Paulsen & Paulsen (No 2) - [2025] FedCFamC2F 7

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulsen & Paulsen (No 2) [2025] FedCFamC2F 7

File number(s): CAC 1710 of 2022

Judgment of: JUDGE MANSFIELD

Date of judgment: 10 January 2025

Catchwords: FAMILY LAW – PARENTING – Final Orders – One child 10 years old – Where the mother has relocated three hours away – Where both parties have significant and unaddressed mental health vulnerabilities – Where child at risk of harm in care of either parent but benefits from her relationship with both parents – Child to remain living with the father and spend regular time with the mother – ICL to remain appointed for 12 months with liberty to apply to ensure the child’s diagnostic assessment and treatment and to mitigate against either parent’s non-compliance.

Legislation: Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 60CG, 61B, 61D, 61DAA & 117

Cases cited:
Paulsen & Paulsen [2024] FedCFamC2F 1193

Taylor & Barker [2007] FamCA 1246; (2007) 214 FLR 433

Division: Division 2 Family Law

Number of paragraphs: 131

Date of hearing: 26-30 August and 12-13 September 2024

Place: Canberra

Solicitor for the Applicant: Brightstone Legal

Counsel for the Respondent: Mr Bateman

Solicitor for the Respondent: Baldock Stacy and Niven Solicitors

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

CAC 1710 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAULSEN

Applicant

AND:
MS PAULSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

10 JANUARY 2025

THE COURT ORDERS THAT:
1.All previous parenting orders concerning X born in 2014 ('X') be discharged.

The Independent Children’s Lawyer
2.The Independent Children's Lawyer shall remain appointed for a period of 12 months from the date of these orders whereafter the ICL is discharged.
3.The ICL is at liberty to make enquiries of either parent with respect to the operation of these Orders and any enquiry from the ICL is to be responded to by the respective parent in writing within three business days.
4.The ICL may provide a copy of these Orders to any person or organization providing educational or health services to X and is authorized to receive any and all information about the service to which they have or are intending to provide.
5.The ICL (and not the parents) have liberty to seek to relist the matter, on 4 days’ notice to the parents, with respect to the operation of these Orders.

Parental Responsibility
6.The father is solely responsible for all major long-term issues and decisions concerning X.
7.In relation to decisions pursuant to Order 6, the father is to:
(a)Inform the mother in writing about any decision to be made as soon as possible along with his views;
(b)The Mother may respond to the father within five days advising of her views on the particular issue;
(c)The father must generally consider any views expressed by the mother;
(d)The Father is to advise the mother in writing of any such decision once made.

8.Despite Order 6, the parents are to have joint decision-making responsibility with respect to any changes to X's living arrangements that make it significantly more difficult for X to spend time with the mother.
9.Despite Order 6, the father is restrained from changing X's school from C School in City D until she completes Year 6 and transitions to High School.

Lives With
10.X is to live with the father.

Spends Time With
11.Where the mother remains living more than 50kms from X's school, X is to spend time with the mother as agreed between the parents in writing, but failing agreement:
Term Time:
(a)During school terms and commencing on the first Friday of each school term and each alternate weekend thereafter, from 7:00pm on Friday until 7:00pm on Sunday; and

School Holiday Time:
(b)For half of each end of term school holiday period as follows:
(i)For the end of Terms 1 and 3 for the first week in all even years and for the second week in all odd years;
(ii)For the end of Term 2 for the second week in all odd years and for the first week in all even years;
(iii)With time occurring in the first week to commence at 7:00pm on the last day of school and conclude at 7:00pm on the middle Sunday; and
(iv)With time occurring in the second week to commence at 7:00pm on the middle Sunday of the school holiday period and conclude at 7:00pm on the last Sunday.

(c)For one half of each end of year school holiday period as follows:
(i)For the first half in 2024/2025 and each alternate year thereafter and for the second half in 2025/2026 and each alternate year thereafter.

Special Days
12.In the event Mother's Day falls on a weekend when X is not already in the mother’s care, X shall spend time with the mother on the Mother's Day weekend in lieu of the next weekend X was due to spend time with the mother NOTING THAT this will not otherwise change the pattern of alternating weekends.
13.In the event Father's Day falls on a weekend when X is not already in the father’s care, X shall remain with the father on Father's Day weekend in lieu of the next weekend X was due to remain with the father when she shall spend time with the Mother NOTING THAT this will not otherwise change the pattern of alternating weekends.
14.Notwithstanding any other orders, on X's birthday:
(a)If the birthday falls on a school day, X shall have electronic communication with the non-caring parent for no more than 30 minutes at 7:00pm; and
(b)If the birthday falls on a non-school day and the mother provides the father with no less than 7 days' written notice of the same, the mother shall spend time with X in the Town E/City D area for up to 4 hours at a time to be agreed between the parents in writing but, failing agreement, from 3:00pm to 7:00pm.

Changeover
15.For the purposes of changeover:
(a)The father shall deliver X to City F at the commencement of X spending time with the mother, with changeover to take place at 7:00pm at McDonalds located at G Street, in City F, NSW: and
(b)The mother shall deliver X to Town E/City D, NSW, at the commencement of X returning to the father, with changeover to take place at 7:00pm at the Mobil Service Station located at H Street, Town J, NSW.

Spends Time With – Where the mother lives within 50km of X’s School
16.If the mother relocates to live within 50 kms of where X attends school:
(a)Term time at Order 11(a) is varied to be:
(i)During school terms and commencing on the first Friday of each school term and each alternate weekend thereafter, from the conclusion of school or 3:00pm on Friday until the commencement of school or 9:00am Tuesday; and

(b)Special Days at Orders 12, 13 and 14 are varied to be:
(i)Notwithstanding any other orders, X shall spend time with the mother on Mother's Day from 9:00am to 4:00pm and with the Father on Father's Day from 9:00am to 4:00pm; and
(ii)Notwithstanding any other orders, on X's birthday:
A.If the birthday falls on a school day, X shall spend time with the non-caring parent for 2 hours from the conclusion of school or 3:00pm to 5:00pm;
B.If the birthday falls on a non-school day, the non-caring parent shall spend time with X for up to 4 hours at a time to be agreed between the parents in writing but, failing agreement, from 3:00pm to 7:00pm.

(c)Changeover at Order 15 is varied to be:
(i)Where changeover is to occur at X's school, the mother shall collect X from school at the commencement of her time with X and deliver X back to school at the conclusion of her time with X; and
(ii)Any changeovers not occurring at X's school shall occur at the City D McDonalds K Street, City D NSW.

Communication
17.X shall communicate with the parent she is not otherwise living with or spending time with every second day as follows:
(a)at 5.30pm for no longer than 30 minutes;
(b)with the parent X is living with or spending time with to facilitate X's FaceTime calls with the other parent;
(c)and that parent to thereafter allow X to conduct that call in private, without supervision; and
(d)each parent is restrained by injunction from recording X's communication with the other parent.

18.In addition, should X express a wish to speak to either parent at any other reasonable time, the parent X is with shall facilitate X contacting the other party via electronic means.

Sharing of Information
19.Subject to emergencies, or short logistical messages around changeovers (for example 'running 10 minutes late' or 'X forgot her toothbrush') which may be by text message, the parents are to communicate only through an agreed parenting app and failing agreement, the Talking Parents app.
20.Each parent is to inform the other as to the name and contact details of any doctor, medical practitioner or similar professional that consults or treats X and these orders shall act as authority for each parent to obtain all information about X that is ordinarily released to parents from any doctor, medical practitioner or similar professional that consults or treats X.
21.Each party is hereby authorised to obtain from X's school all notices, letters, school reports, photographs and other documents pertaining to X's education and attend any parent/teacher interviews and other events to which parents are invited.
22.Each parent shall inform the other parent of any serious medical condition, significant health issue or illness suffered by X as soon as reasonably practicable and in any event within twenty-four (24) hours and in the event X attends hospital for any illness or injury the other parent shall be notified within two (2) hours including via SMS or telephone call.

Injunctions
23.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of X, the mother by way of injunction is restrained from permitting X to be in the sole care of Mr L.
24.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of X, the father and the mother are by way of injunction restrained from:
(a)Abusing, belittling, rebuking or otherwise denigrating the other parent or their partner or family with or in the presence or hearing of X, or permitting any third party to do so; and
(b)Discussing these proceedings or the contents of any documents filed or intended for use in these proceedings to, with or in the presence of X or permitting any other person to do so;

AND IT IS NOTED that, pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for the personal protection of X in the preceding Order have been breached.

Counselling and Treatment – X
25.Notwithstanding any other order/s the father, within 7 days, is to:
(a)do all things necessary to ensure that X can attend counselling at C School; and
(b)provide evidence of the same to the mother and the Independent Children's Lawyer.

