the context of the father’s accounts that the mother is demonstrating concerning beliefs it would be considered important that the mother’s mental health and beliefs are further assessed independently…[32]
Whether or not the mother is assessed to be experiencing mental health issues it is clear and evident that there are flaws that exist in relation to the mother’s parental insight as evidenced by some of her actions and decision-making post-separation which could be characterised as contrary to the children’s best interests, conceivably emotionally harmful and potentially detrimental to the children’s views and feelings towards the father and their relationship with him.[33]
[32] Single Expert Family Report [309]
[33] Ibid [310]
Dr HH recommended that the parents seek options for a privately-funded external supervisor to ensure that time between the children and the mother occurs as soon as possible in lieu of expected delays with the LL Contact Centre service becoming available, and that interim orders are made for the children to spend time with the mother at a supervised contact centre and that the children share communication with the mother by video, preferably, or phone, for at least three occasions per week, and that the parents immediately appoint and engage with a practitioner who can provide reportable family therapy, and that the mother seek an immediate independent assessment by a psychiatrist or clinical psychologist and immediately engage with the psychologist on a regular basis for at least a 12-month period.[34]
[34] Single Expert Report [322 – 326]
In cross-examination, Dr HH agreed with Counsel for the father that the mother telling Y, while Y is eating tuna from a can during a supervised communication with the mother, that she can’t have tuna more than twice per month because it is full of mercury, is not good for her brain and “I’ve noticed your brain function declining, and you’ve got the wi-fi on” is potentially a harmful thing for the mother to say to Y, depending on how the child interprets that. It is likely to make the child ashamed of her choices or her behaviour. Telling the child that her brain function is declining is clearly not an appropriate comment for the mother to make.
The father and the Independent Children’s Lawyer are rightly concerned about the impact on the children of being exposed to the mother undermining the parenting choices of the father and raising issues with the children about their choices in relation to diet and health.
I accept Dr HH’s oral evidence that the impact on the children will depend on a number of variables, including how each child individually interprets the mother’s behaviour, and the strengths of their relationships with each parent, and their loyalties.
Dr HH assessed the children and reported that:
It is noteworthy that [X] described her ability to dismiss the mother’s denigration of the father due to the familiarity of this occurring…
Whilst concerning, highly inappropriate and potentially damaging to the children’s perception and relationship with the father-such denigration appears to have had little impact on the children’s views and feelings towards the father. This is perhaps a testament to the strength of the children’s relationship with the father but also may concerningly reflect that the children are so accustomed to it that they pay little attention to it….”[35]
[35] Single Expert Family Report [299]
In his oral evidence Dr HH said that some children are better than others at “compartmentalising” the undermining behaviour and
“…almost being dismissive of that…especially if it is repetitive, and they…have a decent relationship with …the parent who is being undermined. So it does depend.
…It’s a long time ago now that I spoke to the children, but from my recollection we discussed this issue…the mother speaking negatively towards the father. And I believe, from my recollection, that one, if not both children, indicated that they…kind of ignore it because they’re kind of used to it or understand that it is not accurate based on their own experiences with the father…
…whatever undermining may have occurred, it doesn’t seem to have impacted negatively on the children’s views of the father.”[36]
[36] Transcript 19.11.24 pp 532-533
I pause to note that, the mother’s behaviour can potentially have deleterious impacts on the children, including on their sense of security in their relationships with the father and their trust in his parenting capacity and his judgment, and continues to involve the children in the parental conflict, which is harmful because it can lead to short and long term negative impacts, including the potential for the children to reject one parent, or reject the authority and guidance of both parents. Ongoing exposure to parental conflict can result in children having difficulty concentrating at school, with impacts on their learning, it can lead to loss of trust, depression, substance abuse and unstable interpersonal relationships, including an inability to form healthy intimate relationships as adults.
I accept the evidence of Dr HH that:
The children need the mother to portray the father as a positive, loving and important figure in their lives and fostering this narrative ongoing will be in their best interests.[37]
[37] Single Expert Family Report [303]
Again, I pause to note that if the mother chooses not take action to assist her to gain in her level of insight, then not only are the children at risk of potential harm, but they are at increased risk of losing their relationships with the mother.
I accept and place significant weight on the assessment of Dr HH that:
The mother impressed as being equipped with many parental strengths, as being a very devoted, loving, and adoring parent to her children and an extremely important part of their lives no doubt. In this context, I have faith that the mother's strength of love for her children will prevail in terms of her realising, accepting, and changing what is considered necessary with respect to her parental insight and behaviour - for the children's sake. I also consider that the father will encourage and facilitate a meaningful relationship with the children and mother should the discussed concerns be addressed.
Conversely, if such issues are not addressed by the mother the risk factors that exist for the children will likely persist and escalate in nature over time. Such a scenario may result in perhaps extinguishing the potential for the children to share a meaningful relationship and time spent with the mother- at least in an unsupervised capacity. Such a scenario will almost certainly be detrimental to the children's best interests but nevertheless considered necessary in order to safeguard their emotional wellbeing, nonetheless.[38]
[38] Single Expert Family Report [320]-[321].
Dr JJ
Dr JJ is a Forensic Psychiatrist who was appointed by the parties for the purpose of providing expert evidence to the Court about the mother’s mental health. Dr JJ has provided an affidavit affirmed on 20 May 2024 which annexes his Psychiatric Court Report dated 17 May 2024.
