Pointer & Cheadle (No 2) - [2023] FedCFamC1F 602

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

File number(s): SYC 7392 of 2013

Judgment of: HARPER J

Date of judgment: 21 July 2023

Catchwords: FAMILY LAW – PARENTING PROCEEDINGS – Where the child has been the subject of parenting proceedings for almost the entirety of her life – Parenting orders were made on a final basis in March 2020 (“2020 orders”) – Where the Court found the mother was an unacceptable risk of harm to the child – Where 2020 orders changed the residence of the child to the father and allocated him sole parental responsibility – 2020 orders were upheld on appeal – Where mother commenced fresh proceedings on 10 June 2021 seeking that the child live with her and orders for sole parental responsibility – Where father seeks orders that the child live with him, he hold sole parental responsibility and the child spend no time and has no communication with the mother – Where neither party pressed for the application of the principles in Rice and Asplund (1979) FLC 90-725 – Where Court itself is satisfied there has been a material change in circumstances sufficient to warrant consideration of the parties’ applications – Where the child has a loving relationship with both parents – Where both relationships are characterised by challenges – Where child has displayed concerning behaviour in the care of the father and stepmother – Where the mother argues the child’s behaviour is symptomatic of emotional and physical abuse and neglect of the child by the father – Mother alleges father is an unacceptable risk of harm to the child –Where Court finds that the father and stepmother’s response to the child’s dysregulated behaviour have been at time problematic – Where the father and stepmother have shown insight into their actions and have proactively sought to remedy their parenting deficits – Where the Court is satisfied the father is not an unacceptable risk of harm to the child – Where conversely, the mother has demonstrated limited insight and has been resistant to therapeutic intervention aimed at supporting her parenting – Where the mother’s time with the child has fluctuated between unsupervised and supervised time – Where the mother has demonstrated an inability to comply with Court orders she does not agree with – Where the father has made four Applications in a Proceeding seeking recovery of the child – Where the Court is persuaded that the mother remains an unacceptable risk of psychological harm to the child – Where the Court finds that the mother has persistently sought to intrude into the parenting arrangements managed by the father and manipulated the child in emotionally abusive ways – Where Court ordered therapeutic intervention has not ameliorated the risk of harm to the child posed by the mother – Where the Court does not find that a regime of no time with the mother would be in the best interests of the child – Where the Court is satisfied that, in the circumstances, an order of indefinite supervised contact with the mother is in the child’s best interests where the alternative would be a regime of no time – Where the Court is satisfied injunctive restraints are appropriate and proportionate – Order for the child to live with the father – Order for sole parental responsibility to the father – Order for mother to have monthly supervised visits with the child.

Legislation: Family Law Act 1975 (“Cth”) Pt VII, ss 4, 4AB, 60CA, 60CC, 61DA, 65D(1), 65DAB, 117(2A), 117(4)

Cases cited:
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

AMS v AIF (1999) 163 ALR 501; [1999] HCA 26

B & B (1993) FLC 92-357

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Cheadle & Pointer [2020] FamCA 327

Cheadle & Pointer [2020] FamCAFC 277

Dorian & Geary [2023] FedCFamC1A 58

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102

Gorman & Huffman [2016] FamCAFC 174

Halloran & Keats [2023] FedCFamC1A 56

H & K [2001] FamCA 687

Isles & Nelissen (2022) 65 FLC 94-092; [2022] FedCFamC1A 97

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

M & M (1988) 166 CLR 69; [1988] HCA 68

M & S (2007) FLC 93-313; [2006] FamCA 1408

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

N and S and the Separate Representative (1996) FLC 92-655

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

Pointer & Cheadle [2020] FamCA 183

Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128

Re C and J (1996) FLC 92-697

Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768

Rice and Asplund (1979) FLC 90-725

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

U v U (2002) 211 CLR 238; [2002] HCA 36

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

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 297

Date of last submission/s: 12 May 2023

Date of hearing: 14 –20 February 2023, 6 April 2023

Place: Sydney

Counsel for the Applicant: Ms Coulton

Solicitor for the Applicant: Sexton Family Law

Counsel for the Respondent: Mr Fantin

Solicitor for the Respondent: Inner West Solicitors Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: MCW Lawyers
ORDERS

SYC 7392 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CHEADLE

Applicant

AND:
MR POINTER

Respondent

order made by:

HARPER J

DATE OF ORDER:

21 July 2023

Amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 July 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Respondent Father (“father”) have the sole parental responsibility for X born 2012 (“the child”).
3.The child live with the father.
4.Unless otherwise agreed by the Parties, the child spend the following time with the Applicant Mother (“mother”):
(a)On the last Sunday of every month for such period of time as is prescribed by the supervision entity referred to in Order 5 or if applicable Order 6(b) in accordance with its practices and protocols; and
(b)On the Sunday closest to the first day of Lunar New Year each year, at such times as agreed between the parties, and failing agreement, from 10:00 am to 1:00 pm.

5.For the purpose of Order 4:
(a)The child’s time with the mother is to be supervised by TT Family Centre for Children, or such other commercial supervision agency as agreed between the parties in writing;
(b)The costs of such supervision, including report, are to be borne by the mother; and
(c)The parties shall take all necessary steps to comply with any reasonable request or requirement of the supervision entity.

6.In the event the father relocates interstate with the child:
(a)The father is to notify the mother in writing at least 21 days before such relocation; and
(b)The father is to nominate a commercial supervision agency to supervise the child’s time with the mother in accordance with Orders 4 and 5, and provide details of such agency to the mother at least 21 days before relocating.

7.The father do all acts and things necessary to authorise any school attended by the child to send directly to the mother a copy of the child’s school reports and school photograph order forms.
8.The father keep the mother informed by email, at six monthly intervals, of sporting, religious, cultural or educational events in which the child is from time-to-time involved.
9.That the child X, born on 2012 be removed from the Australian Federal Police Family Law Watchlist, and that the Australian Federal Police give effect to the order forthwith.
10.For the purpose of s 11 of the Australian Passports Act2005:
(a)The parties consent to the child having or being issued with an Australian travel document; and
(b)IT IS NOTED that the child is permitted to travel outside the Commonwealth of Australia, in accordance with these orders, using an Australian travel document.

11.The parties shall do all acts and things and sign all documents necessary, within seven days of being requested to do so, to make an application to the Australian Passport Office (or such other department administering the Australian Passports Act 2005), to enable the child to be issued with an Australian travel document.
12.In the event that a party refuses or neglects to sign any document necessary to issue the child with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give considering to issuing an Australian travel document pursuant to s 11(2)(a) of the Australian Passports Act 2005.
13.The father shall hold the child’s Australian Passport.
14.Both parties be restrained by injunction from:
(a)Providing any documents pertaining to these proceedings to any person other than their legal representatives, except as provided in these orders;
(b)Discussing any allegations raised in these proceedings with or in the presence and/or hearing of the child;
(c)Permitting or allowing any third person who is not child’s treating medical practitioner, mental health practitioner or person supporting the child with the implementation of these orders and/or her relationship with her parents, to discuss with the child or in her presence and/or hearing any allegations raised in these proceedings;
(d)Making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child and each parent will use their best endeavours to ensure that no other person does so; and
(e)Subjecting the child to any form of physical punishment, other than lawful chastisement, or striking and each party shall ensure that no other person does so.

15.The mother be restrained from:
(a)Communicating with the father except as specifically provided in these orders; and
(b)Giving or sending or causing any third party to give or send to X any letters, cards or gifts except as provided in Order 23.

16.The father notify the mother in writing as soon as practical in the event that the child suffers a significant illness or injury.
17.Pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”), the father be granted leave to provide a copy of these orders to:
(a)NSW Police for the purposes of the implementation of these Orders;
(b)Department of Community and Justice;
(c)Any school the child may attend; and
(d)Any medical professional or medical facility the child may attend.

18.Pursuant to s 121 of the Act, the father be granted leave to provide a copy of the report of Dr BA dated 30 November 2022; a sealed copy of these orders and a copy of Justice Harper’s Reasons for Judgment to:
(a)Any mental health practitioner or other service the child may attend upon to assist her with the implementation of these orders, and
(b)Any mental health practitioner upon whom the father may attend for treatment.

19.Pursuant to s 121 of the Act the mother has leave to provide a copy of the report of Dr BA dated 30 November 2022, a sealed copy of these orders and a copy of Justice Harper’s Reasons for Judgment to any mental health practitioner upon whom she may attend for treatment.
20.Pursuant to s 68B of the Act, the Court makes the following injunctions for the personal protection of the child:
(a)The mother be restrained from attending within 100 metres of any school that the child may attend;
(b)The mother be restrained from attending within 100 metres of the residence where the father and the child may reside;
(c)The mother be restrained from collecting or causing a third party to collect the child from school or any other location, and
(d)The mother be restrained from communicating with or attempting to communicate with the child except in accordance with these orders,

Noting that the provisions of s 68C of the Act apply in the event a police officer believes, on reasonable grounds, that the mother has breached any of the above injunctions.
21.In the event the child enters into the mother’s care, other than in accordance with these orders, the mother is to immediately contact the father by telephone and is to take all necessary steps to return the child immediately to the father’s care, or to the care of the father’s nominee, at a location nominated by the father.
22.The parties keep each other informed of their contact telephone number, postal address and email address at all times.
23.The mother be at liberty to send the child gifts and cards at Christmas time, on her birthday and for Lunar New Year, noting, that the father is at liberty to inspect the items sent by the mother and determine whether they are appropriate to be passed on to the child.
24.Within 42 days of the date of these orders, the mother is to pay to Legal Aid NSW the sum of $4,500 being the mother’s share of the Independent Children’s Lawyers costs.
25.Within 42 days of the date of these orders, the father is to pay to Legal Aid NSW the sum of $5 4,500 being the father’s share of the Independent Children’s Lawyers costs.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Pointer & Cheadle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