26.Notwithstanding any other order/s, the father, within 9 months, is to:
(a)facilitate X undertaking and completing all of the relevant assessments for both Attention Deficit/Hyperactivity Disorder ('ADHD') and Autism Spectrum Disorder ('ASD'); and
(b)provide to any paediatrician or psychologist or other treatment provider assisting X with copies of:
(i)these orders and Reasons for Judgment;
(ii)the Clinical Report (Family Evaluation) of Dr M dated 15 September 2023; and
(iii)the Psychological Evaluation and Risk Assessment of Dr M of each of the mother and father dated 15 September 2023; and
(iv)the Updated Report (Family Evaluation) of Dr M dated 9 August 2024; and

(c)obtain formal reports for the same; and
(d)provide those reports to the mother and the Independent Children's Lawyer.

27.The father is to ensure X's continued attendance upon her General Practitioner and Paediatrician as may be recommended by the GP and/or Paediatrician.

Courses and Treatment – Father
28.Forthwith, the father shall enrol in and complete the N Program post-separation parenting counselling provided by O Centre and provide evidence of completion of the same to the mother and the Independent Children's Lawyer.
29.Forthwith, the father shall do all things necessary to attend treatment of the sort recommended for him by Dr M at paragraph 124 b. of her Psychological Evaluation and Risk Assessment of the father dated 15 September 2023 including as follows:
(a)Forthwith attend upon his General Practitioner and provide that General Practitioner with a copy of the Psychological Evaluation and Risk Assessment of the father dated 15 September 2023, the Updated Report (Family Evaluation) of Dr M dated 9 August 2024, these orders and the Reasons for Judgment;
(b)obtain a Mental Health Care Plan and referral to an appropriate psychiatrist;
(c)attend upon that psychiatrist as soon as is possible and provide them with a copy of the same documents;
(d)comply with all reasonable directions and recommendations made by the treatment provider including as to treatment and/or medication; and
(e)provide evidence of the same to the mother and the Independent Children's Lawyer.

Courses and Treatment – Mother
30.Forthwith, the mother shall do all things necessary to attend treatment of the sort recommended for her by Dr M at paragraph 1 on page 31 of her Psychological Evaluation and Risk Assessment of the mother dated 15 September 2023 including as follows:
(a)forthwith attend upon her General Practitioner and provide that General Practitioner with a copy of the Psychological Evaluation and Risk Assessment of the mother dated 15 September 2023, the Updated Report (Family Evaluation) of Dr M dated 9 August 2024, these orders and the Reasons for Judgment;
(b)obtain a Mental Health Care Plan and referral to an appropriate clinical psychologist;
(c)attend upon that clinical psychologist as soon as is possible and provide them with a copy of the same documents;
(d)comply with all reasonable directions and recommendations made by the treatment provider including as to treatment and/or medication; and
(e)provide evidence of the same to the Father and the Independent Children's Lawyer.

Family (Dyadic) Therapy
31.Each of the parents shall attend therapy of the sort contemplated by Dr M at paragraph 166 d. and e. of her Clinical Report (Family Evaluation) dated 15 September 2023 together with X (but separately from each other) and as follows:
(a)With an agreed therapist and failing agreement, as specified by the ICL;
(b)With each party to ensure that they and X attend upon the therapist as recommended;
(c)with the parents to follow the recommendations made by the therapist/s including facilitating the participation of X in therapy; and
(d)with the parents to pay for any sessions that they personally attend with X and if X attends alone, to equally share the costs of any therapy sessions involving X.

International Travel
32.Each parent is permitted to travel internationally with X during their respective ordered time with her, upon providing the other parent with no less than 28 days' (prior to the departure date) written notice of:
(a)the intended destination/s;
(b)the intended departure and arrival dates and flight details;
(c)copies of travel insurance for the travel period; and
(d)a phone number at which the non-travelling parent can contact X.

33.Each parent is not permitted to travel with X to any area or country which is designated advice 'Level 3' or higher on the SmartTraveller website maintained by the Australian Government.
34.The father is permitted to obtain or renew any Australian travel document without the consent of the mother.
35.The father is to have possession of X's passport but is to release it immediately to the mother upon being given notice of the mother's intention to travel pursuant to these Orders.

Application in a Proceeding dated 11 September 2024
36.Within 28 days, the father is to pay the mother's costs with respect to:
(a)The Application in a Proceeding dated 23 April 2024, fixed at the amount of $2,093.62; and
(b)The Application in a Proceeding dated 9 August 2024, fixed at the amount of $2,093.62.

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 MANSFIELD:

The Applicant father is 58 years old. He has two children in their early thirties from a previous relationship.
The Respondent mother is from Country Q and is 32 years old. In late 2012, the parties met on the internet. The mother came to Australia a month later on a three-month holiday Visa and they commenced a relationship. The father was 46 and the mother was 20 years old. They married in 2013.
X was born in 2014 and is now 10 years old.
In mid-2014, the parties moved from Suburb P in the greater Sydney area to Town R which is a rural setting in NSW just outside of the greater City B area.
It was a predominantly unhappy and antagonistic relationship with frequent arguments that X was often exposed to. Each party alleges family violence perpetrated by the other.
In mid-2022, the mother and X returned from a trip to Country Q and the next day the mother moved out, taking X to her sister’s place in City F, NSW. X was 7 years old.
In September 2022, the father commenced proceedings and in November 2022 orders were made by consent for X to return to living at Town R with the father.
The father wants final orders which provide for X to remain living with him and spend time with the mother on alternate weekends and during school holidays.
The Mother remains living in City F NSW which is approximately three hours’ drive from Town R. The mother wants X to live with her and spend time with the father on alternate weekends and during school holidays.
They both want sole responsibility for making decisions about major long-term issues in relation to X.
THE APPLICANT FATHER’S CASE
The father commenced proceedings on 8 September 2022 seeking a recovery order, for X to live with him and to spend time with the mother for the first weekend each month from 4pm Friday to 4pm Sunday in City F with changeover to occur at Town S, NSW.
In the accompanying Notice of Risk, the father expressed significant concerns about the safety and wellbeing of X in that X will continue to be subject to the mother’s fluctuating moods and angry outbursts and her negative, critical and abusive behaviour towards the father.