Dr JJ graduated in Medicine at AD University in 1979 and was admitted to the Fellowship of the Royal Australian and New Zealand College of Psychiatrists in 2000. He has extensive relevant experience, including assessing and reporting for Courts on psychiatrist illness and personality disordered individuals in jurisdictions including family law.
Dr JJ assessed the mother on 30 April 2024 by way of Audio-Visual link in an interview lasting 135 minutes. He further assessed the mother on 1 May 2024 by way of Audio-Visual link in an interview 60 minutes, and on a third occasion on 10 May 2024 by way of Audio-Visual link in an interview 60 minutes. Dr JJ reviewed the documentary evidence and the Judgments of the Court. Dr JJ interviewed the mother’s counsellor by phone on 7 May 2024. Dr JJ did not interview or observe any other family member, including the children.
The mother stated that she would not have the girls vaccinated in respect of the Human Papillomavirus as “the vaccine had no positive outcome for preventing cervical cancer”.[39] When asked about the Covid vaccinations the mother began to provide varied information such as “how they “inventor of the PCR test” had stated that the test was not valid for testing for the presence of the covid virus”.
[39] Single Expert Report of Dr JJ filed 23 May 2024 [40]
The mother said that she had “exaggerated her symptoms so as to obtain a mask exemption”. The mother said that “wearing masks depletes the brain of oxygen” and said that “oxygen is pumped into operating theatres so that the surgeons and nurses are not impaired”.
The mother stated “that she often does not read emails or open letters”. She stated that she found out about the 2022 orders when the Police came to recover the children.[40] In the second interview,[41] the mother stated that
“she had not engaged with the court as she had not believed that her children would be removed, this somehow being related to her statements that she had experienced emotionally and financially coercive behaviours by her ex-husband”.
[40] Ibid [44]
[41] Ibid [45]
Dr JJ pointed to the mother’s attitude to treatment of an ear infection, her stance against vaccination, in particular in relation to bacterial meningitis and HPV vaccine and
“it is of note that [Ms Pauley] did not at any point question her parenting decisions, instead focusing on the father’s decisions as being negative towards the children’s welfare”.
Dr JJ considered that the mother’s beliefs,[42]
“certainly appeared to be very ingrained and any attempt at presenting evidence to her was met by opposing views based on misinformation”,
and he cited the example of her mentioning that the PCR testing was deemed by its inventor to not be effective for Covid viruses testing, and the Dr has provided evidence why this is erroneous thinking.
[42] Id
Another example of the mother’s beliefs based on misinformation related to oxygen depletion when wearing masks and the belief that oxygen is pumped into operating theatres. He said that oxygen is not pumped into operating theatres or recovery rooms and even though patients may be on oxygen masks, this does not increase the oxygen level by any significant amount above the nominal 21% and the wearing of a surgical mask does not decrease oxygen saturation of the blood supply to the brain.
It was noted that:
“At no point did [Ms Pauley] question her views or accept that she may have incorrect views based on misinformation or that her beliefs could be detrimental to the health of her children. The tone of her texts to the father of the children further evidence the strength of her beliefs, that is, her parenting views being the only correct ones.”
“One of the important aspects of the Dunning-Kruger Effect is that the holder has no insight into their lack of skill or knowledge and as such they overestimate their competence in making decisions….What may reinforce her views against those of experts is the undertone of her conspiratorial beliefs as evidenced in her text messages e.g. the Big Pharma comment and the texts about the Constitution and the Family Court and the flyers present in her home.”[43]
[43] Id.
Dr JJ reported the following:
•“There were overvalued ideas regarding medication effects and medical conditions. However these were not of a bizarre quality. As such there was no evidence of delusions and specifically no delusions of a persecutory nature or grandiose manner or of thought interference or control or identity or other forms of delusions.”[44]
•“[Ms Pauley]’s insight, specifically psychological was impaired.”[45]
•“Her judgment appeared grossly unimpaired though this observation is qualified as noted below.”[46]
•“The Dunning-Kruger Effect is operative in her presentation. Her views towards evidence-based medicine, that is her denial of accepted science based medical practice do not appear to be based on delusional beliefs.”[47]
•“However it must be noted that people with delusional ideation can become adept at hiding their symptoms and specifically so when faced with legal proceedings. She has in the past demonstrated a capacity to mis-represent symptoms for specific gain, such as the mask wearing exemption. Again, there is no objective evidence towards the presence of delusional ideation.”[48]
•“Her beliefs may be seen as overvalued ideas, based on cognitive bias and misinformation that she holds to be true despite the majority of evidence against it. There is an element in the evidence and in her presentation that points towards mistrust of authority and this can explain her bias towards believing misinformation and her bias against accepted scientific knowledge. Her mistrust of authority and non-acceptance of established authority does have an element of conspiratorial ideation. The comments in her texts about the Constitution and the Family Court may be due to lack of knowledge operating together with a conspiratorial cognitive bias. Certainly, if nothing else, the Dunning-Kruger Effect is operative in her presentation.”[49]
“…there is a psychological issue that significantly impacts upon parenting capacity.”[50]
[44] Ibid [109]
[45] Ibid [113]
[46] Ibid [114]
[47] Ibid [117]
[48] Ibid [118]
[49] Ibid [119]
[50] Ibid [120]
Dr JJ continued on:
“If she does not accept the Court’s authority it is possible that she disregard any Court Orders in regards to behaviours that negatively impact the children, and in particular those around undermining the positive parenting aspects of the father when her views are opposed to his.”[51]
[51] Id.