These are parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”), between the applicant father, Mr Pointer (“the father”) and the respondent mother, Ms Cheadle (“the mother”), in relation to the child of the relationship, X, born 2012 (“the child”).
Regrettably, these proceedings have a long history in this Court. The parents have been involved in acrimonious litigation for nine years, commencing when the child, now ten, was only one year old.
On 26 March 2020, McClelland DCJ gave reasons (“first judgment”) and made parenting orders in this matter on a final basis (“2020 orders”) (Pointer & Cheadle [2020] FamCA 183 (“Pointer & Cheadle”)). It is unnecessary to set out the 2020 orders in full. I will refer to their content as required in the course of these reasons.
In that regard, the following points should be recorded here. The mother, who was the applicant, sought orders for sole parental responsibility, for the child to live with her, and spend time with the father according to a graduated increase of time during term and school holidays. She also sought orders for the father to undertake a mental health assessment. The outcome was somewhat different and more in accordance with the proposal of the father and the Independent Children’s Lawyer (“ICL”). The Deputy Chief Justice dealt with numerous allegations made by the mother about the risk of abuse in the father’s care, found the mother was not credible and concluded the child would not be at unacceptable risk in the father’s care. Rather, he ordered the residence of the child move to the father and that he have sole parental responsibility, because it was the mother who posed a risk to the child.
The Deputy Chief Justice summarised his conclusions concerning risk to the child in the mother’s care in Pointer & Cheadle as follows:
433. While I have given attention to all of the considerations set out in s 60CC of the Act, by far the most relevant consideration is the issue of risk. Through s 60CC(2A), the Parliament has directed me, in my capacity as a judicial officer, to prioritise that consideration of risk over the consideration of the child having a meaningful relationship with both parents.
434. For reasons which I have set out, I am satisfied that the child is exposed to an unacceptable risk of emotional and psychological harm if she remains in the primary care of the mother.
435. This is because of the mother’s extreme anxiety concerning the welfare of the child when the child is in the father’s care. It is also because of the mother’s difficulty in appropriately regulating her own behaviour and, as a related issue, the inappropriate manner in which she has communicated to the child, including, most relevantly, advising the child that she faces a risk to her health and, specifically, the possibility of dying in the father’s care.
436. This is in the context where the mother has simply refused to acknowledge that is the case despite clear expert evidence to that effect. In that context, the mother has adopted an unreasonably dismissive approach in respect to counselling and the prospect that such counselling may assist her to address her anxiety and improve her parenting skills.
437. In giving oral evidence Dr B said:
...because anxiety is about irrational fear, so – and that’s why it’s unfortunate that the mother has not been able to connect with some anxiety-specific therapy, such as cognitive behaviour therapy, because that’s perhaps one of the most effective intervention strategies for dealing with anxiety and irrational beliefs around any dimension of life, but in this case [X’s] health.[57]
438. As a result of the mother’s refusal to receive that professional assistance, training and guidance, I have significant doubt that, even despite this decision, she will, in the future, engage with professional assistance, training and guidance in a committed and meaningful way.
439. For these reasons, I am satisfied that the child is at an unacceptable risk of suffering emotional and psychological harm if she remains in the primary care of the mother.
In particular the Deputy Chief Justice made, inter alia, the following orders:
(5) That, subject to Ms Cheadle’s (“the mother”) compliance with Order 9 herein, the child shall spend time with the mother on each alternate weekend from 9.00 am on Sunday until before school on Monday.
(6) In the event that, within 28 days of the date of these Orders, the mother complies with and continues to comply with Order 9 herein, the child shall spend time with the mother:
(a) During school terms, each alternate week from after school on Friday to the commencement of school the following Wednesday;
(b) From 9.00 am on Mother’s Day until before school on Monday each year if the child is not otherwise with the mother;
(c) During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of term until 5.00 pm on the Friday in Week 1 of the holidays;
(d)       During the school holiday period at the end of Term 4 each year:
(i) In even numbered years, from 9.00 am on 24 December until 5.00 pm on 29 December and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(ii) In odd numbered years, from 9.00 am on 28 December until 5.00 pm on 2 January and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(e)       At such other times as agreed in writing between the parents.
…
(9) That the mother’s time with the child in accordance with Order 6 is conditional upon the mother’s compliance with the following:
(a) Within 14 days of the date of these orders, the mother is to obtain a Mental Health Care Plan and referral from her general practitioner to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety;
(b) Within 21 days of the date of these orders, the mother is to make an initial appointment with the therapist and advise the father in writing of the name and contact details of the therapist and the date of the appointment;
(c) The mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the mother to cease treatment;
(d) The mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication or attending any recommended parenting or behaviour management course;
(e) The mother is to provide a copy of the following documents to the therapist prior to or at her initial appointment:
(i)        A sealed copy of these Orders;
(ii)       Deputy Chief Justice McClelland’s reasons for judgment; and
(iii)       Dr B’s reports dated 26 October 2015 and 16 July 2018.
(10)      …
(11) That in the event that the mother does not comply with Order 9, to be confirmed by the mother sending an email to the Independent Children’s Lawyer at, within 28 days of the date of these Orders, then the child’s time with the mother shall continue in accordance with Order 5 and will not commence in accordance with Order 6.
(12) The Court makes the following injunctions pursuant to s 68B(1)(c)(i) of the Family Law Act 1975 (Cth):
(a) The mother is restrained from coming within 50 metres of the father’s residence at any time, except with the father’s prior consent in writing; and
(b) The mother is restrained from coming within 50 metres of the child’s school at any time except for the purposes of collecting or delivering the child in accordance with these Orders, or at the express written invitation of the school Principal, or with the father’s prior consent in writing.