The Amended Initiating Application filed on 2 September 2023 sought leave to particularise the final orders sought “following attendance at a Child Inclusive Conference and further dispute resolution.”
Contrary to trial directions, the father did not file any Amended Initiating Application setting out with particularity the precise final orders sought. The father failed to file a Case Outline Document.
On the evening of trial, the father filed an Amended Initiating Application which sought orders including that:
(a)He have sole parental responsibility for X;
(b)X live with him;
(c)X spend time with the mother:
(i)Every second weekend from 7pm Friday to 7pm Sunday; and
(ii)Half of all school holidays;
(d)Changeover occur at City F and Town J for the respective commencement and conclusion of time with the mother;
(e)There be electronic communications every Tuesday and Thursday at 7:00pm;
(f)The parents communicate by email or text message;
(g)The mother complete a behavioural change program;
(h)The father be responsible for obtaining any counselling for X.
Under cross-examination by the ICL, the father deposed:
I want the protection of [X]. I want [X] to be, kind of – I want [X] to have – I want [X] to have a meaningful relationship. I’m not trying to take the mother away from [X]. I – I want [X] to have a meaningful relationship, but that’s going to have to be guided and – and some things are going to have to be done and put in place. But I just want – I want to be able to ensure that [X] grows up mentally and – and physically unharmed and grows into a decent – well, I mean, a good person and – how do you put it. A good person who does everything properly and has – and has the manners and – and doesn’t have the swearing.
THE RESPONDENT MOTHER’S CASE
By her Amended Response filed 13 August 2024, the mother sought final orders including that:
(a)She have sole parental responsibility for X;
(b)X live with her in City F;
(c)X spend time with father:
(i)For the first weekend each month from after school Friday to 4pm Sunday in the City F area with changeover to occur at McDonald's City F; and
(ii)For the third weekend each month from after school Friday to 4pm Sunday with changeover on Sunday to occur at Town S; and
(iii)For all of the Term 3 holidays; and
(iv)For half of the Term 1, term 2 and end of year school holidays; and
(v)During the Easter period;
(d)There be electronic communication every Monday, Thursday and Sunday between 5:30pm and 6:30pm;
(e)The parents communicate by email or text message.
The mother did not file a Case Outline Document in accordance with the trial directions. A Case Outline Document was filed at the commencement of the hearing limited to the documents sought to be relied on at hearing and a chronology.
The mother deposed in her affidavit filed 26 August 2024:
312. As [X]'s mother I would like her to have happiness, a bright future and good health. I will do my very best to give [X] a good life. From the time I was pregnant with [X], I promised myself that she would never experience poverty. I want to be able to give her all of the things that I never had when I was a child.
THE INDEPENDENT CHILDREN’S LAWYER’S CASE
By her Case Outline Document filed on 24 August 2024, the ICL contended that:
(a)Both parents present significant risk to X, particularly in relation to their capacity to emotionally self-regulate, their inability to shield X from the ongoing conflict between them and their inability to meet X's psychological and emotional needs.
(b)X will be aged 10 years as at the date of trial. She has expressed an overall view to the Expert Witness that she would prefer to remain living in Town E with the father. The ICL has met with X on one occasion in November 2022. The ICL requested to meet with X again prior to trial but that did not occur.
(c)It is likely that each party can meet X's basic physical needs but that neither party at this time is likely meeting X's developmental, psychological or emotional needs.
(d)The independent evidence suggests that neither party has had capacity to take any responsibility for their own actions and has engaged in villainising the other - the father to the mother in particular. Neither party has had much - if any - capacity to prioritise X amongst the conflict.
(e)Despite their allegations as to risk to X in the care of the other, the parents appear to agree that X should have a relationship with and spend time with the other.
The ICL submitted in their written submissions filed 11 October 2024:
55. The most significant issue in this matter, is the mental health and personality vulnerabilities of each of [X]'s parents. Those issues underscore the parties conduct in relation to each other both during their relationship and post-separation, their conduct in the proceedings and their parenting of [X]. In the Father’s case, his past psychiatric issues and his current mental health and personality issues have permeated the majority of his filed material as well as his oral evidence. Such issues leave the impression of the Father being utterly uncontained in his manner, grandiose and insightless and pathologically hyperfixated on the Mother being the source of all of the issues in the matter and an unacceptable risk to [X].
…
62. The Mother, under cross-examination, largely accepted [Dr M]’s evidence about her mental health and personality deficiencies.
…
64. The Mother indicated she would consent to an order that she engage in further intensive therapy of the sort suggested by [Dr M] and to focus on her Cluster B traits.
65. The Mother gave evidence that she did not have a mental health diagnosis and that she was not prescribed nor taking any medication.
…
113. [Dr M] has conducted extensive and detailed investigations into this family for the purposes of determining what is in [X]'s best interests. [Dr M] has met with each party on at least 3 occasions including to conduct detailed psychological assessments, has met with [X] twice and conduction two interviews with [X] and two sets of observations between [X] and each parent. Her analysis of each party’s position in the proceedings is detailed, logical and compelling. When considered in light of the parties filed and oral evidence and the material produced to the Court as Exhibits, her explanations, particularly of each party’s behaviour is highly compelling.
114. [Dr M] gave evidence that given the concerns in this matter, her conclusion that [X] should remain living primarily with the Father was not reached easily and was by the barest of margins. In view of the balance evidence given by [Dr M], the Court should be extremely hesitant in making a decision inconsistent with her evidence.
Ultimately, the ICL filed a Minute of proposed Final Orders including that:
(a)The parents have joint parental responsibility and joint decision-making responsibility;
(b)That X live with the father;
(c)If the mother remains living in City F, then X spend time with her:
(i)During school terms on alternate weekends from Friday to Sunday; and
(ii)For all of term 1 and 3 school holidays, for one week in term 2 school holidays and for one half of the end of school year holiday period.
(d)If the mother lives within 50km of X's school, then X spend time with her:
(i)During school terms on alternate weekends from Friday to Tuesday; and
(ii)For one half of all school holiday periods.
(e)The ICL remain appointed for a further 12 months;
(f)The father facilitate X undertaking assessments;
(g)The father complete a parenting course, psychiatric assessment and comply with treatment;
(h)The mother complete a parenting course, psychological assessment and comply with treatment;
(i)The parents and X undertake family therapy.
THE HEARING
Trial directions were made on 25 March 2024. The matter came before me for final hearing commencing on 26 August 2024 with an estimate of four days. Both parties had filed an extraordinarily large amount of material for hearing. Neither party complied with the dates set out in the trial directions, especially the father. Both parties re-filed their trial affidavits on the first day of the hearing because despite the earlier version already being extraordinarily large, they were still missing annexures. Pursuant to Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the filing of both party’s material was of no effect, especially the father’s material.
Prior to the commencement of the hearing, Orders issued from chambers directing the parties to consider:
(a)Some proposed agreed facts; and
(b)What was not in issue; and
(c)What was in issue; and
(d)Which affidavits were objected to pursuant to Rule 1.33 and what applications for relief pursuant to Rule 1.34 were anticipated; and
(e)Which paragraphs and annexures to their respective affidavits where relevant and the issue they pertained to; and
(f)Which witnesses were required for cross-examination.
The balance of day one was spent by the parties responding to these orders. (Day one was also spent by the Court hearing another matter also listed for final hearing that day).
At the commencement of day two, issues arose about the legal representation of the father leading to an oral application by counsel for the father to withdraw which was granted. An application was then made by the solicitor for the father to adjourn the hearing and in the alternative for him to withdraw. Those applications were refused. By 1.02pm, the hearing proceeded with the presentation of the applicant father’s case.
The father was cross-examined by counsel for the mother for the balance of day two and into day three. The father was cross-examined by the ICL for the balance of day three.
Re-examination of the father commenced and concluded on day four, determinations were made as to the affidavits of other witnesses in the father’s case and orders were made about the video and audio files referred to in the father’s affidavit. At 10.35am, the solicitor for the father made an oral application for an adjournment of the hearing which was granted. See Paulsen & Paulsen [2024] FedCFamC2F 1193. The matter was adjourned part heard before me with an estimate of a further two days.
Days five and six were heard on 12 and 13 September 2024. Final written submissions were received on 25 October 2024.
Attached at Schedule A is the table of Exhibits.
CREDIT
By their evidence in chief, both parties were decidedly determined to attack and undermine the credit of the other in their misguided attempts to elevate themselves and have their evidence preferred over the other’s. Such an approach is consistent with the vulnerabilities that each party presents with.
As in most cases, contemporaneous and independently created documents command greater weight than the parties’ lay opinions. There is ample evidence beyond the parties’ negative opinions and recollections of each other on which to make findings. This is not a case where drawing adverse inferences against either party on the basis of credit findings is either useful or necessary and I do not do so.
ISSUES
The issues in dispute, expressed as questions are:
(1)What is the history of family violence between the parents?
(2)What risk, if any, does the father pose to X, and what means, if any, are available to mitigate such risks?
(3)What risk, if any, does the mother (and her household) pose to X, and what means, if any, are available to mitigate such risks?
(4)What are X's needs?
(5)What are the parenting capacities of each parent, and what is their ability to meet all of X's needs?
(6)What is the likely impact on X of each party’s proposal?
Ultimately, the primary issues requiring determination by way of final orders are:
(1)Who should have responsibility for making decisions about major long-term issues; and
(2)What should X's living and time arrangements be.
What is the history of family violence between the parents
The chronology of events is action packed. Let alone the frequent and intense arguments, since their marriage in 2013:
(a)In mid-2013, the mother made reports to police after which a FVO issued against the father.
(b)In 2013, the mother moved to City T to live with her sister and did not move back until after the birth of X.
(c)In mid-2014, the mother was charged with common assault of the father to which she pleaded guilty. Her position at this hearing was that she denied the conduct and explained her plea as not understanding the process and wanted to finalise the matter as quickly as possible.
(d)In mid-2014, an FVO issued against the mother. The mother applied for, then revoked an FVO against the father.
(e)In 2014, the mother moved with X to Town U to live with her sister until moving back in early 2017.
(f)The mother alleged that from 2020 the father's abuse increased. There are mutual allegations throughout of verbal arguments occasionally escalating to physicality.
(g)The mother made allegations of the father pursuing affairs with other women and perhaps girls based on circumstantial evidence.
(h)In mid-2022, the incident precipitating final separation occurred, where the police attended and a FVO was issued against the father. Consequential to the police attendance and their observations, the father was charged and convicted of firearms offences.
(i)By October 2022, the mother had commenced communicating with her now present partner Mr V.
(j)Between December 2022 and February 2023, the father unilaterally withheld X and did not facilitate any contact citing safety concerns around the mother's new partner.
(k)In April 2023, the father again withheld X and stipulated that time would only be supervised and in City B.
(l)In May 2023, there were messages between the parties which, bizarrely, included prospects of resuming the relationship.[1]
(m)The father withheld X from May 2023 to September 2023, still citing safety concerns around the mother's new partner and her environment generally in the mother's care in City F.
(n)Contravention applications filed by the mother in June 2023 and by the father in July 2023 were later dismissed by consent.
(o)Ongoing disputes over child support and assessments.
[1] Annexure N to the mother’s affidavit filed 26 August 2024
There are serious incidents amongst the above. The kind that could usually be relied on by one party or the other to significantly influence or even define the final outcome. However, that is not the case here. Instead, the type and quantum of incidents is indicative of the party’s incapacity to relate or co-operate and their propensity to instantly revert to accusations and escalations.
Both parties engaged in violent and threatening behaviour. I do not find that there is a history of family violence as between them in the sense that neither party was seeking to coerce or control the other in an ongoing and perversive way. Rather, they were in a diabolical and psychologically incompatible relationship where:
(a)The mother sought a lot more from the relationship physically, emotionally and financially than what the father was ever willing or able to provide which led to quite severe outbursts from the mother; and
(b)The reality of the prevailing circumstances meant that there was a power differential in the husband's favour which he coveted and which fuelled the mother's outbursts.
Further, neither party seemed to be genuinely fearful of the other. Rather, they seemed more fearful of being held to account or perceived as wrong with respect to their behaviour within the relationship. Nevertheless, from X’s perspective, the frequency and intensity of argument that she was exposed to amounts to exposure to family violence perpetrated by both of her parents against her.
The expert observed the improvement in the mother’s state generally since moving away from the father. Despite X’s exposure to family violence, she maintains a beneficial relationship with each of her parents. The expert reported that her observations of the relationship between X and her father and between X and her mother were unremarkable.
What risk, if any, does the father pose to X, and what means, if any, are available to mitigate such risks
The father’s mental health
The expert, in the updated Family Report dated 9 August 2024, identified problematic personality factors relating to the father as:
12. b. [Mr Paulsen] invalidated his psychometric screen and as such, this was not available to corroborate the remaining data. ‘I identified Cluster B traits in [Mr Paulsen]’s presentation which contribute to his emotionally heightened state, some of which I witnessed on the day of assessment. Traits I identified as present in [Mr Paulsen] include: intense emotions, dramatic or erratic behaviours, unstable and volatile relationships, challenges finding effective treatment, interpersonal aggressiveness, disregard for rules, exploiting others, and traits that cause distress and impairments among those affected… These traits are important to understand in the context of ongoing interpersonal dynamics and how they are likely to impact his relationships with [Ms Paulsen] and [X] in the future’.
It was also evident from his oral evidence that the father is opposed to taking medication and considers himself the premier authority on his own mental health. On a number of occasions, the father has been provisionally diagnosed with mental health conditions but wherever a professional has recommended or attempted to engage the father with a thorough diagnostic process it has never eventuated. The father says there are circumstances in each case as to why and seeks the Court to infer that he is not against any diagnostic or therapeutic process as to his own vulnerabilities. I reject that and instead infer that he has engineered the circumstances to ensure that he has avoided any definitive diagnostic process and any therapy he has engaged in has not been genuine. I find that his reasons for doing so are twofold:
(a)Firstly, because he genuinely believes that he is the premier authority on his own mental health. He seeks to prop up his own opinions by referencing his qualifications (such as doing a drug and alcohol counsellor's course by W Centre in 1987) and referencing the counselling services he has provided to young people in the past.
(b)Secondly, because he does not want any diagnosis to be made until the proceedings are over (or at all) because it would be used against him.
In the Psychological Evaluation & Risk Assessment of Mr Paulsen dated 15 September 2023, the export reported:
95. [Mr Paulsen] presents as fixated on denigrating and blaming [Ms Paulsen] for the failures in their marriage, and this certainly presents on a level which is undoubtedly pathological at this time. This would, in my view, entirely impact his capacity to promote a meaningful relationship between [X] and her mother in the future.
And in the updated Family Report dated 9 August 2024:
82. ... [Mr Paulsen] remains steadfast in his views – at least in the court filed material - that [Ms Paulsen] is emotionally destructive to both himself and [X]. He has gone to extraordinary lengths in his bid to ‘prove’ that [Ms Paulsen] is mentally unwell and a danger to [X] in his court filed material. In a somewhat contradiction, however, at the time of interview he stated that he wishes for [X] to have a relationship with her mother and even hopes they can reach a flexible working agreement with time share for [X] in the months and years ahead.
…