He noted that:[52]
“cognitive bias can be extremely difficult to shift, especially as people with such bias surround themselves with others with similar false beliefs to in turn reinforce each other’s false beliefs.”
“Engagement with a clinical psychologist with experience in this issue would be recommended and would require long term therapy.”
“The focus would need to be on her gaining insight into the possibility that her beliefs and consequent behaviours may cause harm to her children. The therapy would also need to specifically address the possibility of the mother undermining the father’s parenting practices in regards to health issues.”
[52] Ibid [121]
Dr JJ noted that the mother had seen a counsellor/social worker Ms VV for 10 sessions commencing in February 2023 with the last being in March 2024. These sessions had centred on past relationships and did not involve parenting issues or anxiety or mood problems.[53]
[53] Ibid [66]
In her final submissions, Counsel for the mother seeks to impugn Dr JJ’s findings by reference to evidence which Dr HH was provided in cross-examination. Dr HH, with respect, is not qualified in this matter to evaluate or provide his opinion on Dr JJ’s findings. Dr HH was instructed to prepare a family report, not a forensic psychiatric assessment of the mental state of the mother. Dr HH correctly identified in his report that one of the issues in dispute or identified in his assessment is the mother’s mental health and belief systems and related impact on her parental capacity and the children. Dr HH noted that
There are strong indications from the mother’s presentation that suggest that there are issues with her capacity to regulate her thoughts, impulses and emotions…it would be considered important that the mother’s mental state and beliefs are further assessed independently.[54]
[54] Single Expert Family Report [309}
Dr HH recommended that the mother seeks an immediate independent assessment by a psychiatrist or clinical psychologist, and that the mother immediately engages with a psychologist on a regular basis ongoing for at least a twelve-month period.[55] Clearly not only was Dr HH not appointed to assess the mother’s mental state, he did not do so and left it up to an independent assessor, which is Dr JJ.
[55] Ibid [326][327]
Dr JJ was jointly appointed by the parties pursuant to Chapter 7 of the Rules. The mother did not seek permission to adduce evidence from another expert witness on the same issue, and there was no indication in the Case Outline filed for the mother that the mother proposed to take any issue with the report of Dr JJ, nor does it appear that the mother followed the procedure which is set out in Chapter 7 of the Rules to clarify the report of Dr JJ.
Dr JJ’s evidence was not impugned in any way in cross-examination, nor did Dr JJ change the evidence which he was appointed to provide relating to the mother’s mental health. Dr JJ was unshaken in his evidence that the Dunning-Kruger Effect is operational in the mother’s presentation and I have no doubt that it is. The mother has a fixed and rigid view that she is a superior parent to the father and that his parenting choices, and not her parenting choices are harmful for the children.
Dr JJ said that it is very difficult to treat people in whom the Dunning-Kruger Effect is operational because they lack insight and surround themselves with people who share the same views and social media algorithms feed into the false narratives that these people hold dear.
I wholeheartedly accept and place considerable weight upon the evidence of Dr JJ, which I consider is entirely consistent with totality of the evidence I have heard in this matter, and consistent with my own observations of the mother while she was giving her evidence at the hearing. The mother demonstrated no genuine insight into how her overvalued ideas and her undermining behaviours may cause harm to the children. Her focus appeared predominantly centred on her overvalued ideas, including her overvalued belief that she is a superior parent to the father.
The mother
Since the parental separation, when the two children were 5 years and 3 years old respectively, the mother has held fast to her view that the children should decide whether they want to spend time with the father or not. In cross-examination, the mother confirmed her belief that the children were in charge of what they wanted to do with their lives, including deciding whether and how they wished to spend time with the father, and that she took the view that a three-year-old child was able to make appropriate decisions affecting that child’s long-term future. The mother refused the father’s request to spend time with the eldest child on her first day at school, apparently at the child’s request. The mother said in cross-examination that it was not right to force yourself on a child, and that you should treat them like cats and wait until they come to you. The mother maintained that the father “wasn’t around” and that it was important that the arrangements were “child driven”. The mother remains of the view that the children should decide for themselves whether the parents are able to attend various activities in which they are involved.[56]
[56] Reasons for Judgment 31 January 2024 [
The mother holds onto her belief that she is a far superior parent than the father. She attributes the children’s happiness, wellbeing and good adjustment “almost entirely” to herself.[57] The mother deposed that the father provided exceptional financial support to the children and herself and said that she has always been very grateful that the father appeared to fully support her in her day-to-day care of the children.[58] During the parents’ relationship they agreed that they would undertake specific roles, whereby the mother was the primary carer for the children and the father was the sole income earner for the family. The father supported the mother’s parenting choices during their relationship, which does not mean that he always agreed with the mother’s choices.
[57] Mother’s affidavit [21
[58] Mother’s affidavit [25]
Apart from acknowledging the father’s exceptional financial support, and his support for her care for the children, the mother was highly critical of the father, including in her affidavit and in her oral evidence.
Following separation, the father had little option but to tolerate the mother’s views and to appease her, because any challenge to her authority was met with anger and abuse and impacted the children’s relationships with the father. When the father did not fall into line with the mother’s views, she verbally abused him, including in front of the children. I accept the father’s evidence that the mother regularly verbally abused him, without any restraint, filter or appropriate sign of respect, including on occasions in the presence of the children.
