Qodirova & Arrighetti
[2025] FedCFamC1F 323
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Qodirova & Arrighetti [2025] FedCFamC1F 323
File number(s): BRC 8111 of 2022 Judgment of: JARRETT J Date of judgment: 15 May 2025 Catchwords: FAMILY LAW – PARENTING Legislation: Family Law Act 1975 (Cth) ss 4, 65L Division: Division 1 First Instance Number of paragraphs: 121 Date of last submission/s: 14 May 2025 Date of hearing: 3, 4 March and 12,13, 14 May 2025 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitors for the Applicant: Lucy Wood Family Law Counsel for the Respondent: Mr Selfridge Solicitors for the Respondent: Richardson Murray Counsel for the Independent Children’s Lawyer: Ms Eviston Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 8111 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR QODIROVA
Applicant
AND: MS ARRIGHETTI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.The applicant, Mr Qodirova shall have sole decision making in relation to X born in 2014.
2.Should the applicant intend to exercise sole decision making save for any immediate changes to the care arrangements and schooling for X and any circumstance of emergency, he shall:
(a)inform the respondent of the issue/decision to be made to obtain her views and relay his views;
(b)make a genuine effort to come to a joint decision;
(c)inform the respondent as soon as practicable of the decision made, in the event a joint decision is not made.
3.The child shall live with the applicant and in that regard the respondent shall deliver X to the Level 3, Commonwealth Law Courts, Brisbane at 2.00pm to effect changeover.
4.In the event that the respondent either fails or refuses or neglects to deliver X pursuant to order 3 then:
(a)a recovery order forthwith issue without further order in the usual form pursuant to s 67U of the Family Law Act 1975 addressed to the Marshal of the Court, all officers of the Australian Federal Police and all officers of the State and Territory police services,
(b)the persons to whom the recovery order is addressed are authorised and directed to find, recover and deliver the child X born in 2014 to the applicant, namely MR QODIROVA or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that X may be found,
(c)the respondent, namely MS ARRIGHETTI and her servants or agents, be and are hereby restrained from again removing or causing the removal of X from the care of the applicant, upon any breach of which injunction the persons to whom this recovery order is addressed are authorised and directed to arrest the respondent without a warrant.
5.From the date of these orders for a period of (6) months there be a moratorium on time spent between X and the respondent.
6.Otherwise, X shall spend no time nor communicate with the maternal grandmother, Ms B, and each of the parents are restrained from allowing X to communicate or spend time with the maternal grandmother.
7.During the moratorium:
(a)the applicant and X will participate in family therapy with C Consultancy and to facilitate such family therapy:
(i)the applicant will forthwith do all acts and things necessary to engage C Consultancy to conduct the family therapy;
(ii)the applicant will attend upon C Consultancy at dates and times directed by them;
(iii)the applicant will follow all directions of C Consultancy;
(iv)the applicant will cause X to attend upon C Consultancy;
(v)the applicant will meet the costs of the family therapy.
(b)the respondent, the applicant and X shall each separately attend upon a counsellor, psychologist or psychiatrist of their choice on no less than a fortnightly basis and in respect of such counselling:
(i)each parent shall meet the costs of their own counselling;
(ii)the parents shall share equally in the costs of X's counselling;
(iii)that the applicant shall facilitate X attending upon her counsellor;
(iv)such counselling in relation to X shall be reportable;
(v)this order authorises each individual counsellor to confirm to the requesting party:
A.the date and duration of all completed individual sessions;
B.whether the counsellor recommends that the individual continue with further/ongoing counselling post Moratorium.
(c)that the respondent and the maternal grandmother be restrained from attending at X's school and from communicating with X's school regarding noneducational matters;
(d)the respondent and the maternal grandmother be restrained from contacting or attempting to contact X by any means whether directly or indirectly save and except for as permitted by these orders;
(e)each of the parents are at liberty and shall provide to any counsellor, psychologist or psychiatrist engaged by them copies of:
(i)the Reasons for Judgment and Orders of Justice Jarrett,
(ii)the family report of Mr D,
(iii)the two reports of Mr E
8.Following the moratorium, X shall spend such time with the respondent as is agreed between the parents in writing, but failing agreement the respondent shall spend supervised time with X at F Centre, Suburb G at the respondent’s cost for a period of two (2) hours on a Saturday or a Sunday on a fortnightly basis.
9.The parents shall communicate by way of 'Our Family Wizard' app or other mutually agreeable similar app except in the case of an emergency when communication by mobile telephone shall be permitted.
10.Except and unless the moratorium applies, the respondent shall be at liberty to telephone/video call X on X's birthday, Christmas Day and Easter Sunday for up-to thirty (30) minutes and once the moratorium ends, once a week on a Wednesday between 6pm and 6.30pm.
11.Once the moratorium ends, these orders authorise X's school/s to provide to each parent all emails, all correspondence in relation to any matter relating to X, copies of all school reports, school photographs, and any other documents regarding the academic progress or achievements of X and notification of such important events such as parent teacher events, sports days and concerts.