The father’s fixation on blaming the mother was evident in his oral evidence where he deposed:
… I’m hoping that the truth comes through on the mother’s behaviour and the concerns and the fears that if [X] is living with her mother will be a damaged little girl.
…
… I am concerned that going forward, [X] – and I’ve seen the way that [Ms Paulsen] gets heightened. I know what creates that heightenment, and I know what creates the level of where she just completely loses the plot and – and hurts people. And I am really concerned that that will continue on past here. I’ve seen the – the – the mental abuse, the physical abuse, the carry on. It’s still continuing to today, and it continued last night.
The mother sought to prove that the father abuses alcohol which fuels aggression and violence to which the father denied absolutely. There is evidence that there probably has been excessive use of alcohol by the father at times but it is not presently a feature of the father’s presentation and the issue lacks cause for concern relative to the other aspects of this case.
Findings as to risks posed by the father
In her psychological evaluation of the father dated 15 September 2023, the expert reported:
101. When considering the risk and protective factors involved regarding [X], I am of the opinion that there are at least a Low to Moderate number of risk factors for future child maltreatment that require addressing, should the above allegations by [Ms Paulsen] be proven as fact. The identified risk factors will require addressing in order to reduce X's vulnerability to future child maltreatment. Ensuring [Ms Paulsen] engages with the requisite supports will be especially critical.
With the benefit of all of the evidence, where the risk assessment is based on the mother’s allegations, it is tenuous. Where it based on the father’s own problematic personality features, it is real and present. Either way, ensuring that the father engages with the requisite supports is especially critical to promoting the safety of X.
The father presents with serious and untreated personality traits and mental health concerns. This poses a risk to X in the future on two fronts:
(a)The father's incapacity to recognise and prioritise X's needs because of:
(i)His fixation on defeating the mother in these proceedings; and
(ii)His compulsion to manage impressions; and
(iii)His determination to evade revealing of his vulnerabilities.
(b)The psychological and developmental harm likely to be suffered by X when the father breaks or inhibits the relationship between X and her mother.
Measures that may mitigate the risks are:
(a)The ending of these proceedings;
(b)Orders which maximise X's time and contact with the mother without influence or control from the father;
(c)Orders which do not require co-operation and limit as much as possible engagement as between the parents;
(d)Orders which compel the father's engagement with requisite supports for X and for himself;
(e)Orders which compel prioritisation of X's diagnostic assessment and treatment despite the father's lay opinions.
What risk, if any, does the mother (and her household) pose to X, and what means, if any, are available to mitigate such risks
The mother’s mental health
The expert, in her updated Family Report dated 9 August 2024 identified problematic personality factors relating to the mother as:
12. a. There is a strong presence of Cluster B traits (narcissistic, turbulent and histrionic) which appear to be fuelling [Ms Paulsen]’s dysfunctional behaviours, including rapid escalation and presenting as emotionally heightened and labile: both were witnessed on the day of assessment. I am of the view that these traits are in fact endogenous to her, rather than simply the product of the current court sequalae … These traits are important to understand in the context of ongoing interpersonal dynamics and how they may impact her relationships with [Mr Paulsen] and [X] in the year ahead, particularly if left untreated.’
Further:
83. ... My strong view is that spending more time attempting to discriminate one personality presentation from the other, will do little, if anything, to advance this family’s circumstances. ... I reiterate that with regards to presenting symptoms, when triggered, [Ms Paulsen] presents with: emotional lability and rapid shifts in emotion, there is a quick shift from valuing [Mr Paulsen] to devaluing him (when triggered, and when her emotional needs are unmet), reference to suicidality (seemingly without substance and therefore likely occurring in the context of attention seeking behaviours), fear of abandonment, focus on physical appearance, and a belief that her relationship to [Mr Paulsen] was perhaps more intimate than it truly was.
In her oral evidence the mother conceded that she can be a violent person prone to losing her temper quickly and screaming at the father and at X. However, the mother conditioned her concessions on that behaviour only occurring in certain circumstances. She accepted stress was one of these circumstances. She did not accept that she had an anger management issue.
The mother’s household
The mother lives in a rented three-bedroom house. She is employed by Y Centre as a professional.
The mother’s partner Mr V gave evidence in support of the mother. They met online, commenced a relationship soon after and by late 2022 the mother took X for a weekend away in Sydney with Mr V. By early 2023, Mr V changed jobs from near City T to City F in order to move in and start living with the mother. He says he sleeps on the couch whenever X comes to stay because X co-sleeps with her mother. He acknowledges that is not sustainable. They have no plan going forward but he did not see that as a difficulty once there was some certainty about what would be required. Mr V has a close relationship with his own parents who live in City B which is much closer to the father and X. He could not continue his line of work from City B. He is aligned wholly with the mother and, at least for the foreseeable future, does not appear to be someone who could facilitate a functional relationship between the parents. There is also no rational evidence to support the father’s concerns (and the orders he seeks) about Mr V being a risk of sexual harm to X.
The mother’s sister Ms Z gave evidence. She conceded that the mother would raise her voice and sometimes scream or yell but that was her normal and it was never scary. She said the mother does not and never has had an anger management problem. She said she did not know that the mother had been charged with assaulting the father and pleaded guilty. Her evidence was so partisan as to be of no objective use. She is however a component of the mother’s support network. She works in City F and lives with the mother and Mr V during the week and with her husband on weekends in the Sydney area. She has had a long-standing relationship with X. She deposed that her husband Mr L has been charged with a sexual assault offence to which he has pleaded not guilty, the matter went to hearing but the jury could not make a decision and was to be tried again in 2025. There is an interim order preventing the mother from being in the sole care of Mr L. In the absence of any other evidence about Mr L it is necessary for that restraint to continue.
The mother’s other sister Ms AA and Ms AA’s husband live in City F and that is the reason why the mother initially moved to City F. X has had a longstanding, close and important relationship with Ms AA and her husband. It seems X would stay with Ms AA when in City F often enough for that to be a familiar arrangement and X would call Ms AA’s husband “Papa.” However, the mother’s relationship with her sister has completely broken down recently. It culminated in an incident which occurred in early 2024 when Ms AA and her husband came to the mother’s house late one night. The argument of the moment was about a pair of slippers but it is clear that the underlying problem was much larger. The police were ultimately called it seems by Ms AA. The evidence about it at all is vague. Ms AA was not on evidence. The mother, Mr V and Ms Z were far from descriptive and the only available inference is that the breakdown of such an important relationship and whatever the role that the mother had in it, was a poor reflection on the mother given the consequential impact on X.
The loss of that relationship in circumstances that no one sought to properly explain is a significant concern in this case. Without that relationship, there are only two circumstances that support the mother living in City F:
(a)Her present partner whose work is connected to City F. However, whilst there is no reason not to accept Mr V's evidence that he is committed to the mother and his intentions are life long, it is still a fledgling relationship and the mother's history of close personal relationships is not good; and
(b)The mother's own employment. However, her job is not location specific and as a state public servant she has prospects of transferring.
Most importantly, the support network that comes with the mother’s relationship with her sister is gone. The mother chose not to explain that in her case nor is there any evidence of the steps she is taking to rectify it for X’s sake. The mother gave no real indication of recognising the significance of that loss or the harm it is likely to have on X.
Findings as to risks posed by the mother
In her Psychological Evaluation & Risk Assessment of the mother dated 15 September 2024, the expert reported:
65. On balance, when considering the risk and protective factors involved [X], I am of the opinion that there are a Moderate number of risk factors for future child maltreatment that require addressing should [X] be returned to the care of her mother, and should the above allegations by [Mr Paulsen] be proven as fact. The identified risk factors will require addressing in order to reduce [X]'s vulnerability to future child maltreatment. Ensuring [Ms Paulsen] engages with the requisite supports will be especially critical.