It is abundantly clear that the mother dictated the terms of the children’s relationship with the father.[59] The father sought many opportunities to spend time with the children, which the mother ignored or refused because she was angry with him. The mother prioritised the adult issues, and the parental conflict, over children’s needs. She sometimes responded to the father’s requests to spend time with the children by raising financial issues. On at least one occasion the mother responded to the father’s request to discuss the children’s time with him by sending a screen shot of her bank account balance.
[59] Exhibit F1
The father expressed his concern about the mother’s approach to co-parenting from at least early 2018.[60] Numerous text messages exchanged between the parents demonstrate that the mother’s attitude to communicating with the father was heavily focussed on her criticisms of his parenting and on the parental conflict. The mother sometimes responded to the father’s requests to spend time with the children by accusing him of prioritising work over the children, and blamed him for the breakdown of their relationship.
[60] Exhibit F27
The mother holds firmly to her the view that her parenting choices are superior to the father’s parenting choices. She has accused the father of not liking the children and deliberately harming them. On 2 April 2018 the mother sent a message to the father:
Cow’s milk (cancer promoting), processed meat (cancer promoting), Wi-Fi (cancer promoting). Why don’t you like our children?
In his text message to the mother on 22 August 2018, the father implored her not to make snide remarks or blatantly abuse him in front of the children and to keep the parents’ adult issues away from the children.
On 10 September 2018 the mother sent a message to the father:
I am now hearing that not only did the children eat carcinogenic filthy processed “meat”, but you fed them farmed salmon AND you recently allowed them to PLAY in a drain.
What is going on? R u seriously that fkn greedy that you want to outlive them?
[X] is an absolute mess thanks to her weekend binge on acid-forming animal products. Fuck you
The mother threatened to call the police after the father fed the children farmed salmon.
On 14 September 2018 the father observed in his message to the mother that parents are permitted to develop their relationships with the children, post-separation, according to their own parenting styles. Clearly the father’s approach did not meet with the mother’s approval, and she continued to denigrate the father’s parenting choices, including directly to the children, up until the date of final hearing six years later. I accept the father’s evidence that the mother told the youngest child in November 2018 “I had no idea Dad was such a fucking idiot.”
There are a very large number of text messages in evidence which demonstrate that the mother has repeatedly denigrated the father and verbally abused him.[61] Her angry attitude towards the father is plainly evident, and the mother displays a superior and dismissive attitude towards him. The mother has called the father names including “fucking idiot” “greedy cunt” “selfish bastard” and told him “get your head out of your arse”.
[61] Exhibit F27 and F28
In cross-examination the mother initially denied that she was angry with the father, and she denied that her parenting decisions were driven by her anger. Eventually, the mother conceded that she was angry with the father but was not prepared to concede that her anger impacted on her decision-making about the children’s time with the father, which I find highly implausible in view of the evidence. The mother denied that the children would have picked up the mother’s feelings about the father, which demonstrated her lack of insight. When the children spoke with the Court Child Expert in November 2022 they reportedly
…appeared relaxed as they spoke of their mother’s list of the three people the mother disliked and the reasons why the mother disliked these people, including the father”.[62]
[62] Child Impact Report [12]
The expert made a notification of risk of neglect and psychological harm for both children in the care of the mother, and one of the concerns was that the children were exposed to their mother’s views including her belief in conspiracy theories and her negative views and denigration of the father.
The mother sought to characterise her responses as ‘reactive” and to justify and excuse her behaviour, and to deflect responsibility onto the father. The mother blamed the father because, according to her, he has “high conflict personality.” The mother said that the father “would try to poke the bear.” I reject the mother’s assertion that the father has a high conflict personality, and her inference that his personality is to blame for the mother choosing to verbally abuse and denigrate him. There is no evidence of the father having engaged in conflict with any person other than the mother, and without exception his messages to her have been child focussed, polite and calm, and the father has not verbally abused the mother or denigrated her in the numerous text messages.
The mother contended that the father chose not to make himself available to spend time with the children between the 2019 Orders and December 2021, which is not consistent with evidence demonstrating that on multiple occasions the mother refused to comply with the 2019 Orders and dictated the children’s time with the father. The mother agrees that it was her practice to involve the children in making decisions about what time they would spend with the father. In cross-examination, the mother eventually conceded that she rejected the Court’s authority to make orders concerning the children’s time with the father because she considered that the 2019 Orders had been made “six months too early.” The mother said that she wasn’t prepared to follow the orders in that period. On 11 March 2020 when the children were four years and six years old respectively, the mother asked the children whether they would like to sleep at the father’s house and the children said they wouldn’t like it.
Counsel for the mother submitted that the children were not in a regular routine of spending time with the father after the 2019 orders. Given the mother’s attitude towards compliance with the 2019 Orders, I am satisfied that she obstructed the father in his efforts to spend time with the children pursuant to those orders. I am further satisfied, and find, that the father consistently sought to spend time with the children pursuant to the 2019 Orders, which included express provision to facilitate the children’s time taking into consideration his work commitments, against the background of his exceptional financial support of the children and the mother. The father was paying child support in accordance with the capped maximum amount, and he was paying for the children’s school fees, school uniforms, and extracurricular activities, along with all outgoings in relation to the former matrimonial home, where the mother and the children resided.
The father has demonstrated his capacity to meet the needs of the children, including as their primary carer over more than two years.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
Having regard to the notes of supervised time and communication between the children and the mother at LL Contact Centre, it is evident that both children have a warm and loving relationship with the mother, and each child delights in spending time and communicating with her. The mother has always been a devoted and loving parent to the children, even though she has not always been able to prioritise and meet their needs.