At the commencement of the final hearing before me on 14 February 2023, the parties both sought variations of the 2020 orders and in those circumstances, neither party pressed for the application of the principles in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), even though this issue had been raised at an earlier stage of the proceedings. Recently, in Halloran & Keats [2023] FedCFamC1A 56 at [28] Austin J, sitting as the Full Court, confirmed that a parenting order purporting to limit the application of the principles in Rice and Asplund may be beyond power, and while s 65D(2) of the Act expressly envisages the need to vary parenting orders, “whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained”, citing Poisat & Poisat (2014) FLC 93-597, at [13]. Independently of the parties, as the discussion which follows will disclose, I am satisfied that there has been a material change of circumstance since the 2020 orders, sufficient to warrant the parties competing applications being entertained.
SHORT BACKGROUND
The father was born in 1979 and is currently 43 years of age. He is currently employed as an academic.
The mother was born in 1977 in Country H and is currently 45 years of age. She immigrated to Australia in 2008. The mother is employed on a full time basis as a public servant.
The parties commenced their relationship in 2010 and were married in 2012. The child was born in 2012.
The parties divorced in 2015.
The father married his current wife, Ms G (“stepmother”) in 2018. Their son, ZZ, was born in 2020.
The relevant background in this matter, substantially up until 26 March 2020, is set out in Pointer & Cheadle at [12]–[72]. I incorporate those details here and I will not repeat them save to the extent necessary for the purpose of this judgment.
Events following the 2020 orders
It is nonetheless necessary to recount in some detail the events which have transpired since the 2020 orders.
Those orders required the mother to deliver the child to the father for a change of residence on 28 April 2020. The mother retained the child until 13 May 2020, in contravention, as she argued it was unsafe for her to live with the father due to the risk of COVID-19. The child relocated to live with the father on 13 May 2020.
In summary, the time the mother spent with the child since the 2020 orders has ranged from unsupervised time to limited supervised time as follows:
(1)13 May 2020 until 20 November 2020 the child spent one night per fortnight with the mother;
(2)20 November 2020 until 24 April 2021 the child spent time with the mother each alternate weekend from after school on Friday until before school on Monday, half the school holidays during the short holidays and two weeks in the long holidays;
(3)25 April 2021 until 23 June 2021 the child spent time with the mother unsupervised for one night a fortnight;
(4)24 June 2021 until 1 July 2021 the child spent five nights per fortnight with the mother;
(5)2 July 2021 until 25 September 2021 the child lived with the mother and spent occasional time with the father;
(6)29 September 2021 until 2 June 2022 the mother’s time with the child was limited to three hours of supervised time per fortnight;
(7)3 June 2022 until 7 October 2022 the mother spent time with the child from after school Friday until the commencement of school on Monday with the child in week one and on Thursday evening from the conclusion of school until 6.30 pm in the alternate week; and
(8)8 October 2022 until present the mother’s time with the child has been limited to three hours of supervised contact per fortnight.
The mother has alleged that since about May 2020, the child has been the subject of physical and emotional abuse, and neglect occurring in the father’s household. There has been significant involvement of the police in the short life of the child. It is undisputed that the police have been called by the father, the stepmother, the mother and third parties in response to concerns regarding the child. There have been numerous reports submitted to the Department of Communities and Justice (“DCJ”) with respect to the safety of the child in the father’s care. These reports have been made by the mother, third parties and mandatory reporters. These matters will be discussed as necessary in more detail below under s 60CC(2)(b) of the Act.
The mother’s time with the child was increased, by consent orders on 24 June 2021 to five nights per fortnight. However, the father claims that shortly after the orders to increase time were made, the following contraventions occurred:
(1)2 July until 16 July 2021;
(2)21 July until 24 July 2021;
(3)4 August until 13 August 2021; and
(4)18 August until 25 September 2021, except for a short amount of time on 10 September 2021.
It should be noted that for the majority of the time between the alleged contraventions, the child was still in the care of the mother. This was in accordance with the consent orders. During this period of time, the father spent time with the child on 3 July 2021, 5 July 2021 and 7 July 2021, from 24–30 July 2021 and 12–13 August 2021.
The father asserted that during the period of time the child was primarily in the mother’s care, she was taken frequently to the mother’s treating medical professionals. The mother’s withholding of the child caused her to miss numerous appointments with the child’s treating psychologist and a specialist allergy appointment.
In February 2022, the mother commenced treatment with Ms BC, the psychologist nominated by the ICL. In March 2022, the mother attended upon a clinical psychologist of her own choosing, Ms BD and completed six sessions. The mother continued her attendance upon Ms BC, her final psychological appointment was in May 2022, following the completion of six sessions.
The mother’s time with the child reverted again to unsupervised time, following the filing of Ms BC’s report on 2 June 2022.
From 8 October 2022 until present, the mother’s time has been limited to three hours of supervised contact per fortnight.
SOME FURTHER FACTUAL AND PROCEDURAL HISTORY
The procedural history after the 2020 orders has some real importance for the determination of the issues. It is therefore helpful to set it out in some detail, as well as including certain events which are best understood in relation to the procedural history.
The mother filed a Notice of Appeal against the 2020 orders on 21 April 2020.
She filed an Application in a Proceeding on 27 April 2020 (“stay application”) seeking a stay of the 2020 orders pending the outcome of her appeal. The mother’s argument in support of her stay application was that the orders put the child at risk of serious physical and emotional harm.
The mother’s stay application was heard on 6 May 2020 and on 7 May 2020, McClelland DCJ dismissed the application. His Honour made a finding that the mother had failed to facilitate the child spending time with the father in accordance with the 2020 orders. Furthermore, his Honour found that the mother had not complied with orders to engage with psychological treatment, as a consequence the child instead of spending five nights per fortnight with the mother, would instead spend only one day and one night with the child per fortnight in accordance with Order 5 of the 2020 orders (Cheadle & Pointer [2020] FamCA 327 at [27]). Despite the mother’s argument to the contrary, it is clear that from 7 May 2020 Order 5 was to remain in force, irrespective of any subsequent engagement with psychological support by the mother.
The child’s change of residence was to take effect 28 days from 26 March 2020. This did not occur and on 27 April 2020 the father filed an Application in a Proceeding for a recovery order. Justice Rees made recovery orders pursuant to s 67U of the Act on 12 May 2020. The child was returned to the father on 13 May 2020, one hour prior to the recovery order being executed.
The father filed an Application in a Proceeding seeking a further recovery order on 1 October 2020 when the child was not returned to his care on 28 September 2020. The child was returned the following day and the Court was not required to make a recovery order.
The mother’s appeal was dismissed on 10 November 2020. For present purposes it is apposite to record that the Full Court commented in Cheadle & Pointer [2020] FamCAFC 277 that:
30. The suite of orders sought by the mother at trial elegantly vindicated the opinion evidence of the Family Consultant about the mother’s anxiety over the child’s safety (at [73]). She proposed that the child live with her and she have sole parental responsibility. While she accepted the child could spend time with the father, it would only ever be under a slowly graduating and constricted regime, subject to the father meeting her meticulous conditions. Those included: his compliance with her written directions about how to properly care for the child, him checking on the child throughout the night at three hourly intervals, and him sending her texts and photographs to verify the child was well. The mother also sought an order compelling the father to send her quarterly reports confirming that his mental and physical health was satisfactory.
31. Despite such strong evidence about the impairments to the mother’s parenting capacity, the primary judge’s decision to reverse the child’s residence was only made after earnestly cautious consideration (at [441]-[449]).
32. The mother’s first proposition in the appeal was that the primary judge’s finding about her high level of anxiety was “not supported by the evidence” (Ground 1). The proposition should be rejected. Not only was the finding open, it is difficult to see how the primary judge could have avoided making it.
33. The mother submitted she has never been diagnosed with any recognised psychological condition, including anxiety. That may be correct, as there was certainly no evidence elicited at trial of her positive diagnosis in the past. However, the submission is misconceived because it misunderstands the evidence of the Family Consultant and the finding of the primary judge. No finding was made that the mother suffers from a diagnosable psychological condition. In fact, the primary judge expressly found it was impossible to say whether either party’s presentation was due to “any underlying mental health pathology” (at [120]).
34. The primary judge only found the mother experienced undue anxiety about the child’s safety with the father, which was liable to induce anxiety in the child and damage her relationship with him. Although unappreciated by the mother, there is an obvious distinction between the diagnosis of her suffering an identifiable clinical condition and the colloquial description of her anxious behaviour. The evidence and findings emphasised the latter, but did not broach the former.
35. Tellingly, in her Summary of Argument filed in the appeal, the mother admitted she was worried about the child in the father’s care, but submitted she had good reason to be so…
It can be emphasised here, that it was therefore beyond argument, before the Deputy Chief Justice, and upheld by the Full Court, that the mother suffered manifest impairments to her parenting capacity, and although there was no, and has not been any, diagnosis of a recognised psychological condition afflicting the mother, her parenting impairments were sufficiently serious to require a change of the child’s residence to the father.
The mother filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) on 10 June 2021, seeking orders for the child to live with her and for sole parental responsibility. The mother additionally sought interim orders suspending the 2020 orders and injunctive orders to protect the child from the father. The father filed a Response on 21 June 2021 seeking to maintain sole parental responsibility, for the child to continue to live with him and for the mother to spend time with the child as agreed.
On 24 June 2021, consent orders were made in Division 2 for the child to spend time with the mother each alternate week from after school Friday to before school the following Wednesday, expressed in the same terms as Order 6 of the 2020 orders. The parties were ordered to attend a Child Inclusive Conference on 1 July 2021.
The Child Inclusive Memorandum was released to the parties on 8 July 2021.
An ICL was appointed on 2 August 2021.
On 16 September 2021, the father filed an Application in a Proceeding seeking a recovery order on the grounds that the child had been withheld on numerous occasions since the commencement of the orders made on 24 June 2021. The father filed an Amended Response on the same date seeking dismissal of the mother’s Initiating Application on the basis that the mother has failed to meet the threshold to reopen proceedings as set out Rice and Asplund. The father sought that orders made subsequent to 26 March 2020 be discharged. The mother filed a response to the father’s Application in a Proceeding and a supporting affidavit on 27 September 2021, wherein she alleged that the father posed a risk of harm and sought the dismissal of the father’s application. The mother returned the child on 25 September 2021.
The father’s Application in a Proceeding for a recovery order was heard on 29 September 2021 by a senior judicial registrar. The Court discharged the consent orders made on 24 June 2021. The Court ordered that the child spend supervised time with the mother each alternate Saturday from 10.00 am until 1.00 pm.
The mother filed an Application for Review of the orders of the senior judicial registrar on 19 October 2021. As part of the application she sought orders that the child live with her and spend supervised time with the father on alternate Saturdays. The mother filed an Application in a Proceeding on 16 November 2021 seeking leave to adduce further evidence in support of her Application for Review.
The Application for Review was heard by Judge Taglieri on 15 December 2021, who delivered judgment on 2 February 2022. Orders were made which discharged the interim orders of 29 September 2021 and Orders 5, 6, 8, 9, 10 and 11 of the 2020 orders (“February 2022 orders”). The mother was ordered to complete six sessions with a clinical psychologist, nominated by the ICL, following which unsupervised time was to occur on Friday to Monday in week one, and Thursday evenings in week two (Orders 5, 6 and 7). It was further ordered that the mother was to continue her attendance upon the treating psychologist once per month for at least 12 months. The mother’s time with the child was to revert to supervised time in the event that she failed to attend two consecutive monthly psychologist appointments.
The matter was transferred to Federal Circuit and Family Court of Australia (Division 1) on 4 February 2022.
On 21 March 2022, at a point in time when the mother self-represented, the mother filed an Application in a Proceeding seeking that Ms BD be appointed as her clinical psychologist. On 25 March 2022, the mother advised the Court that she had completed her six sessions with Ms BD. The Independent Children’s Lawyer opposed the mother’s application on the grounds that the mother’s issues with anxiety could not be addressed within a few weeks. The matter was listed for interim hearing on 6 May 2022.
On 5 April 2022, the mother filed an Application in a Proceeding seeking that Dr BA be appointed as the Single Expert Witness. The parties were unable to agree on the terms of reference, the payment of the Single Expert Report and scope of documents that should be provided to Dr BA for the purpose of preparing his report. On 3 May 2022, the ICL filed an Application in a Proceeding seeking that Dr BA be appointed as the Single Expert Witness and establishing the terms of reference. The father filed a Response on 5 May 2022 which, in addition to orders regarding the appointment of Dr BA, sought that the child be placed on the Airport Watch List. The mother filed a Response to the ICL’s application on 12 May 2022 seeking its dismissal.
On 29 April 2022, the mother amended her Application in a Proceeding filed 23 March 2022 to include orders that the child live with her from Wednesday until Saturday 4.00 pm in week one and from Wednesday until Sunday 10.00 am in week two and that the ICL be discharged. The father filed two separate Responses on 5 May 2022, seeking the dismissal of the mother’s application filed on 23 March 2022.
An interim hearing took place on 6 May 2022, with orders delivered on 16 May 2022 which dismissed the parties’ extant Applications in a Proceeding and Responses. The Court made orders that the child to be placed on the Airport Watch List and Dr BA be appointed the Single Expert Witness.
As noted already, the report of Ms BC regarding the mother’s therapeutic intervention was released to the parties on 2 June 2022.
The father’s household tested positive to COVID-19 in July 2022. The child started showing symptoms and returned a positive PCR test seven days later.
On 26 July 2022, the mother filed an Application in a Proceeding seeking that the child be made available for collection by the mother to allow her to be taken to E Hospital for a review and treatment and to remain living with the mother until the father and his household test negative for COVID-19. The father filed a Response on 30 July 2022 seeking dismissal of the mother’s Application. The mother amended her Application in a Proceeding on 1 August 2022, seeking that the February 2022 orders be discharged. In their place the mother sought orders that the father spend time with the child in week one on Thursday from 2.50 pm to 7.00 pm and in week two from 2.50 pm Friday to Sunday 5.00 pm. The mother sought that the father’s time be conditional upon the father seeking psychological treatment for his depression and anxiety. On 1 August 2022, the Court dismissed the mother’s Application in a Proceeding of 26 July 2022 and the father’s Response of 30 July 2022 and stood over the application filed 1 August 2022.
The mother filed a further Amended Application in a Proceeding on 4 August 2022 seeking an urgent interim hearing and make up time for the time missed while the child was isolating because of COVID-19. The Court noted on 5 August 2022 that it would consider the issue of leave with respect to that further Amended Application in a Proceeding on the next occasion.
The mother filed an Application for Review with respect to the orders of 5 August 2022 on 25 August 2022, specifically the judicial registrar’s decision not to list the mother’s Application filed 4 August 2022. The father filed an affidavit with respect to the mother’s Application for Review on 19 October 2022. On 24 October 2022, Austin J dismissed the mother’s Application for Review and the mother’s Amended Application in a Proceeding filed on 4 August 2022 was listed for hearing before the docket judicial registrar on the next available date.
The mother attended the child’s school and collected her on three occasions in August and one occasion in September 2022. The father alleged these events occurred in circumstances where the mother’s time with the child was supposed to be supervised and, accordingly, she was in breach of the injunctive Order 12(a) of the 2020 orders which prohibited the mother from being with 50 metres of the child’s school, except for the purposes of collecting or delivering the child in accordance with Court orders. The mother maintained at the final hearing that she was collecting the child in accordance with the February 2022 orders as it was her “entitled time” and disputed that her time with the child was meant to be supervised. The father’s evidence was that in September 2022 a verbal argument occurred between the parties outside the child’s school about who was to collect the child. The father claimed he let the mother take the child in order to protect the child from further conflict. He made a police report of this incident.