Encouragingly, by her second 9 August 2024 report, the expert reported:
84. Since the last time I assessed [Ms Paulsen], her presentation on the day of current assessment was far more contained and emotionally stable. [Ms Paulsen] has clearly spent time addressing her emotional lability and there is little doubt that having [X] returned to her care every alternate weekend has been a significant soothing factor in her emotional world. Further, [Ms Paulsen] has now had considerable distance from [Mr Paulsen], who was a significant trigger and taken together, I do not view [Ms Paulsen] as approaching the unacceptable risk threshold as it relates to parenting [X]. The evidence in my opinion, suggests that [Ms Paulsen] meets the threshold for ‘good enough’ parenting as it relates to [X] and their unsupervised contact should continue.
With the benefit of all of the evidence, I find there is some veracity to the allegations the father makes about the behaviour of the mother. Evidence consistent with the father’s allegations includes:
(a)The manner, tone and content of the mother in the audio recordings annexed to the father’s affidavit filed 26 August 2024;
(b)The mother's incapacity to maintain the objectively crucial relationship with her sister and the absence of evidence around the reasons why it broke down;
(c)The speed with which the mother found and entered into another serious relationship and the speed and manner in which the mother introduced X to it;
(d)Perhaps above all else, the psychological traits identified by the expert are consistent with the behaviours alleged by the father and the expert's opinion is that these traits are endogenous to her rather than situational to the father or these proceedings.
The mother presents with serious and untreated personality traits and mental health concerns. This poses a risk to X in the future on two fronts:
(a)The mother's incapacity to recognise and prioritise X's needs because of:
(i)Her propensity to escalate to emotionally heightened states; and
(ii)Her propensity to have unstable and intense relationships.
(b)The psychological and developmental harm likely to be suffered by X when exposed to the mother's unpredictable mood swings, irrational expectations and dysfunctional behaviours.
Measures that may mitigate the risks are:
(a)Orders which limit X's time and contact with the mother;
(b)Orders which do not require co-operation and limit as much as possible the mother's exposure to the father;
(c)Orders which compel the mother's engagement with requisite supports for herself and for X.
What are X’s needs
X has specific social and developmental needs which are evident in her presentation at school. There is also a demonstrated need for X to be properly assessed for ADHD and ASD. These issues are well set out by the ICL in her written submissions filed 11 October 2024 which I adopt:
Schooling
70. The evidence produced to the Court, particularly from [X]’s school, indicates that [X]’s current functioning is significantly impaired and has not been adequately addressed. Since [X] commenced attending [C School] in 2021, concerns have been raised by the school about her presentation, academic progress and behaviour.
71. The Father’s filed evidence about [X] was completely deficient and amounted to 10 of 431 paragraphs of the Father’s trial affidavit. Those paragraphs were drafted by the Father to suggest to the Court that [X]’s progress had improved since being back in his care, that there were no issues requiring the Father to attend at [X]’s school and that a recent regression in [X]’s concentration at school was the Mother’s fault.[2]
[2] Original footnote: ‘Paragraphs 319 – 329 of the Father’s Affidavit filed 26 August 2024’
…
74. The evidence given by [Dr M] as to why the Father minimised or omitted evidence about [X]’s issues and why his evidence sought to paint a positive picture of [X] in his trial material is relevant: [Dr M] gave evidence that the Father’s undiagnosed and untreated mental health and personality issues (most likely, in her view, ADHD and Cluster B personality traits) cause the Father to have an extreme fear of criticism and rejection which, in addition to what she described as his ‘hyperfixation’ on the Mother being the cause of all [X]’s issues.
75. The Court would have very significant concerns about [X]’s presentation, progress and behaviour at school and the Court would not be satisfied that the Father has addressed those issues adequately or that he will do so in the future without oversight and specific orders.
76. The ICL has proposed specific orders in relation to [X] undergoing assessment and has suggested she remain appointed to ensure that assessment occurs as ordered.
ADHD/ASD Assessment
77. The Court would also have significant concerns that as at day one of trial, [X] had not undertaken assessment for either ADHD or ASD. This was despite order 22 of the orders made 26 September 2023 which required the Father, to ‘in advance of the final hearing, obtain and make available to all parties a report assessing [X] in relation to any diagnosis of Attention Deficit Hyperactivity Disorder and/or Autism Spectrum Disorder’.
78. The Father’s oral evidence was to the effect that he has been told by [X]’s paediatrician that [X] does not have ADHD and that [X] is likely ‘low’ on the ASD Spectrum and is still awaiting a date for ASD testing to occur.
79. Documents produced to the Court by the [City BB] Paediatric Clinic indicated that the Father had provided information to the [City BB] Paediatric Clinic to the effect that all of [X]’s problematic behaviour (such as being late to walking, talking and toileting, inability to concentrate at school and sexualised behaviours) were due to the Mother’s negligence and/or abuse.
80. It is likely [X]’s ADHD and ASD assessments have not progressed as fast as they might given the misinformation provided to the [City BB] Paediatric Clinic by the Father.
81. Again, the Father’s pathological and fixed view of the Mother has impeded his ability to provide accurate information about [X]’s past and current functioning.
Counselling/Therapeutic Support
82. [X] has had none or very little counselling since separation. The evidence filed by the Mother indicates that as recently as August 2024 the Father had not provided his consent to [X]’s school for [X] to engage with the school counsellor.
83. The ICL has sought to address the failure of either parent to promote or support [X]’s needs by specific orders.
84.In the event there is any failure to comply with those orders, the ICL would expect a Contravention Application to be brought against the non-complying party.
What are the parenting capacities of each parent, and what is their ability to meet all of X’s needs
Parenting capacities of the father
There is no real concern about the father’s ability to recognise and provide for all of X’s basic needs such as housing, clothing, diet, general health and socialisation. There is also comfort that the father and X have available to them a support network comprising of her half siblings who are now in their thirties and were available to give evidence if called.
The two principle needs where there is a real question about the father’s capacity to provide for are X’s emotional needs around her relationship with her mother, and the father’s capacity to provide for X’s mental health needs in the context of his own mental health presentation.
The father did not resile from his decision to include over 50 pages of evidence that was critical of the mother either expressly or by inference after setting out details of incidents and her behaviours. The father did not accept that the expert’s provisional diagnosis, of grandiosity amongst other things, could be right. Where the expert expressed a view that both the father and the mother have embellished, distorted and misrepresented things that have happened in the past, he would not concede that applied to him. He maintained his views and the accuracy and truthfulness of them. For example:
(a)Riding a bike 80 kilometres each way to school and back and that every day he swam 50 laps of an Olympic size pool from the ages of 14 to 17; and
(b)That all stopped because at 17, whilst at a sports event, he injured himself. He shattered his knees and three vertebrae. He was told that he wasn't going to walk again but it was absolutely 100 per cent correct that he was walking within seven days.
Where there are mistakes or inaccuracies in the expert’s reports, such as where the father said he had broken just about every bone in his body from the chin down, and he meant that was over time, but the expert attributed that to the accident, that is her poor note taking skills and her mistake, not his.
The father agreed that there was nothing positive about the mother anywhere in his voluminous affidavit material. Under cross-examination by the ICL, he deposed that he had nothing positive to say about the mother. It was suggested to him that he think about that over the lunch break but gave the same answer later in the day. The following exchange occurred:
Do you think it might be a concern to his Honour that you can’t say anything positive to the mother?---Yes. I – that’s the behaviour.
okay. That’s her behaviour. Is that what you said? I didn’t actually hear you. Is that what you said? Her behaviour?---Yes. She went out of her way to destroy every reasonable day that we could ever have.
Okay. Do you think [X] has a positive view of her mother?---Yes, [X] has a very positive view of her mother. [X] loves her mother.
Yes, she does, doesn’t she?---Yes. I don’t try and break that, I don’t try and get in between it.
Okay. Are you able to talk to [X] positively about her mother?---Yes, I do. She says, “I don’t want to call Mum.” I say, “Come on, ring your mum.”