The children clearly long for a more natural relationship with the mother where they are able to spend time together with the mother in her home, and where they can enjoy activities with the mother and resume their enjoyable holiday activities with the mother and where the mother can be present at important school events.
I have determined that the children are not at an unacceptably high risk of harm if they live with the father and spend time with the mother. The benefits to the children of being able to resume their natural relationships with the mother outweigh the risk that the children will become aligned with the mother and reject the father. As the children mature, and with the counterbalances of the time that they spend with the father, they will most likely come see the mother’s negative comments for what they are, namely an unfortunate deficiency in the mother’s functioning.
I am convinced that the mother does not deliberately seek to harm the children, and that she loves them dearly and wants what is best for them. Although the mother is at a very early stage of accepting that her behaviour is harmful, I consider that she will continue to take steps to overcome her deficits so that the children can continue to have healthy relationships with both parents in the future. If the mother continues to criticise the father’s parenting choices, and restricts the children’s freedom to enjoy their relationships with both parents, then most likely the children will reject the mother, which would be a very sad outcome for the children.
I am satisfied that the children have very strong relationships with the father which have withstood the mother’s negativity.
History of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.[91]
[91] Subsection 60CC(2A).
In her Notice of Risk filed on 11 May 2023, the mother answered no to the question whether she or the other party had ever experienced family violence or are at risk of experiencing family violence. In her trial affidavit the mother alleged that the father was financially controlling during the marriage.[92] The mother’s evidence taken at its highest would not persuade the Court that father was financially controlling in his relationship with the mother, and there is plenty of evidence which demonstrates that, as the mother deposed, the father provided exceptional financial support to the children and the mother.[93]
[92] Mother’s affidavit Part 6, [57]-[68]
[93] Mother’s affidavit [25]
The evidence demonstrates that the mother frequently abused the father in the text messages which were exchanged between the parents from early 2018 onwards, calling him names including “fuckwit” and “cunt” and denigrating his parenting choices. It is evident throughout the text messages that the mother displays a high level of anger and animosity toward the father, which is never reciprocated by the father, who remains polite, calm and child focussed.
The large volume of text messages where the mother has verbally abused and denigrated the father leads me to accept the submission of Learned Counsel for the father, and I find, that the mother engaged in behaviour which constitutes family violence as defined in s.4AB of the Act, by her repeated derogatory taunts which were aimed at coercing or controlling the father to do as she dictated.
Provisional ADVO against Mr KK for the protection of the mother
In early 2025 the police sought an ADVO for a period of two years against Mr KK for the protection of the mother. The grounds for that application record that the mother and Mr KK have been in an intimate relationship for the past year and a half. There are a number of unreported incidents of family violence perpetrated against the mother by Mr KK, including an incident where Mr KK placed his hand over the mother’s mouth, around the time that she attended at a hospital for pain to her back after a physical altercation.
Mr KK is noted to be storing his belongings at the mother’s residence and is unemployed with no means of transport. In early 2025, during an altercation about Mr KK’s phone, Mr KK threw a glass bottle at the mother which smashed on the floor, and then threw a plastic box at the mother’s head which hit the mother in the side of her face. Police record that the mother feared for her safety. Mr KK then grabbed the mother momentarily by her throat, pushed her, and grabbed her phone from her back pocket. When the mother attempted to retrieve her phone from Mr KK, she was knocked to the ground. A neighbour called the police, after hearing the mother yell out and observing her on the ground with Mr KK standing approximately 50cm in front of the mother.
Police found a small amount of cannabis in Mr KK’s pocket, along with the mother’s gold watch and Mr KK’s wallet. The watch was returned to the mother and the cannabis was seized.
The mother has given inconsistent evidence to the Court concerning her relationship with Mr KK. In the mother’s trial affidavit filed on 28 August 2024, she says that she and Mr KK were still in a relationship around mid-2021 and that by mid-2022 she and Mr KK had broken up. The mother did not disclose that she and Mr KK had resumed their relationship.
It is evident that the children have communicated with Mr KK while in the mother’s care, using her phone, and directly to a phone which was saved under the name “[Mr KK]”. The children appear to have been used to communicating with Mr KK. In one screenshot from 27 August 2023, one of the children sent a message attaching a photograph of roller skates with the message:
I got roller skates from dad.
The reply comes back:
He’s trying to buy your love[94].
[94] Exhibit F2
It appears that Mr KK denigrated the father, and if it was not Mr KK using the phone styled “[Mr KK]” to communicate with the children, then it is further evidence of the mother’s denigration of the father.
The parents agree that the mother will be restrained from bringing the children into contact with Mr KK or having any communication with him, and for reasons discussed already I consider that it is appropriate for the personal protection of the children to restrain the mother from permitting the children to have any contact or communication with Mr KK.
Section 60CG of the Act requires the Court, when considering what parenting Order to make, to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
In considering what orders to make in the best interests of the children in this case, I have taken into account that Mr KK has allegedly perpetrated family violence against the mother, and I consider that it will be very damaging for the children if they are exposed to family violence due to the mother’s relationship with Mr KK.
As noted already, I will make an order for the personal protection of the children which restrains the mother by injunction from causing or permitting the children to have any contact or communication with Mr KK, which will ensure that the children are not exposed to an unacceptable risk of family violence.
Some of the restraints which the court will make with respect to the mother’s conduct are intended to ameliorate the risk that she will continue to perpetrate family violence by making repeated derogatory taunts to the father.