The mother attended the father and child’s appointment with Dr N in September 2022, despite not being invited. The father deposed that the mother refused to leave at his request and entered Dr N’s consulting rooms. The father’s account that the child became very distressed in substantiated by Dr N’s notes of the appointment, tendered by the ICL as part of Exhibit 8. The mother recommenced unsupervised time with the child later in the afternoon. The mother took the child to the mother’s general practitioner that afternoon and the child purportedly made disclosures about the father and stepmother.
The father attended a police station the following day to report the incident in September 2022. The police report tendered by the ICL detailed that the police attended the father’s residence on that day and briefly spoke with the child, who denied that she was injured, upset or worried. Police attended the mother’s residence and spoke to her about the incident on the previous day, the police recorded that they were satisfied that neither party had committed an offence. The mother called the police at some time around 10:30 pm to report that the father had, at some point in the previous two days, grabbed the child by the arm and caused the child to hit the bathroom door frame then dragged the child along the floor. The mother was unable to provide any coherent explanation for why she had not disclosed her concerns to the police when they had spoken to her earlier in the day. The police re-attended the father’s residence at approximately 12.12 am the next day and spoke with the child. The child was recorded as appearing happy, albeit tired, and the police noted that they were satisfied that neither of the alleged offences occurred and expressed concerns about the credibility and accuracy of the mother’s reports.
The father was due to collect the child on Monday 26 September 2022 at 2.55 pm from the changeover location in order to take the child on a planned holiday to Region BE. The mother did not take the child to the location as required. The father attempted to contact the mother and subsequently wrote to the mother’s solicitor and the ICL. An email and several phone messages from the mother were annexed to the father’s affidavit filed 11 February 2023, wherein she indicated that she intended to “make up 9 days and 2 afternoons”. On 27 September 2022 the father informed the mother that if the child was not returned the father would seek a recovery order. On 28 September 2022, the mother told the father that she was at Region BF with the child and intended to return on Sunday 2 October 2022.
The father filed an Application in a Proceeding on 28 September 2022 seeking a fourth recovery order and the suspension of Order 5 made on 2 February 2022, which provided for the mother’s unsupervised time with the child, conditional upon the mother’s compliance with other orders to engage with a psychologist. The mother filed an affidavit on 30 September 2023 in which she argued that the child was at risk in the father’s care and sought for the child to remain in her care until the evening of 2 October 2022. Consent orders were made on 30 September 2022 for the child to return to Sydney that evening with the father to collect her from the airport.
The mother filed a Response to the father’s Application in a Proceeding on 4 October 2022 seeking that the child live with her and time with the father be suspended. In the alternative the mother sought that Order 5 of 2 February 2022 remain in effect.
On 5 October 2022, the Court suspended Orders 5 and 6 of the 2 February 2022 orders and, in their place made orders for the child to spend supervised time with the mother each alternate Saturday for three hours.
The father filed an Amended Response on 13 October 2022 seeking sole parental responsibility, the child live with him, permission to relocate interstate, an order for the child to spend no time with the mother and a number of injunctions pursuant to s 68B of the Act.
Interviews with the Single Expert Dr BA occurred on 10 October 2022. The Family Report dated 30 November 2022 was released on 7 December 2022 (“Family Report”).
On 10 November 2022, the father filed a Response to an Application in a Proceeding and supporting affidavit which sought the dismissal of the mother’s Further Amended Application in a Proceeding filed on 4 August 2022. The matter was set down for interim hearing on 7 February 2023 by orders made on 11 November 2022.
On 23 November 2023 I made orders in chambers listing the matter for Case Management Hearing on 12 January 2023.
The mother filed an Amended Application in a Proceeding on 9 December 2022, which sought the discharge of Orders 2 and 3 of 5 October 2022 requiring her time with the child be supervised. In their place the mother sought the reinstatement of overnight time with the child, that the parties be at liberty to telephone or video call the child on her own phone and for various restraints to be put in place restricting the parents from, among other things, not using high fat or high sugar foods as a means of managing the child’s behaviour. The father filed a Response to an Application in a Proceeding and supporting affidavit on 29 February 2023. The father sought orders that the child spend no time and have no contact with the mother or in the alternative only spend three hours of supervised time with the mother on the third Saturday of each month.
The matter was listed before me on 2 February 2023. Orders were made pursuant to s 102NA of the Act, prohibiting the father from personally cross-examining the mother. I vacated the interim hearing listed on 7 February 2023, dismissed the mother’s Application in a Proceeding filed on 26 July 2022 together with the father’s Response and listed the proceedings for final hearing to commence on 14 February 2023 with an estimate of five days.
The mother filed an Amended Application for Final Orders on 13 February 2023.
The final hearing commenced on 14 February 2023. The hearing was not completed in the allocated time and the proceedings were stood over part heard to 6 April 2023. The evidence was concluded on 6 April 2023 and I made orders that parties were to file and serve written submissions and submissions in reply. The final submissions in reply were filed by the mother on 12 May 2023.
The recitation of the numerous applications and responses filed by both parents since the 2020 orders demonstrate at least two important points. The first is the obvious and entrenched warfare between the parties.
The second is that despite the lengthy consideration of the child’s best interests by the Deputy Chief Justice leading to sole parental responsibility and primary residence being allocated to the father, followed by the failure of the mother’s appeal, she almost immediately resisted compliance with the 2020 orders, betrayed considerable anxiety by seeking a welfare by police in May 2020 and by June 2021 commenced proceedings to vary the 2020 orders in which she returned to allegations of the child being at risk in the father’s care, and sought an order for sole parental responsibility. She maintained this position during the final hearing before me.
Thus it can be seen that, in broad terms and bearing in mind the child was born in 2012 and the proceedings were commenced in 2013, it has been the mother’s position for almost the child’s entire life that the father poses a risk to the child and there is no acceptable care arrangement for the child other than to live primarily with her, for her to have sole parental responsibility and exercise tight control over parenting outcomes.
CURRENT CIRCUMSTANCES
The father resides with the stepmother, the child and ZZ at BG Street, Suburb BH.
The father continues to be engaged with a psychologist, Mr D of the OO Group. The father initially attended upon Mr D in January 2018, with the mother, however the mother ceased attending after three sessions. The father has continued consulting with Mr D with respect to the child, the father’s family, attachment theory, relationship studies and support strategies for the child.
The mother has not re-partnered and lives at BI Street, Suburb BJ, which she owns. According to the father’s evidence the mother periodically has lodgers living with her. In reports from TT Family Centre tendered by the mother it is recorded that an unidentified woman arrived in the mother’s apartment during a supervised visit in February 2022 whom the mother identified as a lodger. This person was still residing with the mother in March 2022, although the mother told the supervisor that there would be no more lodgers once she moved to a two bedroom apartment (Exhibit 5, p.355–356 and 360). There was no further evidence from the mother about other persons staying in her home.
The mother commenced her attendance upon Ms BK in August 2022, in accordance with the February 2022 orders which required her to receive monthly psychological assistance. The mother, as at 8 January 2023, had attended 10 individual sessions and has represented to Ms BK that she is willing to continue attending therapy on a monthly basis.
PROPOSALS AND ISSUES IN DISPUTE
The mother’s proposal is set out at Annexure “A” below. In summary, she sought orders for sole parental responsibility in relation to the child’s education and health and shared parental responsibility for all other major long-term issues relating to the child. She sought further orders that the child live with her and spend time with the father each alternative weekend on Saturday from 9.00 am to 5.00 pm and on Sunday from 9.00 am to 5.00 pm and during school holidays for a range of consecutive days from 9.00 am to 5.00 pm.
The father’s proposal is set out in Annexure “B”. He sought sole parental responsibility, for the child to live with him, and to spend no time, and have no communication with the mother. He further sought orders permitting him to relocate the child’s primary residence outside of Sydney, including interstate, without the consent of the mother. In his written submissions the father supported the ICL’s Proposed Minute of Orders except for paragraphs 3(a) and 3(b) which related to the ICL’s proposed time with the mother and paragraph 18 which sought payment for the ICL’s costs. In the event that the Court made the ICL’s proposed orders for identity contact, the father sought that such supervised time be limited to four or six times a year and be for two to four hours on each occasion. The father sought that the restraints sought by the ICL be amended to include protections for the stepmother and ZZ, and that the orders sought by the father under the heading “Authorisations without consent of the Mother” be included.
The ICL’s proposal is set out in Annexure “C”. The ICL’s proposed orders are, in summary, that the child live with the father, the father hold sole parental responsibility and the child have monthly supervised contact with the mother. The ICL further proposed a range of restraints in relation to the mother’s conduct.
The remaining issues in dispute are:
1. Whether the child is at risk of physical, psychological and/or emotional harm in the unsupervised care of either parent, bearing in mind that such a finding was made in respect of the mother in Pointer & Cheadle, and if so:
(a)The nature and extent of that risk;
(b)Whether any identified risk can mitigated, and if so, how; and
(c)If risks are identified in relation to both parents, how the competing risks compare.
2.Whether the child should return to live primarily with the mother;
3. The allocation of parental responsibility;
4. The nature and extent of time the child should spend with the parent with whom they are not living;
5. If supervision is required in order to mitigate the risk posed by a parent, should that supervision be limited in time or until certain conditions are met, and if not, should there be a mechanism by which the requirement for supervision can be revisited in the future;
6. How likely is the child to be affected by each other’s proposals as to her future living arrangements and time with the other parent;
7.If the Court determines that the child’s time with the mother required long term supervision (as recommended by Dr BA), is there any benefit to the child in such an arrangement; and
8. If the child is ordered to live with the father whether the father should be allowed to relocate the child.
EXPERT EVIDENCE
The Family Report, relied upon by all parties was prepared by Dr BA, dated 30 November 2022. The Family Report was based, as described by Dr BA, on previous orders and judgments of the Court, on the material filed by the parties so far in the proceedings, the Family Reports prepared by Dr B dated 26 October 2015 and 16 July 2018, a report by Ms BC, Clinical and Forensic Psychologist, Child Inclusive Conference Memorandum to the Court dated 8 July 2021, some documents produced on subpoena, and the interviews conducted, as set out at the commencement of his report.
I will refer to the content of the report as necessary during the course of these reasons.
Family Report Recommendations
Dr BA made recommendations at paragraph 250 of the Family Report to the following effect:
1. The maintenance of sole parental responsibility and residency with the father.
2. The contact with the mother should be limited given her inability to act in the child's best interests. Her lack of insight and inability to alter her behaviour will continue to undermine the security of the child’s placement in the father's home, undermining his capacity to provide safe and effective care and priorities her developmental needs. As there was no indication that this would change, monthly supervised visits would be an appropriate arrangement for the mother's ongoing contact with the child until the age of 16.
3. Both parents should undertake to not denigrate the other parent or members of their extended families.
4. The child should attend a single GP. I note that the mother had now withdrawn her complaint and supports [Dr N] maintaining this therapeutic role. The current therapeutic intervention for [X] and the family should continue as negotiated between the parties and their therapeutic team.
5. This assessment identified the importance of supporting a stable base for the child in her father's care. The proposed move to Brisbane with the father could be protective for the child by removing her from the direct influence of her mother. The child’s communication with her mother was identified to have fuelled her oppositionality and explosive behaviour. I would thus respectively recommend that Orders should be made which accommodate the father's relocation to Brisbane should he pursue this plan.
OTHER EVIDENCE
The mother also relied upon evidence by Ms BK, the mother’s treating psychologist. Ms BK produced a report dated 9 February 2023 contained in an affidavit. Ms BK was cross-examined.
The stepmother gave evidence and was cross-examined.
THE CHILD
The child has attended the following clinicians and support persons:
(1)Dr N, General Practitioner at T Medical Centre;
(2)Dr BL, Clinical Psychologist at OO Group since October 2020;
(3)Dr WW, BM Mental Health Service, from December 2020 to November 2021;
(4)Ms BN, BO Services from January 2022 until August 2022;
(5)Ms BP, Dietician at U Medical Centre;
(6)Dr M, paediatrician; and
(7)NSW Police Youth Liaison Officer BR, who visited the father’s residence between September 2021 until early 2022, to engage with and provide proactive support for the child.
When in the mother’s care the child has attended upon Dr SS and Dr BS at BT Medical Centre.
Dr WW of BM Mental Health Service diagnosed the child with anxiety, social anxiety and a behavioural disorder in September 2021.
The father has deposed that the child has experienced considerable difficulty with emotional regulation while in his care. He gave evidence that the child has had “meltdowns” in response to comparatively minor triggers, such as difficulty choosing breakfast, not wanting to shower or brush her hair among other incidents. This has resulted in instances of the child screaming for extended periods, breaking furniture, banging doors and breaking mirrors and a glass sliding door. At times the child has physically hit the father as well as picking up an axe and a hammer. The father, stepmother, and third parties have called police and emergency services for assistance. The child is currently on a waitlist for an evaluation for autism, though it has been noted that it is unlikely that she will meet the necessary requirements for a formal diagnosis.
The mother was adamant that the child has not displayed any behavioural issues in her care.
I note that, according to the evidence, the child has not demonstrated notable concerning behaviour at school.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe there has been family violence or it may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for her parents to have such equal shared parental responsibility (s 61DA(2) and s 61DA(4) of the Act). Neither party sought to apply the presumption or an order for equal shared parental responsibility. I will express my conclusion about the allocation of parental responsibility later in these reasons. It is first necessary to make findings and express conclusions on the question of the best interests of the child.
The best interests of the child are the paramount consideration when making any parenting order (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act, although discussion of each consideration is not necessary (Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78]). I have considered each of matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the parties and the ICL conducted the final hearing.
PRIMARY CONSIDERATIONS
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in s 60CC(2)(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(1)A “meaningful relationship” is one which is “important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405 (“McCall”));
(2)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents” (McCall at [118]–[119]); and
(3)The legislation aspires to promote a meaningful relationship, not an optimal relationship (M & S (2007) FLC 93-313; Godfrey & Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407).