The father went on to repeatedly explain how he reminds X to participate in calls with the mother and reminds her of upcoming time with the mother and that he does not share his own views about the mother with X.
There followed a painstaking exercise of the ICL trying diligently to point out that does not equate to expressing positivity to X about the mother and providing opportunities for the father to recognise something else. He did not. It became apparent that the father was of the considered and firm belief that him adhering to orders about contact and time with the mother and in particular, shielding X from the behaviour of the mother which he is cognisant of, are examples of him being positive about the mother. He did not agree that it would be correct for the ICL to submit that the father is unable to assist X to understand anything positive about her mother.
The father deposed and maintained that X is maintaining a steady rate of improvement since X’s exposure to the mother was reduced and that any regression is due to X’s time with the mother in person or by video call. The evidence is clear that the father is plainly wrong in this regard.
Firstly, the expert was clear that any gains seen in X since separation is attributable to cessation of exposure to parental conflict as opposed to removal of the mother. In both of her reports the expert has been adamant that maintenance of X’s unhindered relationship with her mother is critical to X.
Secondly, X is not doing anywhere near as well as what the father either believes or what he makes out because he is obsessed with impression management and blaming the mother. He is blind to his own faults and he is blind to any faults of X’s for fear it may reflect on his parenting. Dr M did not resile from her view that the Father’s undiagnosed and untreated mental health and/or personality issues impact his parenting of X including his unwillingness or inability to prioritise and support X being properly assessed for ADHD and ASD.
Parenting capacities of the mother
Instances where the mother has exercised concerning judgment include:
(a)To the extent that it was in her ability to control, behave in the way she did with the father in front of X;
(b)Deleting the email that, on her case, was evidence of the father having a sexual interest in underage girls;
(c)Introducing her new partner within one month of meeting him online and then taking X away for a weekend within one more month;
(d)Leaving X in the care of the father for such long periods of time in circumstances where she alleges risk of harm and parental incapacity in the care of the father;
(e)Not spending time with X personally for most of every second Saturday (with swimming lessons and X going to Ms AA's every Saturday afternoon);
(f)Encouraging, or at least permitting, X to call her uncle by marriage "Papa;"
(g)Going to Country CC on holiday with her partner instead of spending time with X;
(h)Not obtaining any mental health diagnosis or treatment for herself beyond some counselling, despite being on notice of how serious this aspect of the proceedings was going to be;
(i)Her attempts to influence X's own views as identified by the expert.
The leading cause for concern however is the mother’s own actions which had the consequence of being wholly unavailable to X emotionally and physically. It is well summarised by the ICL in her written submissions filed 11 October 2024 which I adopt:
67. The Mother accepted the proposition that her decision to unilaterally relocate with [X] from [Town R] to [City F] in [mid] 2022 was not in [X]’s best interests and was a decision made by the Mother to meet her own needs and not necessarily [X]’s. ... The Mother further accepted the proposition that decision she made between November 2022 and trial in relation to remaining in [City F] were to [X]’s detriment and to meet her own needs. In particular, had the Mother relocated back to be closer to [X], she would have been more available to spend time with [X] and assist [X] with the issues she is having at school and obtaining assessments and treatment.
68. When [Dr M] was asked about these concessions made by the mother, [Dr M] gave evidence that it was positive that the mother has been able to be reflective and insightful and take accountability and be truthful, however, the Mother has had, in her view, ample opportunity to do that before now. That she has done it at trial is convenient and begs the question of how genuine her insight and reflection might be.
69. The Mother should be given some credit for attempting to address her mental health, for demonstrating some insight into the impact on [X] of her decision to unilaterally relocate [X] in [mid] 2022 and then not to return to live near [X] between November 2022 and trial. Given the evidence of [Dr M] raising some concern about the timing of that evidence and its genuineness, the Court would not be persuaded that the concerns about the Mother have been adequately addressed or have resolved.
What is the likely impact on X of each party’s proposal
The mother seeks an immediate change of residence for X which includes X relocating three hours away. The mother had no solid plans with respect to many obvious and immediate issues consequential to a relocation.
The mother accepted that the counselling she had was not sufficient to address the risk of harm to X of her own mental health vulnerabilities but said she has not been able to afford anything else. Nevertheless, she said that she would pay for private school fees, a private tutor and a private paediatrician in Sydney for X. Other than the cessation of whatever financial drain these proceedings may be having on her, there was no evidence of prospects of her financial situation changing in any significant way in order to fund her aspirations.
She presented no plans at all with respect to relatively straight forward and predictable conundrums such as how to accommodate her partner and X on a fulltime basis, Ms Z virtually living with them, or rectifying her relationship with Ms AA and her husband.
As to the mother’s and X’s connection to City F:
(a)The only family the mother has in City F is her sister who she has been estranged from since March 2024;
(b)Her other sister technically lives in the greater Sydney area;
(c)Her partner's parents live in City B;
(d)Her parents live in the Country Q and would spend time with the mother and X wherever the mother may be living when they visit;
(e)There is no evidence from the mother, her partner or sister of activities that X does in City F that could not be done elsewhere. There is no evidence of X having any connection to City F other than that is where the mother presently lives;
(f)The mother does have a job in City F and the mother's partner has obtained a job near City F.
No argument was made by the mother about developing a Country Q culture with X that might continue if X lived with her.
On the father’s case, X stays living in her present house and attending her present school. I have no difficulty accepting the expert’s reports about X’s preference not to leave her school and peers and that change simply feels too great for her.
THE LEGAL PRINCIPLES
These are child-related proceedings under Part VII of the Family Law Act 1975. In deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration (s 60CA).
In considering what order to make, I must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order: does not expose a person to an unacceptable risk of family violence; and, the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (s 60CG).
Pursuant to s 60CC, in determining what is in the child's best interests, I must consider:
(a)What arrangements would promote the safety of the child and his parents (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm); and
(b)Any history of family violence, abuse or neglect involving the child or his parents and
(c)Any family violence order that applies or has applied to the child or his parents.
I must also consider:
(a)Any views expressed by the child;
(b)The developmental, psychological, emotional and cultural needs of the child;
(c)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;
(d)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; and
(e)Anything else that is relevant to the particular circumstances of the child.
Parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B).
A parenting order may confer parental responsibility for a child on a person to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child (s 61D).
A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to a child may provide for joint or sole decision-making in relation to all or specified major long - term issues (s 61D(3)).
Pursuant so s 61DAA(1) of the Act, if a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a)to consult each other person in relation to each such decision; and
(b)to make a genuine effort to come to a joint decision.
Pursuant to s 4, "major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
In matters where a parent wants to relocate the residence of a child, the law is well settled that the application is to be determined in accordance with the statutory provisions under Part VII of the Act like any other parenting matter.
The Full Court in Taylor & Barker [2007] FamCA 1246, said at [53]:
…when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho v Cohen [2005] FamCA 458; (2005) FLC 93-224).
THE MATTERS SET OUT IN SECTION 60CC OF THE ACT
What arrangements would promote the safety of the child and her parents
X is at risk of harm in the care of either parent.
In the case of the father, it is by not having her needs met and her father jeopardising her relationship with her mother. Regardless of the father dealing with his own vulnerabilities or not, there are good prospects of significantly minimising these risks with specific orders to ensure the father submits X for assessment and any recommended treatment, and to ensure X spends clear and consistent time with her mother.
In the case of the mother, it is by not having her needs met when the mother is emotionally and/or physically not available to X when she needs her. Further, it is the psychological harm by being exposed to inconsistent and volatile relationships, especially close and important relationships. These risks are not able to be mitigated by orders because they are endogenous to the mother rather than situational to the father or to X. It seems that what is required is the intense therapy canvassed by the expert in her initial report which, if it was a condition to time, is beyond the scope of orders that are able to be made in this Court.
Arrangements that would promote the safety of X are therefore that she live with the father, the father be compelled to submit X to proper assessment and treatment and for X to spend time with the mother.
The views expressed by the child
The expert reported in her 9 August Family Report:
86. Upon interviewing [X], she presented as a more mature and engaged young girl, who was not as withdrawn and internalised as the first time I saw her. This no doubt provided some evidence that she is happier, settled into a routine, and is doing much better now that both parents are actively in her life. [X] expressed her views that she seeks to continue living with her father, noting that her primary concern was leaving the social capital around her (i.e., school, peers etc) and well as fearing she would miss her father too much. [X] was clear that her mother advised her to tell me that she wanted to go and live with her, however, she preferred to stay residing with her father. [X] provided a clever and logical solution to the dilemma of having two parents whom she clearly loves dearly, residing so geographically far apart from one another, noting that seeing her mother every weekend was a good solution to the split of time across two homes.
…
90. … I note that had [X] disclosed during the assessment process that she felt strongly about moving to reside with her mother primarily, a reasonable degree of weight would have been placed on this, however, aligning to [X]’s wishes to not change her residence, I am led to believe that she is communicating that change simply feels too great for her…
In her Outline of Case document, the ICL reported that:
5. [X] has expressed an overall view to the Expert Witness that she would prefer to remain living in [Town E] with the Father.
6. The ICL has met with [X] on one occasion in November 2022. The ICL requested to meet with [X] again prior to trial but that did not occur.
X’s views as expressed to the expert and the ICL have been taken into account.
Developmental, psychological, emotional and cultural needs of the child
Relevant needs are identified and dealt with at paragraph [63] above.
The capacity of each parent to provide for the child’s developmental, psychological, emotional and cultural needs
Each parent’s capacity to provide for X’s needs have been identified and dealt with at paragraphs [64]–[75] above.
The benefit to the child of being able to have a relationship with their parents, where it is safe to do so
It was agreed between the parents that something that was not in issue was that each parent genuinely believes that X has a meaningful relationship with both of her parents and it is beneficial to X for those relationships to continue.[3]
[3] Exhibit I
I hear the ICL’s concern about whether the father does indeed hold a genuine belief that X has a meaningful relationship with her mother. In my view, the concern is answered in that the father’s own definition of what a “meaningful relationship” is one that suits himself.
It is overwhelmingly evident in the expert’s reports that X has a relationship with both of her parents which is beneficial to her and both parents seek orders for X to spend substantial time in the care of the other parent.
DETERMINATION OF MAJOR LONG-TERM DECISION-MAKING RESPONSIBILITY
The expert reported in the 9 August 2024 report:
91. Regarding the issue of parental responsibility, I hold the same concerns that I did in my previous report. On the one hand, due to the high conflict nature of the parties, any decisions as they relate to [X] in the months and years ahead might be fraught with complexity and hostility if both parents are required to provide input into decisions as they relate to [X]. Any ongoing conflict will have direct implications for [X], and at worst delay major decisions for [X] if the parties remain unable to agree, and are forced to return matters to court. On the other hand, providing input into major decisions that affect [X] should be the right of both of these parents, and there is not one which I favour over the other for this role, aside from the fact that [Mr Paulsen] has primary care of [X], and it makes sense that he be afforded decision making as it relates to [X]’s schooling at the very least. One middle ground might be that [Mr Paulsen] is awarded sole decision making power for all matters relating to [X]’s schooling, but the remaining decision affecting [X], especially medical related ones are joint.
The ICL sought an order that the parents shall have joint parental responsibility for X and joint decision-making authority in respect of all decisions concerning major long-term issues. The ICL submitting that was consistent with the expert who recommended, at [92(b)] of the 9 August report, that ‘notwithstanding any issues of risk identified by the Court, these parents continue with joint parental responsibility in the main, and if the conflict between them is too great, that Mr Paulsen assumes primary parental responsibility for matters that relate to X’s schooling given the geographical distance between parents.’
The evidence in this case is that the conflict between them is too great and therefore the precondition for the recommendation is not met. Further, the expert also reported, at [15] of the 9 August report, and the parties agreed,[4] that co-parenting continues to be heavily strained between the parties whose relationship is tense and combative, and there remains little to no meaningful communication between the parties relating to X. That unequivocal fact is wholly inconsistent with the effect of an order providing for joint decision making pursuant to s 61DAA of the Act and in my view precludes such an order from being able to be made at law.
[4] Exhibit I
I understand the intention of seeking an order for joint decision-making responsibility is to operate as a check and balance and guard against alienation, however that is not consistent with the provisions about parental responsibility in Div 2 of Pt VII of the Act. Further, it is so aspirational as to invite one or the other of the parties to institute further proceedings to resolve inevitable distrust and deadlock.
In circumstances where X will be living primarily with her father, it is in X’s best interests for the father to have sole decision-making responsibility for major long-term issues with respect to X.
There is no reason however why the mother should not be aware of major long-term issues with respect to X and an opportunity to have input and so the father will be required to notify her and consider her views prior to making any such decision.
To guard against the risk of the father inhibiting X’s relationship with her mother, an exception will be with respect to any changes to X's living arrangements that make it significantly more difficult for her to spend time with her mother.