The live with arrangements for the children
The children have lived in the primary care of the father since early December 2022.
I reject the submission by Counsel for the mother that the change of residence for the children which was ordered in the November 2022 proceeding was not in the best interests of the children. It was in the long-term best interests of the children that their primary residence be changed. The children have benefitted from the opportunity to live in a stable household free from repeated denigration of their other parent, and to develop their important relationships with the father, without the mother hindering the children’s relationships by her highhanded and unco-operative approach to co-parenting. If the children had remained in the primary care of the mother, there was a high risk that they would suffer the psychological harms identified by the Court Child Expert, including the risk that the children might align themselves with the mother and develop loyalty binds, and the risk that they might become hypervigilant due to the impact of the mother’s belief systems. Fortunately, by moving into the primary care of the father those risks have been ameliorated to fullest extent possible, noting that the mother has continued to expose the children to her negative views of the father and to her strongly held and overvalued beliefs about health, diet and healthy living.
The children have thrived in the care of the father. They have a positive relationship with each of their parents. They have been protected from the risk of suffering short-term and long-term psychological harm due to continual exposure to the mother’s overvalued ideas, without the counterbalance of living in the primary care of the father. Moving into the primary care of the father has also protected the children from the risk of harm from being exposed to family violence and drug misuse in the mother’s household, due to the presence of Mr KK.
I accept submissions made by the father and on behalf of the Independent Children’s Lawyer that the mother demonstrates little genuine insight into her behaviour and the impacts on the children. The mother’s attitude to supplying the children with covert mobile phones remains that her conduct was understandable or necessary. Instead of demonstrating remorse for her longstanding denigration of the father, and for her failure to participate in the 2021-2022 proceedings, and for her choice to refuse to hand over the children to the father pursuant to the 2022 Final Orders, the mother continues to deflect responsibility onto the father because, she alleges without any proper foundation, that he has “a high conflict personality” and that her behaviour is a ‘reaction.”
Counsel for the mother has highlighted Dr HH’s comment that:
…it would likely have been in the best interests of the children should this change of primary residence have been able to be avoided”
With the greatest respect to Dr HH, and to Counsel for the mother, that comment is self-evident in the sense that the change of residence caused the children short-term emotional and psychological hurt and disrupted their settled routines. I am satisfied that the change of residence was a necessary response to the significant risks of harm to the children if they remained in the mother’s primary care. To be clear, it was very much in the children’s best interest to move into the primary care of the father, and the children have adapted to their changed circumstances and are now “accepting, if not content” living with the father. They continue to progress well in the father’s care on all key indicators, including academic, artistic, and social.
The mother has completed at least six parenting courses, and she has provided some evidence in her affidavit about what she has learnt, but nonetheless she has continued to make inappropriate comments to the children during supervised visits and Zoom sessions. On the afternoon of the third day of the trial, when the mother was still in cross-examination, she apparently reached out to her friend Ms RR, a psychologist and a witness for the mother, who recommended that the mother see Dr O at PP Centre.
It is positive that the mother has decided to engage with this service, and her ongoing engagement may bring about change for the benefit of the children. I accept the submissions made on behalf of the father and the Independent Children’s Lawyer that there is currently no credible evidence that the mother has gained sufficient insight for the Court to be confident that currently she is able to resist her impulse to involve the children in the parenting dispute and to try to undermine the children’s secure placement with the father, by denigrating the father and his parenting choices and exposing the children to her overvalued ideas.
I accept the submission of the Independent Children's Lawyer that there is no compelling reason for the Court to change the children’s living arrangements and place them with the mother. The children are settled with the father and have adjusted to being in his care. They are progressing well at school and are engaged in several extra-curricular activities. In my view the father’s parenting capacity is superior to the mother’s parenting capacity because he does not expose or subject the children to emotional harm by repeatedly expressing a negative view of the mother, and he is very supportive of the children’s relationships with the mother, and does not undermine the mother to the children. The children are accustomed to living in the father’s primary care for the past two years. The father has adequately met the children’s needs without the day to day assistance of the mother for more than 14 months.
I consider that it is in the best interests of the children that they continue to live with the father and will order accordingly.
The spend time arrangements for the children, including whether it is in the best interests of the children for the time that the children spend with the mother to be professionally supervised.
The father contends that to avoid emotional and psychological harm to the children, the only option is for their time and communication with the mother to be supervised. The father’s position is supported by the Independent Children’s Lawyer. The father and the Independent Children’s Lawyer draw upon the mother’s past and present behaviour to predict her future behaviour.
Whilst acknowledging the many positive attributes the mother brings to the children’s lives,[95] and that the children have expressed the view that they would like to spend as much time as possible with the mother, the Independent Children’s Lawyer submits that the “un-relentlessness” of her conduct in constantly criticising the father and his parenting choices presents a risk of harm to the children which is unacceptably high.
[95] Written Submissions of Independent Children’s Lawyer at [12].
The introduction of supervised time has not entirely prevented the mother from denigrating the father to the children and co-opting them into the parental conflict. There are indications in the notes of the supervised contact visits that the mother is attempting to manage her impulses.
There is a risk that any contact and communication between the children and the mother whether face to face or by telephone, and whether supervised or unsupervised, will expose the children to emotional and psychological harm, as already discussed.