At present, the child has a meaningful relationship with both parents, although with both it is characterised by difficulties. Dr BA said that while, theoretically, it would be in the child’s best interests to have a significant and substantive relationship with both parents, such an outcome was probably impossible, because of concerns about the nature of the mother’s behaviour (Transcript 6 April 2023, p.35 lines 40–45).
So the difficult question is the extent to which the child would benefit from a meaningful relationship with both parents prospectively and how this may be achieved. The answer to these questions largely depends upon the conclusions to be reached in relation to the next primary consideration.
Section 60CC(2)(b), “abuse” and “family violence”
Both parents have raised concerns with respect the child being at risk of abuse or exposed to family violence in the care of the other parent.
It is necessary here to set out some statutory definitions. The terms “abuse” (see s 4 of the Act) and “family violence” (see s 4AB(1) of the Act) are defined as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) …
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include, but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f) …
(g) …
(h) …
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) ...
A child is exposed to family violence if the child “sees or hears family violence, or otherwise experiences the effects of family violence” (s 4AB(3) of the Act).
A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse (M & M (1988) 166 CLR 69 (“M & M”)). Section 60CG of the Act requires the Court to consider the question of “unacceptable risk of family violence” and appropriate safeguards in making orders.
The Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) has recently made clear that:
7. … risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
The Full Court in Isles & Nelissen gave detailed consideration to earlier authority, and after setting out paragraphs from Sahrawi & Hadrami (2018) FLC 93-857, said:
40. The plurality [in Sahrawi] clearly differentiated the proof of asserted facts from the separate question of whether there is an unacceptable risk of harm, confirming the latter enquiry is still evidence-based, but affirming it need only give rise to the conclusion that certain alleged behaviour may have occurred in the past or may occur in the future.
(Emphasis in original)
Finally, the Full Court in Isles & Nelissen cited the High Court decision in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38]–[39], and confirmed:
53. The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The mother argued that the child’s circumstances have changed since the hearing in 2019, and:
…as a result of the significant change in circumstances, the assessment of risk as previously determined by the Court three years ago must be determined afresh. It is not sufficient to simply rely on the previous findings of the Court in relation to whether the mother poses an unacceptable risk of harm to [X] and indeed, whether or not the father poses an unacceptable risk of harm to [X]
(Mother’s written submissions filed 5 May 2023, paragraph 5)
There have clearly been changes in the circumstances of the child as compared to the situation facing the Court at the final hearing in 2019 and when the 2020 orders were made. The child has moved from living with the mother to living with the father. This took place because the mother posed an unacceptable risk to the child. Since the 2020 orders, the lower Court (Division 2) and this Court have fluctuated between orders for the child’s time with the mother to be unsupervised then supervised again, but despite the mother’s numerous applications to change the child’s primary residence, she has remained living with the father. In my view, the way to frame the appropriate approach of the Court to the present determination, is to consider whether the mother continues to pose the same, or substantially the same risks to the child if she was returned to live with the mother as her primary carer. If the Court is persuaded that is the case, it would have to be persuaded that any risk in the father’s care was sufficiently worse and incapable of mitigation to warrant changing the child’s living arrangements yet again and exposing her to renewed risk in her mother’s care. The mother claims this is the situation because the evidence discloses a magnitude of the risk to the child, if she continues to live with the father, which is substantial and no consideration was given by the expert, the ICL or the father to ways in which those risks could be mitigated.
Risk in the father’s care
The mother alleged that the father poses an unacceptable risk of physical, emotional and psychological harm. She argued that this risk arises from the father’s poor parenting capacity which has resulted in physical and emotional abuse towards the child, from an unhealthy dynamic between the child, the father and the stepmother, the father’s mental health and the child’s lack of support while in his care.
The mother’s case in this regard was primarily limited to the period after the 2020 orders, although as will be explained, she also sought to raise allegations which reached back to the time before the 2020 orders, or she repeated allegations which were the subject of consideration in Pointer & Cheadle.
Physical and emotional abuse
The mother contended that the father has grave difficulties parenting the child, which arise from his “emotionally dysregulated behaviour which manifests in the physical harm” to the child (Mother’s written submissions filed 5 May 2023, paragraph 68).
In commencing a consideration and assessment of the mother’s allegations about the father, it is relevant to repeat that as early as May 2020, the first day after the child’s change of residence after the mother had withheld her for five days, the mother called the police to request that they conduct a welfare check on the child. The police attended the father’s residence on the following morning and confirmed to the mother that the child was safe.
An incident said to have occurred in April 2021 was recorded in the Child Inclusive Memorandum to Court dated 8 July 2021:
32. [the child] spoke about an incident where [the father] dragged her, as she did not want to go and have a shower, when he asked her. [The child] said the door hit her on the waist and it hurt her, and she told [the father] he hurt her. [The child] alleged [the father] stated he did not care she got hurt. [The child] advised she told [the mother] about the incident and [the mother] had advised [the child] that the incident was not an accident. [The child] said she isn’t sure if [the father] accidentally hurt her.
The father admitted that sometime in April 2021, the child refused to have a shower. He claimed that he lifted the child under the arms and attempted to walk her to the bathroom, however, while doing so he caused her to accidentally hit the side of the bathroom door.
According to the mother in April 2021, the child purportedly told the mother that the father had caused her to hit her waist on a metal door frame leaving a large bruise and the child claimed he “did not care that she was in pain”. The mother called the child protection hotline who allegedly advised the mother to take the child to a doctor for a check-up. In April 2021, the mother asserted she took the child to visit Dr SS regarding among other issues the mother’s concern about the child’s bruise. Based on the subpoenaed medical records, tendered by the mother, this consultation occurred via telephone and there is no evidence that suggests Dr SS conducted a physical examination of the child’s bruise (Exhibit 5, p.325). The child purportedly indicated that she did not feel safe at the father’s residence, though this allegation was made in the telephone consultation, in the presence of the mother.
In mid-2021, following an argument between the father and the stepmother, the stepmother left the residence with ZZ and the child locked the father out of the house. The father called the police to assist in regaining entry into the house.
The next day, following an argument with the father, the child was seen by a neighbour holding an axe. The police were called by a third party and attended the father’s residence. The child would not engage with the police, who then called an ambulance to attend. The child was subsequently taken to hospital. The father informed the mother of these incidents four days later.
The following day, the mother and child attended Suburb BU police station to report a number of alleged incidents, including the alleged incident of bruising in April for the first time. The mother then took the child to Suburb BV police station about two weeks later. It appears from the police report that the mother provided photos, said to be taken in April 2021, of bruises on the child to the police. It is noted that the police report, tendered by the ICL (Exhibit 2, p 68), recorded that the photos did not include the child’s face and they were not tendered in evidence.
Among the allegations made by the mother to the police in mid-2021 were the following:
(1)Following the police’s attendance at the father’s residence in May 2020, the mother alleged that the father physically assaulted the child by “squeezing her cheeks” so strongly that she was in pain and twisted her leg, causing the child to limp. The child purportedly disclosed the events when she returned to the mother’s care over one week later. The mother appears to have made no report about this alleged incident until mid-2021.
(2)The mother alleged that the in October 2020 child told her that the father threw her off her bike, causing her to get scratched. The mother deposed that the child’s arm became infected.
(3)In January 2021, the mother deposed that the child had told her that the father had hit her causing palm-sized bruises on both sides. The mother purportedly provided photographs of the bruises to the police though it is noted that the photos do not contain the child’s face (Exhibit 2, p 67). Again these photographs were not provided to the Court.
In cross-examination, the father acknowledged that there were occasions where he had physically restrained or moved the child by holding her under the arms:
[COUNSEL FOR THE ICL] Okay. And, again, on those occasions, do you think it’s possible you might have hurt her, even inadvertently? Yes, in fact, I recall DCJ mentioning that she had reported, in an interview, that she hurt her leg with the slide at one occasion. It’s a …
[COUNSEL FOR THE ICL] Right. And do you accept, having heard that, that that might accurate? Yes.
[COUNSEL FOR THE ICL] Okay. And has [the child], during any of these incidents when you’ve been – I will just say you’re physically handling her – and you mean, when you’ve had to become physical – has she ever complained to you during those incidents that you’ve hurt her? Yes.
And have you ever said in response to [the child], “I don’t care”? Yes, I – I did and it’s – I did.
[COUNSEL FOR THE ICL] Okay. Right. Once? More than once? No, once.
Okay. All right. And you know that that’s a complaint that [X] has made about you, that she has told her mum that you tell her…?Yes. Yes.
…you don’t care, right? Yes.
[COUNSEL FOR THE ICL] Right. And so there’s some basis for – that’s true that you have said that once? I – I said that once because I was focused on getting her onto the couch, and it was just not on top of my mind. It was, “We need to get to the couch to talk,” and I acknowledge that it – it – it’s not the right thing to say.
(Transcript 20 February 2023, p.307 lines 23–46)
The father acknowledged during cross-examination by counsel for the ICL that the way he had responded to the child’s behaviour at times had been frightening for the child, and may have caused the child to be scared of him.
In mid-2021, an Apprehended Domestic Violence Order (“ADVO”) was made against the father to protect the child. In mid-2021, the father consented to a 12 month ADVO for the child’s protection on a without admissions basis. The ADVO restrained the father from assaulting, harassing or intimidating the child and prevented him from damaging or destroying any property owned by her. The father claimed that he consented to the ADVO in order to minimise any further stress of litigation on the child.
The mother made numerous reports to the police following the issuing of the ADVO, claiming the father had breached the provisions of the ADVO, seeking to have the ADVO conditions varied to include a distance clause so that the child would be no longer required to reside with the father and to have the provisions of the ADVO extended. It was recorded in the various police entries that the mother’s subsequent reports, which were sometimes verbal and sometimes typed, reiterated allegations against the father that had been investigated and unsubstantiated. The mother is recorded to have provided the police with documents produced under subpoena from the NSW Health Child Mental Health Team and the DCJ in the course of her attempts to demonstrate to the police that the father had breached the conditions of the ADVO. Between mid-2021 and late 2022, the police investigated the mother’s allegations and performed several welfare checks on the child and found that there was no cause for concern.
When questioned by counsel for the father about the amount of times she made a complaint to the police about the father, the mother replied that she “did not complaint [sic] the father to the police” (Transcript 14 February 2023, p.54 line 31), and only called the DCJ “several times” (Transcript 14 February 2023, p.55 lines 23–24).
It is important to record here that the mother made a number of serious allegations of abuse against the father prior to the first judgment. McClelland DCJ dealt with these before making the 2020 orders. For example, his Honour noted in Pointer & Cheadle that:
154. There is a concerning lack of immediacy in respect to the mother’s complaints regarding her concerns that the father has acted in a sexually inappropriate manner with the child…Despite her conversation with X being in November 2017, the mother did not raise the issue until she filled an Affidavit in this Court on 21 March 2018. Further it does not appear that the mother formally reported the incident until she had an appointment with Dr J on 21 May 2018…
The Deputy Chief Justice did not accept the mother’s allegations.
I observe the discussion above exposes a similar pattern in the mother’s allegations following the 2020 orders. Despite the seriousness of the allegations there was a significant delay from the alleged disclosure by the child, and in reporting her concerns to the police or the DCJ. After her initial reports the mother has repeatedly made allegations in an official capacity, often repeating allegations that had previously been investigated and found to be unsubstantiated. Some of the allegations mirrored those made prior to the first judgment. As recently as February 2023, mere days before the commencement of the first tranche of the final hearing, the mother spent seven hours at the police station recounting an alleged incident of violence perpetrated by the father in 2013. Of particular concern is that the police records tendered by the ICL indicated the mother “would only provide a statement if police would take action in form of (sic) charging [the father] of taking out an AVO…” (Exhibit 8, p.39).
However, putting to one side the allegations of the mother, the evidence was clear that concerns with respect to the child and her safety in the father’s care have been raised by external parties or agencies. The written submissions of the mother canvassed this evidence in painstaking detail. For example, as noted the DCJ was involved with the family. The records of the DCJ interactions with the child, the father and the stepmother between May and December 2021 record concerns about the child, and the tensions in the father’s household. The records contain allegations by the child that she and the father got angry with each other, and the father “hurt or annoyed” her. They show the child recognised she threw tantrums which the father found hard to deal with. However, the records also show that the risk assessment of the DCJ in the period May and December 2021 fluctuated and by January 2022 it had reduced from “Very High” to “High”. The DCJ at no point, according to the evidence, formed the view that the child was at “Risk of Serious Harm”. In January 2022, the DCJ referred to family to family therapy, at which point they became involved with BO Services.
In her submissions, the mother also made detailed reference to records from Child Protection and the Child Youth Mental Health Service Records from May and June 2021 to support the submission that “the underlying issue” was the father’s household not “[X’s]mental health” (Mother’s written submissions filed 5 May 2023, paragraph 23). However, those submissions tended to extract comments from often lengthy Progress Notes and record observations or opinions of health professionals which were not able to be tested, and which date from a period more than eighteen months before the final hearing. I do not accept this evidence demonstrates an adequate basis for the mother’s submission.
As noted and as accepted by both parties, the police have been called to the father’s residence in response to the child’s behaviour on several occasions between mid-2021 and early 2022. After 2021 the police were called to the father’s home on two occasions in early 2022, as a result of the child screaming and becoming distressed. It remained in dispute exactly who called emergency services on certain occasions. I am satisfied that the police have at various times been called by the father, the stepmother, the mother and third parties in response to concerns for the child while she had been in the father’s care.
As discussed above, the mother has sought that the Court make findings that the child’s behaviour in the care of the father and the need for involvement of the police on numerous occasions are indicative of the father and stepmother’s inability to manage the child’s behaviour and contends it reflects the father’s dysregulated behaviour.