To ensure stability is retained for X as promoted by the father, and to support proper diagnosis and treatment, the father will be restrained form changing X’s primary school.
DETERMINATION OF TIME ARRANGEMENTS
It was agreed between the parents and the ICL that the following were not in issue in this case:[5]
(a)That any kind of equal or close to equal time arrangement is not practicable such that X will need to live with one parent or the other.
(b)X should spend time with the parent that she is not living with on a regular basis such as alternate weekends, or the first and third weekends of each month, or specified weekends per school term, or similar.
(c)X should spend substantial time, possibly equal time, with each parent during school holiday periods.
(d)There should be regular electronic communication between X and both parents.
(e)Subject to emergencies, or short logistical messages around changeovers (for example 'running 10 minutes late' or 'X forgot her toothbrush') which may be by text message, the parents should only communicate through the Talking Parents app.
(f)Regardless of with whom X is living or spending time, both parents are able to participate in and attend all of X's school special events or extracurricular special events.
(g)Regardless of long-term decision-making responsibility, both parents are to have access to educational and medical information commensurate with equal shared parental responsibility and joint long-term decision-making responsibility.
[5] Exhibit I
Those agreed aspects together with my findings that X should live with her father and spend time with her mother takes care of the final orders to a significant extent which are then largely in the terms sought by the ICL.
THE ORDERS
As sought by the ICL, their appointment will remain in place for 12 months, primarily to ensure the father properly attends to X’s diagnostic assessment and treatment, but also to mitigate against either parent’s non-compliance.
Regarding X’s time with the mother it is to be:
(a)Alternate weekends from Friday at 7pm to Sunday at 7pm which is in line with the interim orders, as sought by the father and as sought by the ICL.
(b)The ICL, the father and the mother each sought different combinations for school holiday time which included more time with the non-resident parent. In my view, X is better served with a clear and predictable regime and it is not necessary to attempt to offset holiday against term time. Accordingly, school holidays are to be with each parent for half of the period. This includes the Christmas period.
When pressed in cross-examination, the mother said she could and would relocate to be closer to X. That evidence is received with caution where the mother has in fact taken no such steps. Nevertheless, if it were the case that the mother was living within 50 kilometres of X’s school, she could spend more time with her mother which encompassed days other than weekends and holidays. Therefore, Order 16 is made to accommodate that as sought by the ICL and also seeks to avoid the institution of further proceedings.
The orders about sharing of information are made by consent.
The injunctions and orders about counselling, treatment, courses and family therapy are made in the terms sought by the ICL and for the reasons set out above with respect to the risks posed to X by her parents and their respective incapacities to provide for all of X’s needs.
The orders for international travel are made in the terms sought by the ICL except for the father being able to unilaterally obtain a passport in line with the order for sole decision-making responsibility.
APPLICATION IN A PROCEEDING DATED 11 SEPTEMBER 2024
On 11 September 2024, the mother filed an Application in a Proceeding seeking:
(a)Costs against the father, on an indemnity basis otherwise at scale, for one day of the final hearing; and in the alternative;
(i)Costs against the father's Legal Representatives, on an indemnity basis otherwise at scale, for one day of the final hearing; and
(b)Costs against the father, on an indemnity basis otherwise at scale, for the Application in a Proceeding dated 23 April 2024; and
(c)Costs against the father, on an indemnity basis otherwise at scale, for the Application in a Proceeding dated 9 August 2024; and
(d)Costs against the father, on an indemnity basis otherwise at scale, for the present Application in a Proceeding dated 11 September 2024.
The application was supported by an affidavit of a representative of the mother’s lawyers – Ms DD dated 11 September 2024 and a Financial Statement filed on 11 September 2024.
At the conclusion of the hearing on 13 September 2024, orders were made for the father and his legal representative to file any Response and for all parties to file joint or competing minutes of orders timetabling the filing of evidence and submissions and any request for a hearing date.
By correspondence to the Court on 24 October 2024, the mother’s legal representatives advised that the application with respect to the father’s legal representatives was withdrawn but otherwise pressed as against the father.
The mother proposed orders culminating in the matter being determined on the papers. The father has not filed anything.
Pursuant to section 117 of the Family Law Act 1975 (Cth), each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court may make such order as to costs as it considers just if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
With respect to the costs associated with one day (presumably day four) of the final hearing, I refer to my reasons set out in Paulsen & Paulsen [2024] FedCFamC2F 1193 in granting the father’s application to adjourn. Though unfortunate, the circumstances causing the delay do not fall within any of the matters prescribed in sub-s 117(2A) of the Act.
With respect to the Application in a Proceeding dated 23 April 2024, it was an application brought by the mother, supported by the ICL, for an update to the family report. The father’s grounds for not agreeing to the update were unreasonable and without merit and at hearing he stated he did not oppose it. It was a cost that was wholly caused by the father’s conduct and should not have had to be incurred by the mother. It is just that the father pay the wife’s costs of that application fixed in the sum of $2,093.62 being costs at scale pursuant to Item 4 - Procedural or summary hearing as a discrete event of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
With respect to the Application in a Proceeding dated 9 August 2024, it was an application brought by the father, opposed by the ICL and the mother, to have the final hearing vacated on the basis that the updated family report had not been provided to the parties. It was provided to the parties that same day. The father did not withdraw the application necessitating the mother filing a Response, affidavit and attendance at a defended hearing on 19 August 2024 at which time the father withdrew the application and it was dismissed. It was a cost that was wholly caused by the father’s conduct and should not have had to be incurred by the mother. It is just that the father pay the wife’s costs of that application fixed in the sum of $2,093.62 being costs at scale pursuant to Item 4 of the Rules.
With respect to the present Application in a Proceeding dated 11 September 2024, it has been dealt with during the substantive proceedings and the only costs pertaining to it seems to me to be the preparation of it. It has only been partially successful. I am not satisfied that the circumstances justify an order for costs.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield.
Associate:
Dated: 10 January 2025
ANNEXURE “A”
RECORD OF EXHIBITS