The mother contends that an order for supervised time and communication between the children and the mother is a disproportionate response to the identified risks, and is otherwise not in the best interests of the children because such an order ignores the mother’s many positive parenting attributes, ignores the evidence of Dr HH that the children are resilient to the parental conflict, ignores the wishes of the children, and are extreme and unwarranted on the totality of the evidence, and that the mother does not present an unacceptable risk of harm to either child. Counsel for the mother submitted that the mother has demonstrated insight into the harmful impacts of her conduct, but I am not persuaded. It is true that, while still in cross-examination at the trial, the mother apparently accepted that she needs help to address her behaviour, but that concession came very late and there is no evidence that the mother has changed, and she still seeks to justify her response to the children’s circumstances by blaming the father and the Court.
I consider that there remains a risk that the mother’s harmful behaviour may continue and even escalate. That risk exists whether the children’s time with the mother is supervised or not. There is the risk of further litigation about the children’s parenting arrangements, whether the Court makes an order that the children’s time with the mother is supervised or not.
Most recently the children’s reactions, when the mother commented about their food choices, and made comments which denigrate the father and his parenting choices, have been consistent with Dr HH’s observation that the children may ignore or dismiss the mother’s comments. The younger child has sought to reassure the mother that she is able to make appropriate choices.
The mother’s negative comments to the children over many years have not undermined the children’s secure and loving relationships with the father. As the children continue to mature, and their relationships with the father are maintained by living in his primary care, the risk that the mother’s harmful comments will impact the children’s relationships with the father, or undermine the children’s self-esteem or create hypervigilance in the children most likely diminishes, and must be weighed against the risk to the children of having their relationships with the mother reduced to identity style contact under supervision. I am satisfied that the strength of the relationship that each child has with the father increases their resilience against the harmful effects of the mother’s conduct.
The children love the mother, and they are loved by her in return. The mother has a great affection for the children. The children will miss the mother if they do not spend significant time with her. They may struggle to understand why they cannot spend time with the mother at her home. If the children are distressed, they may blame the father, and this may have a negative impact on their close and beneficial relationships with him. The children may feel sad and resentful that their views have not been heard. They will miss out on the positive parenting qualities of the mother, and all the activities they share and enjoy when they are with her, and their childhoods will be greatly diminished by the loss of their meaningful relationships with the mother. I consider that significant grief and loss will be visited on the children if in the long term they are confined to spending contact with the mother once each month under supervision.
There is a risk that if the mother does not take decisive action to gain insight into the children’s needs and adequately address her own shortcomings, the children will become so inured to her unhelpful remarks that they may ignore and dismiss any advice she provides. That would be a huge loss to the children, because the mother has much to offer them. If both parents are able to provide advice to the children which respects the other parent’s views, and the children’s emerging autonomy, the children will learn to respect divergent views and learn how to manage conflict and make healthy choices.
If the court makes an order for supervision of the children’s time with the mother, the children may have respite from the intense parental conflict and from the loyalty demands which the mother places upon them, and they may have respite from the mother undermining their choices and the the father’s choices in relation to food and health, but as I have discussed already the benefits of supporting a potentially more peaceful and regulated environment for the children in the household of the father, must be weighed against the significant grief and loss which the children will suffer in the short and the long term.
On balance, I consider that the risks to the children of spending time in the unsupervised care of the mother, for defined periods of time, and subject to the restraints that the court will make to ameliorate the risks, and in circumstances where the children will have the stability, routine and counterbalances that the father provides, are not so unacceptably high as to outweigh the significant benefits to the children of spending time with the mother each alternate weekend, and during school holidays.
Given the timing of the delivery of these Orders and Reasons, I will order that the children’s alternate weekend time with the mother will commence on Friday 23 May 2025, which will give the father time to prepare the children for the changed arrangements, including to arrange for the children to meet with the Independent Children’s Lawyer, and the children’s counsellor if required. In the meantime, I would expect that the children will continue to spend supervised time with the mother and have supervised communication with her leading up to the changes.
Mother’s Day 2025 is only two days away and that is not enough time for there to be a child-focussed implementation of these Orders, and the Orders will therefore provide that from 2026 and each year thereafter the children will be with the mother for the Mother’s Day weekend.
Allocation of decision-making for major long-term issues relating to the children
Both parents and the Independent Children’s Lawyer agree that there is currently no prospect of the parents being able to successfully communicate with each other, and that an order which requires the parents to consult with one another and share decision making for long term issues would not be an order which is in the best interests of the children.
The parents clearly have very different approaches to parenting. An order for shared decision-making in relation to health would clearly be unworkable. There are multiple examples in the evidence where the parents’ divergent views about long term health issues have created conflict and negatively impacted the children. One example is the mother’s anti-vaccination stance as opposed to the father’s pro-vaccination stance.
There is a high level of mistrust between the parents. The mother’s beliefs and attitudes about the father and the court process, including her strongly held view that the father ought not have commenced parenting proceedings in 2021, and her view that the 2022 Final Orders were not in the best interests of the children, and her view that her choice to use verbal abuse and denigration in her communications with the father is justified militates against an order which would require the parents to make joint decisions about major long term issues for the children such as their health.
I have determined that the children will continue to live with the father and it is appropriate that the father have sole decision making. The father agrees to inform the mother of any major long-term decision he makes in relation to the children and that is entirely appropriate.
It will assist the mother to provide for the developmental, psychological, emotional and cultural needs of each child if she is kept informed of decisions made by the father in relation to the children’s education, health and extracurricular activities.