Dr BA expressed views which were consistent with ongoing supervision of the mother’s time with the child up to twelve times each year:
… If the father was to have sole parental responsibility and primary residence, [the child] would experience a stable environment in which her developmental needs would be attended to in a consistent manner. That does not mean that it would be easy because [the child] has experienced difficulty at home in the care of the father. [The child] has experienced emotional responses. She has experienced behavioural problems. At times it has been difficult for the father and stepmother to provide effective management. That said, it would be my view that the – that [the child] would be likely to settle down under the circumstances identified, that she would experience greater instability and there would be a gradual adjustment to the consistent arrangements in the father’s care with less disruption caused by the communication with the mother. The problem of having no communication with the mother would cause some emotional difficulty for [the child]. [The child] loves her mother. When I saw her she wanted to live with her mother. There has been a very long history of [the child] being exposed to her mother’s expressed love and attention and support and I think it would be difficult if there would be no time. It was for that reason that I previously recommended that there should be time, however, the time should be supervised and limited.
(Transcript 6 April 2023, p.7 line to p.8 line 9)
… The – the benefit of limited time, first of all, would be maintaining a sense of understanding of her identity, knowing that her mother continued to love her, continued to be interested in her wellbeing and welfare. It would be beneficial for [the child] provided that the mother then in that context discontinued the nature of the concerning communications. There would need to be – it would need to be ensured that the contact was supervised, that there were no presents, gifts, additional forms of communication, no opportunities for the mother to reinvigorate her concerns about the father and – and the adequacy of [the child’s] care and so there would be the maintenance of a relationship in a more safe and contained manner. Whether it was exactly monthly or – or there would be some variation to that, I don’t have a view, but if it was – the more frequent the behaviour – sorry – the more frequent the contact, the more disruptive it will be for [the child] settling down and moving on with her life. I note that in the father’s trial affidavit that I read he was proposing that that should occur I think two or four times per year. Certainly, that would be enough to maintain [the child’s] sense of identity. There would be a potential benefit of it being more than that provided that the mother – there were appropriate safeguards in place to ensure that there weren’t further reinvigoration of the problematic parent child dynamics.
(Transcript 6 April 2023, p.8 lines 21–38)
… The two to four – four times per year framework is commonly used in – in the context of maintaining information about the child’s identity. I – I do think it would be difficult for – for [the child] for it to be limited to such a degree. I did think it would be beneficial for the father for it to be two to four times per year. I do think it would be difficult for the mother. I do not see that that would stop the mother from contacting third parties to find out how things were going for [the child] at school. I don’t think it would solve the problem that has been put to me and so I – I do think that on balance it should be closer to 12 times – 12 times per year rather than two to four times per year…
(Transcript 6 April 2023, p.23 lines 19–27)
The father argued that supervision should be much more limited. However, I am satisfied that the child should spend supervised time with the mother as proposed by the ICL, and broadly in accordance with the views of Dr BA, being the last Sunday each month plus an occasion close to Lunar New Year.
RELOCATION
As part of his Amended Response and final proposal the father seeks permission to relocate with the child to live possibly interstate. He has nominated Brisbane as the likely location in his evidence, although he made no final submissions about relocation. In cross examination the father said he had no immediate plans to relocate but would like to be able to do so if he and the step mother decided it was in the family’s best interests (Transcript 20 February 2023, p.318 line 4 to p.319 line 45). The mother implicitly opposes such a course while the ICL supports it.
A parent is entitled to live where they choose, and need not demonstrate “compelling reasons” to live where they propose to live (AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238 (“U v U”); Adamson & Adamson (2014) FLC 93-622 at [65]–[66]). However, since the best interests of the children are paramount, and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration (U v U at [89]).
However, parental responsibilities and maintenance of a meaningful relationship with each parent can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90 the Full Court noted:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U at [92]]:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
(footnote omitted)
In Franklyn & Franklyn [2019] FamCAFC 256, the Full Court has explained the applicable law as follows:
27. There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The father is entitled to live wherever he wishes, subject to compliance with Court orders. The orders for time with the mother are not inconsistent with a move interstate. As noted above, Dr BA expressed optimism that the child would settle her oppositional behaviour more quickly after a relocation. If the father moves to Queensland or any other place outside New South Wales, it will be necessary for him to make appropriate arrangements for the child to spend time with the mother in accordance with these orders. I propose to make orders specifying what should be done in the event of a relocation, as proposed by the ICL.
RESTRAINTS
Each parent proposes a range of usual restraints upon the other. I see no reason not to make some orders of this nature. The ICL sought a number of restraints, particularly regarding the mother’s conduct with respect of the child.
The ICL argued that the mother has shown that she will not comply with Court orders if she believes the child to be unsafe. They submitted that the proposed restraints are necessary in order to support the child’s ongoing stability and security in the father’s care.
The mother argued that the proposed restraints are extreme in nature and not warranted on the facts of the case. I disagree. The mother has demonstrated not only unwillingness, but also an inability to fully understand her obligations, to comply with Court orders she does not like or disagrees with. The evidence leads me to infer a likelihood that the orders made on the basis of these reasons will fall into that category. I consider the restraints necessary.
More specifically, the father sought orders restraining the mother from approaching or contacting the child’s half-brother ZZ. ZZ is an infant. The father mentioned these orders in his submissions but did not seek to justify them. I do not see they are necessary or anything in the evidence justifies the making of such orders. I will not make such orders.
MISCELLANEOUS
The nature of a range of other orders sought by the parties should be mentioned, without giving unnecessary detail. Each parent sought orders permitting them to apply for passports for the child. Since the father will have sole parental responsibility allocated to him, he should be the parent authorised to apply for the child’s passport and to hold it. The father also sought an order permitting him to apply for a Country BZ or Country CB Passport for the child. It was not clear why he sought such an order. No submissions were made about it. I am not persuaded to make any order concerning passports other than an Australian Passport.
Both parties sought orders permitting travel outside the Commonwealth of Australia with the child. In her submissions the mother pointed out that the maternal family live in Country H, she had travelled there with the child twice in the past, and returned. In light of the orders I have made about time with the mother, I see no purpose in making orders permitting the mother to travel overseas with the child. The mother’s record of refusing to comply with Court orders suggests considerable caution in permitting her to travel outside Australia especially to a country about which there is no evidence of it being bound by the Convention on the Civil Aspects of International Child Abduction. On the other hand, I see no reason to restrict the father from travelling with the child outside Australia. The child’s name should be removed from the Australian Federal Police Family Law Watchlist.
The father also sought an order permitting him to have a hyphen added to the child’s name, without the consent of the mother. Again there was no compelling reason put forward for such an order and I do not propose to make it.
The mother sought orders for more extensive notification from the father about the child’s activities and school progress than the orders proposed by the father or the ICL. In light of the limited contact to be ordered between the mother and the child, I am not persuaded such orders are generally necessary although I will include an order for the limited provision of information to the mother by the father.
ICL’S COSTS
The ICL made an application for their costs to be paid by the parties equally in the total amount of $27,793.27 inclusive of GST.
The mother resisted any order for costs against her in favour of the ICL. She argued that she has borrowed to pay legal fees against real property owned by her, personal loans from third parties and where possible, from her income. She further argued the proceedings before the Court relate to a highly complex, and difficult parenting matter.
The father contended that he has no capacity to pay Legal Aid the sum of $13,896.64. He gave detailed evidence of his financial position which I have considered.
The factors set out in s 117(2A) are to be taken into account in this regard. Furthermore, s 117(4) provides that if the Court considers a party would suffer financial hardship if the party had to bear a proportion of the costs of the ICL it must not make an order against that party in relation to the costs of the ICL.
There is no doubt the Court the parties received considerable assistance from the ICL and their counsel. In my view, this a factor which justifies a costs order in favour of the ICL. Neither parent satisfies me that there is any reason why they should not contribute to a publicly funded service from which they have benefitted.
However, I accept that an order for either parent to pay $13,896.64 would cause them to suffer financial hardship. However, I am not satisfied that an order against either for a smaller proportion of $4,500 would cause financial hardship. I will make an order that each parent contribute to the ICL’s costs in the amount of $4,500.
COSTS SOUGHT BY THE FATHER
The father sought an order that the mother reimburse him for his share of the costs associated with the mother’s supervised time with the child.
The father further sought the costs related to his Application in a Proceeding filed on 16 September 2021 noting that the orders dated 24 September 2021 reserved his costs of 24 September 2021. The father claimed the amount of $17,175.68 but provided no substantiation for this figure. I decline to make the order sought.
The father also sought a costs order in his favour in relation to the mother’s application for review filed 29 September 2021. He claims $8,908.33. However, the mother enjoyed some success in relation to this application and again the father provided no substantiation for the figure claimed. Again I decline to make the order sought.
COSTS GENERALLY
Both parents made a standard application for costs in their pleadings. Other than as already explained above, no claims or submissions were made about costs generally of the proceedings. The matters the subject of this judgment are clearly complex. I will make no order as to costs in this judgment, other than in respect of the ICL’s costs. I do not intend by this to preclude either party from making application in the appropriate form supported by affidavit, however, nor do I invite any such application.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