DATE TENDERED EXHIBIT NO DESCRIPTION OF EXHIBIT TENDERED BY:

27.08.2024 A Affidavit of Mr Paulsen filed 21.8.2024 - refiled 26.8.2024 & document “Father & Witnesses’ affidavits for keep”. AF

27.08.2024 B 9 double sided pages with respect to Ms EE notes RM

28.8.2024 C The bundle of documents from City D Hospital RM

28.8.2024 D School report semester 1, 2024 RM

28.8.2024 E School attendance records from 1 Feb 2024 to 16 August 2024 RM

28.8.2024 F Corro between mother and C School 13 - 19 August 2024, with respect to counselling RM

28.8.2024 G Student Chronicle ICL

28.8.2024 H School Report, Semester 2 2023 ICL

12.09.2024 I Table of Agreed Facts and Issues J

12.09.2024 J Affidavit of Ms Paulsen filed 13.8.2024 RM

12.09.2024 K 2 photos 25 and 26 December 2016 AF

12.09.2024 L Email from mother to Mr FF of 30 August 2013 AF

12.09.2024 M GG medical centre and referral dated 7.11.2022 [para 190of Ex J] AF

12.09.2024 N Table of Objections made available of video files AF

13.09.2024 O Affidavit of Mr V filed 8.8.2024 RM

13.09.2024 P Affidavit of Ms Z filed 13.8.2024 RM

13.09.2024 Q Single Expert Report Dr M dated 20.3.2024 ICL

13.09.2024 R Updated Report of Dr M dated 9.8.2024 ICL

13.09.2024 S City BB Health Service documents ICL

28.8.2024 MFI1 C School internal notes RM

As to the mother’s perspective, she gives evidence that she has concerns about X’s progress and development arising from her own enquires with X’s school, however, her earliest date is as recent as 31 July 2024 which is not indicative of a vigilant engagement.

File number(s):	CAC 1710 of 2022
Judgment of:	JUDGE MANSFIELD
Date of judgment:	10 January 2025
Catchwords:	FAMILY LAW – PARENTING – Final Orders – One child 10 years old – Where the mother has relocated three hours away – Where both parties have significant and unaddressed mental health vulnerabilities – Where child at risk of harm in care of either parent but benefits from her relationship with both parents – Child to remain living with the father and spend regular time with the mother – ICL to remain appointed for 12 months with liberty to apply to ensure the child’s diagnostic assessment and treatment and to mitigate against either parent’s non-compliance.
Legislation:	Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 60CG, 61B, 61D, 61DAA & 117
Cases cited:	Paulsen & Paulsen [2024] FedCFamC2F 1193 Taylor & Barker [2007] FamCA 1246; (2007) 214 FLR 433
Division:	Division 2 Family Law
Number of paragraphs:	131
Date of hearing:	26-30 August and 12-13 September 2024
Place:	Canberra
Solicitor for the Applicant:	Brightstone Legal
Counsel for the Respondent:	Mr Bateman
Solicitor for the Respondent:	Baldock Stacy and Niven Solicitors
Solicitor for the Independent Children's Lawyer:	Legal Aid ACT

CAC 1710 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PAULSEN Applicant
AND:	MS PAULSEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	10 JANUARY 2025

DATE TENDERED	EXHIBIT NO	DESCRIPTION OF EXHIBIT	TENDERED BY:
27.08.2024	A	Affidavit of Mr Paulsen filed 21.8.2024 - refiled 26.8.2024 & document “Father & Witnesses’ affidavits for keep”.	AF
27.08.2024	B	9 double sided pages with respect to Ms EE notes	RM
28.8.2024	C	The bundle of documents from City D Hospital	RM
28.8.2024	D	School report semester 1, 2024	RM
28.8.2024	E	School attendance records from 1 Feb 2024 to 16 August 2024	RM
28.8.2024	F	Corro between mother and C School 13 - 19 August 2024, with respect to counselling	RM
28.8.2024	G	Student Chronicle	ICL
28.8.2024	H	School Report, Semester 2 2023	ICL
12.09.2024	I	Table of Agreed Facts and Issues	J
12.09.2024	J	Affidavit of Ms Paulsen filed 13.8.2024	RM
12.09.2024	K	2 photos 25 and 26 December 2016	AF
12.09.2024	L	Email from mother to Mr FF of 30 August 2013	AF
12.09.2024	M	GG medical centre and referral dated 7.11.2022 [para 190of Ex J]	AF
12.09.2024	N	Table of Objections made available of video files	AF
13.09.2024	O	Affidavit of Mr V filed 8.8.2024	RM
13.09.2024	P	Affidavit of Ms Z filed 13.8.2024	RM
13.09.2024	Q	Single Expert Report Dr M dated 20.3.2024	ICL
13.09.2024	R	Updated Report of Dr M dated 9.8.2024	ICL
13.09.2024	S	City BB Health Service documents	ICL
28.8.2024	MFI1	C School internal notes	RM