Passports and travel
The mother seeks a final parenting order which will permit the children to travel internationally with each of the parents.
The father seeks a final parenting order which will permit him to cause the children to travel outside of the Commonwealth of Australia and to obtain or renew a passport for each child.
Having regard to the evidence, and to the other parenting orders which the Court will make, I consider that it is in the best interests of each child to have a passport which is held by the father, and for each child to be able to travel overseas with the father or as permitted by the father. The father is a devoted and protective parent, who can prioritise the needs of the children, whereas the mother has at times prioritised her needs over the children’s needs.
There is no unacceptable risk of harm to the children if they are permitted to travel internationally with the father or in accordance with any decision he makes in relation to overseas travel for the children while they are minors.
The situation with respect to the mother is not as straightforward. I must consider the safety of the children when concluding what order is in the best interest of the children. The mother has at times prioritised her anger towards the father over the children’s needs as already discussed at some length and in doing so she has subjected and exposed the children to denigration of the father, which is potentially harmful to the children. It seems that while ever the children are able to remain predominantly in the care of the father they are somewhat inured to the harmful effects of the mother’s conduct, but if they were to be taken overseas by the mother in circumstances where there opportunities to communicate with the father are limited by distance and circumstance, then the impacts of the mother’s conduct may be more harmful to them.
The mother belatedly acknowledged during the trial that the Dunning-Kruger effect diagnosed by Dr JJ, which operates to impair the mother’s insight and negatively impacts her parenting capacity, needs to be addressed and she expressed to the court that she intends to engage in counselling to assist her to manage and overcome her impairment. There is no evidence currently that the mother has overcome the impairment and until she is able to demonstrate that she has adequately addressed this issues I consider that the children are safer if they do not spend time with the mother far away from the father in a foreign country.
In the fullness of time, it may be appropriate for the children to travel overseas with the mother, but I cannot be satisfied on the current state of the evidence that overseas travel with the mother is in the children’s best interests.
It is appropriate to leave it up to the father, in the exercise of his sole responsibility for decision making, to decide whether it is in the best interests of the children, or either of the children, to travel overseas with the mother at some time in the future and the father may provide his written consent for such travel if he considers that it is appropriate and in the best interests of the children.
Independent Children’s Lawyer to meet with children
The Independent Children’s Lawyer proposes an order that she meet with the children to explain the parenting Orders to them. Neither parent made any submission in relation to this proposal.
I consider that the Independent Children’s Lawyer should meet with the children to explain the final orders to them, to assist the children to understand the parenting arrangements and provide whatever reassure the children might require, including answering any questions that the children may have relating to their parenting arrangements.
COSTS
Costs of the Independent Children’s Lawyer
The Independent Children’s Lawyer in their Minute of Order proposes that the mother and father each pay to the Legal Aid Commission NSW the sum of $6,686.18, being their respective one-half share of the costs of the Independent Children’s Lawyer, within 6 months of the date of the final orders, unless an exemption or wavier is obtained.
There were no submissions made by or on behalf of either of the parents in relation to the application for costs by the Independent Children’s Lawyer.
The Independent Children’s Lawyer relies upon their Costs Notice filed on 3 December 2024. The Independent Children’s Lawyer submits that the parents are privately funded, and their respective Costs Notices demonstrate that each has paid significant sums in legal fees.
In the exercise of the Court’s discretion whether to make an order for costs, the relevant starting position is Section 117(1) of the Act which provides:
(1)Subject to subsection (2)… each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
The Court is required to consider whether there are justifying circumstances to make an order as to costs. Section 117(2A) of the Act provides that when considering what order, if any, should be made under subsection (2) the court shall have regard to the following matters:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
No one factor in s.117(2A) of the Act prevails over any other factor in that section. The weight to be attributed to each relevant factor is a matter for the Court in the exercise of discretion.[96] There is nothing to prevent any one factor in s.117(2) from being the sole foundation for a costs order.[97]
[96] Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 at [24]; (2015) FLC 93-664.
[97] Fitzgerald v Fish [2005] FamCA 158.
I consider pursuant to s. 117 (2A) (b) and (g) of the Act that neither parent is in receipt of a grant of legal aid in respect of the proceeding and that there is no evidence that a party to the proceedings would suffer financial hardship if they had to bear a proportion of the costs of the independent children's lawyer.[98]
[98] S.117 (4) (b) of the Act
I consider that in this case it is just to make an order that each of the parents pay a one half share of the outstanding costs of the Independent Children’s Lawyer, fixed in the sum of six thousand, six hundred and eighty six dollars ($6,686) each.
The parents may not have the funds readily available to meet the costs order but, as discussed, impecuniosity is not a bar to making an order for costs, and the court will order that each parent has six months within which to make the payment, which will likely be sufficient time for them to raise the required sum. Further, if either or both parents are eligible for an exemption or a waiver from Legal Aid New South Wales, the order makes provision for such exemption of or waiver to apply.
Costs application by each parent against the other parent
Each parent sought an order for costs against the other parent. There were no submissions made by or on behalf of either parent at the trial about the issue of costs.
If either parent presses their application for costs against the other parent, then an application may be made to chambers within 28 days of these Orders, accompanied by a proposed timetable for filing of written submissions, without the need for appearances unless there is a formal request received within 28 days hereof to relist the matter to consider the question of costs.
CONCLUSION
I am satisfied that the Orders at the forefront of these Reasons are in the best interest of each child.
I certify that the preceding three hundred and one (301) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 9 May 2025
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