I certify that the preceding two hundred and ninety seven (297) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.
Associate:
Dated:       21 July 2023
ANNEXURE “A” – MOTHER’S PROPOSAL
A.       The Court notes the following definitions for the purpose of these Orders:
a.         “mother” means [Ms Cheadle] born […] 1977
b.        “father” means [Mr Pointer] born […] 1979
c.         “the child” means [X] born […] 2012
1. That the mother be permitted to provide a copy of the Family Report of [Dr BA] dated 30 November 2022 to her treating psychologist, [Ms BK].
2. That Parental responsibility be allocated between the mother and the father in the following manner:
2.1 The mother shall have parental responsibility for (“the child”) in relation to the child’s education and health save that the mother is obliged to:
2.1.1 Contact the father in writing and provide her views about any long-term issue relating to the child’s health;
2.1.2 Seek the father’s views and consult with him with regard to any such issue;
2.1.3 The mother and father shall each make a genuine effort to come to a joint decision about any such issue; and
2.1.4 If no agreement is reached between the parties, within 7 days of the issue arising then the mother shall make the final decision and advise the father in writing of that decision.

2.2 The mother and father shall have shared parental responsibility for all other major long-term issues relating to the child.

3. That the child live with the mother.
4. That the child spend time with the father during school terms as agreed between the parties and failing agreement:
4.1 Each alternate weekend, commencing on the first weekend of each school term as follows:
4.1.1 Saturday from 9.00 am to 5.00 pm; and
4.1.2Sunday from 9.00 am to 5.00 pm.

5. That during the school holiday periods, the child spend time with the father as agreed between the parties and failing agreement as follows, subject to order 5:
5.1 Commencing on the first Monday of the school holiday period, for five consecutive days from 9am to 5pm in the first week of the Term 1, Term 2 and Term 3 school holiday periods; and
5.2 For six consecutive days from 9am to 5pm on two occasions in the Term 4 (December/ January) school holiday periods precise days to be agreed between the parties in writing and failing agreement during the last two weeks of the school holiday period with each occasion commencing on a Monday;
5.3 For the purposes of these orders, school holidays are defined to commence at the conclusion of school on the last fay of term and will conclude at the resumption of school on the first day of term.

6. That the arrangements set out above shall be suspended to permit the child to spend time with the father on the following special days as follows:
6.1 On Christmas Day, in even numbered years, from 10am to 5pm;

6.2 On Father’s Day from 10am to 5pm;
6.3 On the child’s birthday:
(i) From 9am to 1pm, if the birthday falls on a weekend or during school holidays and the child is not in the father’s care;
(ii)From the conclusion of school until 6pm if it is a school day and the child is not in the father’s care.

7. For the purpose of the time arrangements referred to in these orders, for changeovers that do not occur at the child’s school, changeover shall occur as agreed between the parties in writing and failing agreement changeover shall occur at [CD Street, Suburb BY]at the commencement and conclusion of the father’s time with the child.

General:
8. That the party with whom the child is with will facilitate the other party speaking to the child by telephone, Skype, FaceTime, or other electronic means not less than once each week on a day that the child would not otherwise be spending time with the other parent.

9. Both parents will:
9.1 advise of the residential or contact address and phone number(s) of the child and of any changes to that address;
9.2 advise the other parent of an emergency and urgent message contact number to contact and of any changes to that number;
9.3 when either parent wished to take the child interstate on holidays give to the other not less than 7 days’ notice of the intended holiday specifying the intended destination, travel dates and contact numbers;
9.4 notify the other parent as soon as possible of any serious illness or injury suffered by the child whist in their respective care;
9.5 notify the parent of the full name and birthdate of any person who lives in the home with the child;
9.6 keep the other parent informed in relation to all medical, dental or other health related treatments being undertaken by the child or either of them including any prescribed medication, and the identity of the treating professionals;

9.7 keep the other informed as to all sporting, religious, cultural and educational events (which come to the notice of that parent) in which the child is from time-to-time involved or which relate to activities of the child although they themselves may not be involved, for example parent/teacher interviews, and at which parents may attend and each parent be so at liberty to attend, including a notification being provided to the other parent in the event the child is not going to attend the particular events or activities;
9.8 do all things reasonably practicable to ensure that the child attend any extracurricular event relating to an activity in which they are enrolled, and in the event they are unable to do so, will notify the other parent so that the other parent may have the option of taking the child to that activity;
9.9 do all acts and things to encourage and facilitate the child contacting and being contactable by telephone by the other parent when they are with them and ensure that the child is able to speak to that parent in a private environment and will facilitate such telephone time not less than once each week as provided for at Order 8 herein.

10. That neither party shall enrol the child in any sporting or recreational activities that take place during the time when the child would otherwise be with the other parent without the written consent of that parent.
11. That each party do all acts and things and sign all such instruments, documents, authorities and the like necessary to ensure that:
11.1 each party is at liberty to communicate directly with the child’s school in relation to the child without necessarily first referring to the other parent and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events in relation to the child;
11.2 each party is at liberty to communicate with any treating professional as to any health-related treatment being undertaken by the child without necessarily first referring to the other parent.

Overseas travel:
12. That the mother is permitted to take the child out of Australia PROVIDED THAT the mother gives to the father at least 4 weeks prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining to the trip including details of the airline with whom the child will be travelling, the intended destination, contact numbers and addresses for the child for the duration of the trip and the intended date and time of return, and provided also that such travel will not interrupt the time the child is to spend with the father in accordance with these orders.
13. That upon written notice being given by the mother pursuant to Order 12 herein, the father will within 7 days of the date of receipt of the said notice, sign all documents and do all things necessary to cause the child’s passports to be delivered or be processed and made available to the mother including, if relevant, signing all necessary passport applications and consent forms and providing the child’s birth certificate and any other associated documents required.

14. That the mother will retain the child’s Australian passport.
15. That within 7 days of receiving the relevant paperwork from the mother, the father shall do all such things, give all such directions and sign all such documents as may be necessary to apply for a visa for the child for any proposed travel in accordance with these orders.
16. That the parties shall within 28 days of the date of this order do all acts and things and sign all documents to the extent necessary to cause the child to be removed from the Family Law Watchlist.

17. That for the purpose of section 11 of the Australian Passports Act 2005:
17.1 The parties consent to the child having or being issued with an Australian travel document; and
17.2 IT IS NOTED that the child is permitted to travel outside the Commonwealth of Australia, in accordance with Orders 12 and 13 of these orders, using an Australian travel document.

18. That the parties shall do all acts and things and sign all documents necessary, within 7 days of being requested to do so, to make an application to the Australian Passport Office (or such other department administering the Australian Passports Act 2005), to enable the child to be issued with an Australian travel document.
19. That in the event that a party refuses or neglects to sign any document necessary to issue the child with an Australian travel document, such refusal with constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give considering to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
20. That neither party will hold or seek to obtain a foreign passport for the child without prior written consent of the other party or as provided for by these orders.

Restraints:
21. That each party be restrained from intimidating or harassing the other party and/or their partner and that each party is to take all reasonable steps to ensure that their partner and any other third party does not intimidate or harass the other party and/or their partner.
22.That each party be restrained from making critical and/or derogatory remarks about the other parent and/or their partner in the presence of hearing of the child and that each party is to take all reasonable steps to ensure that critical and/or derogatory remarks are not made about the other party and/or their partner by other third parties in the presence or hearing of the child.
23.Neither parent shall discuss these proceedings with or in the presence and/or hearing of the child.
24. Each party be and is hereby restrained from subjecting the child to any form of physical punishment or striking and each party shall ensure that no other person does so.
25. That if the police of child protection services attended upon one parent’s home that parent must notify the other as soon as reasonably practicable.
26. That the parties will do all acts and things to engage a parenting coordinator following the making of these orders as agreed between the parties and failing agreement, the parties to attend upon [Ms CE] at [CF Services] (“the parenting coordinator”) on such terms as are recommended by the parenting coordinator and each parent shall give meaningful weight to the views and opinions of the parenting coordinator in relation to the implementation of these orders.
27. That the parties shall share equally in the costs associated with the parent’s attendance upon the parenting coordinator.
28. That both parties shall do all acts and things necessary to authorise the parenting coordinator to liaise with their clinicians should the parenting coordinator wish to do so.
29. Pursuant to s.65DA(2) and s.62(B), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

ANNEXURE “B” – FATHER’S PROPOSAL
UPON APPLICATION TO THE COURT IT IS ORDERED:
1.All previous parenting orders be discharged.

PARENTING
Parental responsibility:-
2.The Father shall have sole parental responsibility for the major long-term issues for [X], born […] 2012 (“the Child”).

Live with
3.        The Child to live with the Father
Spend time with arrangements:
4.        That the Child spend no time with the Mother.
Parental Communication:
5.        That the Child have no communication with the Mother.
Other Orders:
Within one month of the orders being made:
6.Order that the Father be permitted to relocate the Child’s primary residence outside of the Sydney metropolitan area, including interstate, without the consent of the Mother.
7.Order that the Father be authorised to apply for and renew the Child’s Australian passport or apply for her [Country CB] or [Country CD] passports without the consent of the Mother.
8.Order that the Father be permitted to travel outside the Commonwealth of Australia with the Child without the consent of the Mother.
9.Order that the Father be permitted to apply for the child’s middle name to have a hyphen added […], without the consent of the Mother.

Restraints:-
10.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Mother is restrained by injunction from:
a. Approaching the Child or being within 500 metres of the Child’s place of residence, employment, school, or place of extracurricular activities or learning, for example. [Sports].
b. Contacting or communicating with or attempting to communicate with the Child, directly or indirectly, by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp, Instagram or any means, including using, facilitating or hiring third party people, friends, associates, agents or other persons, for example […] Child’s school friends or other people the Child may associate with or passing written messages to the Child.
c. Purchasing gifts or items for the Child including through the Child’s school or any third-party and such gifts are not limited to books purchased on behalf of the Child’s.
d. Giving any iPad or iPhone or any other electronic communication device, object capable of communicating or thing including written messages, cards, or letters to the Child without the written consent of the Father.
e. Removing or attempting to remove the child from the care of the Father or the Father’s nominee, including by a third party, associate or agent.
f. Taking the Child into the Mother’s care or having the Child in the Mother’s care.
g. Approaching, contacting or communicating with or attempting to communicate with the Child’s treating health professionals including but not limited to the child’s general practice doctor (GP), psychologist, and counsellor.
h. Approaching, contacting, or communicating with or attempting to communicate with the Child’s school including but not limited to the Child’s school principal and teachers.

11. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Mother is restrained by injunction from approaching the Father or attending upon or being within 500 metres of the Father’s place of residence or employment;
12. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Mother is restrained by injunction from:
a. Approaching [Ms G] or attending upon or being within 500 metres of her place of residence or employment; and
b. Contacting or communicating or attempting to communicate with [Ms G], including using any third party, associate, or agent of the Mother, by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp, Instagram or other social media.

13. Pursuant to section 68B of the Family Law Act 1975 (Cth) the Mother is restrained by injunction from:
a. Approaching [ZZ] or attending upon or being within 500 metres of his place of residence or school; and
b. Contacting or communicating or attempting to communicate with [ZZ], including using any third party, associate or agent of the Mother by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp, Instagram or other social media.

14. That parents are to keep each other informed of their mobile phone numbers and email addresses only.

15. That each parent be restrained by injunction from:
a. denigrating the other parent, or any other member of their household or family in the presence or hearing of any of the Child;
b. communicating with the other parent in any way that is other than respectful and civil;
c. discussing these proceedings with the Child or in the presence of the Child;
d. showing the Children any document(s) connected with these proceedings;

e. physically disciplining the Child;
f. consuming or being affected by any illicit substance or alcohol in excess of the legal driving limit, during any time the children are in his or her care; and
g. making arrangements to vary the arrangements for the child to spend time with or live with each parent through the Child;
h. each parent shall forthwith remove the Children from the presence from any other person who does so.

Family Law Travel Watchlist (dependent on Court’s decision concerning [X’s] time with the mother):-
16. That the child [X], born […] 2012 be removed from the Australian Federal Police Family Law Watchlist, and that the Australian Federal Police give effect to the order forthwith.

Ancillary orders:
17. That leave be granted for the Father to provide a copy of these final orders to Child’s school and treating health professionals including any counsellor’s.
18. An order that the father provide a copy of the following documents to any counsellor, psychologist or psychiatrist providing treatment to the Child in the future including, but not limited to:
a. The Reasons for Judgement accompanying these Orders,
b. [Dr BA’s] 30 November 2022 Expert Report,
c. Deputy Chief Justice McClelland’s Reasons for Judgment 26 March 2020,

d. [Dr B’s] 2015 Expert Report and 2018 Expert Report

ANNEXURE C – ICL’S PROPOSAL
IT IS ORDERED
1.The Father have the sole parental responsibility for the child [X] born […] 2012.

2. That [X] live with the Father.
3. That [X] spend time with the Mother:-
a.Unless otherwise agreed between the parties on the last Sunday of each month and
b.On the Sunday closest to the first day of [Lunar New Year] each year,

at such times as agreed between the parties and failing agreement from 10:00am to 1:00 pm.
4.For the purpose of Order 3, [X’s] time with her Mother is to be supervised by [TT Family Centre] for Children, or such other commercial supervision agency as agreed between the parties in writing, and the costs of such supervision, including report, is to be borne by the Mother.

5. In the event the Father relocates interstate with [X]:
a.The Father is to notify the M other in writing at least 21 days before such relocation and
b.The Father is to nominate a commercial supervision agency to supervise [X’s] time with the Mother in accordance with Orders 3 and 4, and provide details of such agency to the Mother at least 21 days before relocating.

6.That the Father do all acts and things necessary to authorise any school attended by [X] to send directly to the Mother a copy of [X’s] school reports and school photograph order forms.

7. Both parties are hereby injuncted and restrained from:
a.Providing any documents pertaining to these proceedings to any person other than their legal representatives, except as provided in Orders 7 and 8 below;
b.Discussing any allegations raised in these proceedings with or in the presence and/or hearing of [X];
c.Permitting or allowing any third person who is not [X’s] treating medical practitioner, mental health practitioner or person supporting [X] with the implementation of these Orders and/or her relationship with her parents, to discuss with [X] or in her presence and/or hearing any allegations raised in these proceedings;
d.Making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of [X] and each parent will use their best endeavours to ensure that no other person does so.

8. That the Mother be restrained from:
a.Communicating with the Father except as specifically provided in these Orders, and
b.Giving or sending or causing any third party to give or send to [X] any letters, cards or gifts except as provided in Order 16.

9.That the Father notify the Mother in writing as soon as practicable in the event [X] suffers a significant illness or injury.
10.Pursuant to Section 121 Family Law Act 1975 the Father has leave to provide a copy of these Orders to:-
a.        NSW Police for the purposes of the implementation of these Orders;
b.        Department of Community and Justice;
c.        Any school [X] may attend, and
d.        Any medical professional or medical facility [X] may attend.
11.Pursuant to Section 121 Family Law Act 1975 the Father has leave to provide a copy of the report of [Dr BA] dated 30 November 2022; a sealed copy of final orders made by Justice Harper and a copy of Justice Harper’s judgment to:
a.Any mental health practitioner or other service [X] may attend upon to assist her with the implementation of these Orders, and
b.Any mental health practitioner upon whom the Father may attend for treatment.

12.Pursuant to Section 121 Family Law Act 1975 the Mother has leave to provide a copy of the report of [Dr BA] dated 30 November 2022; a sealed copy of final orders made by Justice Harper and a copy of Justice Harper’s judgment to:
a.Any mental health practitioner upon whom the Mother may attend for treatment.

13.Pursuant to s68B of the Family Law Act 1975, the Court makes the following injunctions for the personal protection of the child, [X] born […] 2012:
a.That the Mother, [Ms Cheadle], be restrained from attending within 100 metres of any school that [X] born […] 2012 may attend;
b.That the Mother, [Ms Cheadle], be restrained from attending within 100 metres of the residence where the Father, [Mr Pointer] and [X] born […] 2012 may reside;
c.That the Mother, [Ms Cheadle], be restrained from collecting or causing a third party to collect the child [X] born […] 2012 from school or any other location, and
d.That the Mother, [Ms Cheadle], be restrained from communicating with or attempting to communicate with the child [X] born […] 2012 except in accordance with these Orders,

NOTING that the provisions of s68C apply in the event a police officer believes, on reasonable grounds, that the Mother has breached any of the above injunctions.
14.In the event [X] enters into the Mother’s care otherwise than in accordance with these Orders, the Mother is to immediately contact the Father by telephone and is to take all necessary steps to return [X] immediately to the Father’s care, or to the care of the Father’s nominee, at a location nominated by the Father.
15.That the parties keep each other informed of their contact telephone number, postal address and email address at all times.
16.That the Mother be at liberty to send [X] gifts and cards at Christmas time, on her birthday and for [Lunar New Year] NOTING that the Father is at liberty to inspect the items sent by the Mother and determine whether they are appropriate to be passed on to [X].
17.Within 42 days of the date of these Orders the Mother is to pay to Legal Aid NSW the sum of $13,896.64 being the Mother’s share of the Independent Children’s Lawyers costs.
18. Within 42 days of the date of these Orders the Father is to pay to Legal Aid NSW the sum of $13,896.64 being the Father’s share of the Independent Children’s Lawyers costs.

File number(s):	SYC 7392 of 2013
Judgment of:	HARPER J
Date of judgment:	21 July 2023
Catchwords:	FAMILY LAW – PARENTING PROCEEDINGS – Where the child has been the subject of parenting proceedings for almost the entirety of her life – Parenting orders were made on a final basis in March 2020 (“2020 orders”) – Where the Court found the mother was an unacceptable risk of harm to the child – Where 2020 orders changed the residence of the child to the father and allocated him sole parental responsibility – 2020 orders were upheld on appeal – Where mother commenced fresh proceedings on 10 June 2021 seeking that the child live with her and orders for sole parental responsibility – Where father seeks orders that the child live with him, he hold sole parental responsibility and the child spend no time and has no communication with the mother – Where neither party pressed for the application of the principles in Rice and Asplund (1979) FLC 90-725 – Where Court itself is satisfied there has been a material change in circumstances sufficient to warrant consideration of the parties’ applications – Where the child has a loving relationship with both parents – Where both relationships are characterised by challenges – Where child has displayed concerning behaviour in the care of the father and stepmother – Where the mother argues the child’s behaviour is symptomatic of emotional and physical abuse and neglect of the child by the father – Mother alleges father is an unacceptable risk of harm to the child –Where Court finds that the father and stepmother’s response to the child’s dysregulated behaviour have been at time problematic – Where the father and stepmother have shown insight into their actions and have proactively sought to remedy their parenting deficits – Where the Court is satisfied the father is not an unacceptable risk of harm to the child – Where conversely, the mother has demonstrated limited insight and has been resistant to therapeutic intervention aimed at supporting her parenting – Where the mother’s time with the child has fluctuated between unsupervised and supervised time – Where the mother has demonstrated an inability to comply with Court orders she does not agree with – Where the father has made four Applications in a Proceeding seeking recovery of the child – Where the Court is persuaded that the mother remains an unacceptable risk of psychological harm to the child – Where the Court finds that the mother has persistently sought to intrude into the parenting arrangements managed by the father and manipulated the child in emotionally abusive ways – Where Court ordered therapeutic intervention has not ameliorated the risk of harm to the child posed by the mother – Where the Court does not find that a regime of no time with the mother would be in the best interests of the child – Where the Court is satisfied that, in the circumstances, an order of indefinite supervised contact with the mother is in the child’s best interests where the alternative would be a regime of no time – Where the Court is satisfied injunctive restraints are appropriate and proportionate – Order for the child to live with the father – Order for sole parental responsibility to the father – Order for mother to have monthly supervised visits with the child.
Legislation:	Family Law Act 1975 (“Cth”) Pt VII, ss 4, 4AB, 60CA, 60CC, 61DA, 65D(1), 65DAB, 117(2A), 117(4)
Cases cited:	Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 163 ALR 501; [1999] HCA 26 B & B (1993) FLC 92-357 Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Cheadle & Pointer [2020] FamCA 327 Cheadle & Pointer [2020] FamCAFC 277 Dorian & Geary [2023] FedCFamC1A 58 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 Gorman & Huffman [2016] FamCAFC 174 Halloran & Keats [2023] FedCFamC1A 56 H & K [2001] FamCA 687 Isles & Nelissen (2022) 65 FLC 94-092; [2022] FedCFamC1A 97 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 M & M (1988) 166 CLR 69; [1988] HCA 68 M & S (2007) FLC 93-313; [2006] FamCA 1408 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 N and S and the Separate Representative (1996) FLC 92-655 Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 Pointer & Cheadle [2020] FamCA 183 Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128 Re C and J (1996) FLC 92-697 Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768 Rice and Asplund (1979) FLC 90-725 Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 U v U (2002) 211 CLR 238; [2002] HCA 36 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	297
Date of last submission/s:	12 May 2023
Date of hearing:	14 –20 February 2023, 6 April 2023
Place:	Sydney
Counsel for the Applicant:	Ms Coulton
Solicitor for the Applicant:	Sexton Family Law
Counsel for the Respondent:	Mr Fantin
Solicitor for the Respondent:	Inner West Solicitors Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	MCW Lawyers

SYC 7392 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CHEADLE Applicant
AND:	MR POINTER Respondent

order made by:	HARPER J
DATE OF ORDER:	21 July 2023