12.The parents shall:
(a)not consume alcohol to excess whilst X is in their care, noting that this would include any volume that would render them unable to legally drive a motor vehicle or remain in the company of others consuming alcohol to excess;
(b)Not consume, or expose X to anyone who is under the influence of, any illicit substances whilst X is in their care, save for those prescribed by a medical practitioner;
(c)not to encourage or permit X to refer to either parents partners as 'mum or 'dad' or any like term;
(d)respect the privacy of the other parent and not question X in relation to the other parent's private life;
(e)not denigrate the other parent or their family in the hearing or presence of X and shall use their best endeavours to ensure that others do not denigrate the other parent or their family in the hearing or presence of X; and
(f)not denigrate or insult the other Parent or discuss any matters in dispute between them in the presence or hearing of the Child and use their best endeavours to ensure that others do not denigrate, insult or discuss matters in dispute with the other parent in the hearing or presence of X;
(g)not watch media content, where media content includes television, video and electronic games, which is not rated at the Australia standard for X's age;
(h)not discuss, disclose or in any way relay the nature of these court proceedings to X, nor any allegation made by a parent of the other parent;
(i)not publish pictures of the other parent (without their consent in writing) or make adverse comments in relation the other parent online, including via social media;
(j)not physically discipline X or permit others to physically discipline X.
13.The respondent and applicant shall forthwith complete a Parenting Orders Program with Relationships Australia, Centacare or such other organisation that offers a similar program and for this purpose the parties, within seven days of the date of the commencement of these orders, shall contact the Parenting Orders Program Co-ordinator (or their nominee) for intake into the program at the earliest possible date assigned by the program provider.
14.The parents shall comply with any reasonable direction of the Program Co-ordinator and in particular
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program; and
(b)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator (provided that either party may refuse at their election to participate in joint sessions);
(c)for the purposes of the program, a copy of these orders will be provided by the parents to the Program Co-Ordinator;
(d)upon completion of the program each parent provide to the other a copy of the Certificate of Completion.
15.The applicant will be at liberty to travel overseas with the child whilst the child is in his care.
16.The respondent shall deliver to the applicant at the time of delivery of the child to the applicant pursuant to these orders:
(a)the child's passport, to be held by the applicant;
(b)the original of the child's birth certificate (or a notarised copy of same).
17.In so far as is necessary, pursuant to section 11 of the Australian Passports Act 2005 (Cth) the signature of the respondent on any passport application for the child is dispensed with.
18.Order 7 and 8 of the Orders of the Court of 4 March 2025 shall remain in effect until such time as the solicitors for the applicant advise the Chambers of Justice Jarrett that the child is in the applicant’s care at which time the orders of 4 March 2025 shall be discharged.
[Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case concerns the parenting arrangements for X, now aged 10 years. Her parents, the applicant (her father) and the respondent (her mother) were in a relationship that spanned about nine or ten years between mid-2008 and August 2018.
Upon separation in August 2018 X remained living with the respondent in the parties’ former home. From separation until May 2022, she regularly spent time with the applicant, but always in the presence of the respondent. However, since May 2022, all interactions and communications between X and the applicant have ceased, except for one visit supervised by a family consultant on the court’s premises in August 2024.
By these proceedings the applicant seeks orders to address what he contends to be inappropriate parenting arrangements unilaterally imposed by the respondent upon X and consequently, him.
The applicant’s outline of case document sets out three suites of orders, the suitability of each being dependent upon the court’s findings on the issues that were central to the case when the orders were proposed, namely:
(a)whether the applicant presents an unacceptable risk of harm to the X from abuse as that term is defined in s 4 of the Family Law Act 1975 (Cth);
(b)the respondent’s ability to facilitate X’s time and communication with the applicant; and
(c)whether the respondent presents a risk of harm to X’s emotional and psychological wellbeing more generally.
Primarily, the applicant contends that:
(a)he does not pose an unacceptable risk of harm from abuse to X and never has;
(b)the respondent’s capacity to facilitate X’s relationship with him is impaired; and
(c)the respondent’s capacity to facilitate X’s time and communication with him more generally is also impaired
such that:
(d)he and the respondent should have “equal shared parental responsibility” for X;
(e)she must live with him; and
(f)after a moratorium of time between she and the respondent for four months, X spend supervised time with the applicant each fortnight for two hours and otherwise have unsupervised electronic communication with the applicant.
Alternatively he said in his outline of case document that in the event that the court finds that:
(a)he does not present an unacceptable risk of harm to X; and
(b)the respondent is able to facilitate X’s time and communication and her relationship with him more generally
then:
(c)he and the respondent should have “equal shared responsibility” for X;
(d)that she should remain living with the respondent; and
(e)X should spend unsupervised time with him each alternate weekend from 9.00am Saturday to 5.00pm Sunday (in the event that he resides more than 20kms form X’s school) or from after school Thursday to before school Monday in one week and from after school Thursday to before school Friday in the other week;
(f)for one half of X’s school holidays on a week about basis.
Finally, the applicant contended that if the court finds that he does present an unacceptable risk of harm to X, then:
(a)he and the respondent should have “equal shared responsibility” for X;
(b)she should live with the respondent; and
(c)X should spend time with him:
(i)on a six (6) monthly recurring cycle as follows:
(1)on the first Saturday of each calendar month from 10.00am until 2.00pm for five (5) consecutive months;
(2)on the first Saturday of the sixth calendar month in the cycle from 9.00am until 5.00pm, with such time to occur in person in City H supervised by a third party professional supervisor with the parents to meet the costs of such supervision on an equal basis save and except that should a parent cancel and/or not attend a visit, the non-attending parent shall meet the cost of the visit in full (the supervisor);
(ii)on all weekends when in person time is not occurring, telephone/video calls each Sunday between 5.00pm and 6.00pm.
There is also a further alternative proposed by the applicant in the event that the abovementioned time arrangements are not considered by the court to be in X’s best interests, but I will not set out the specifics of that order.
However, by the time submissions rolled around in the case, the landscape had changed considerably. As I explain later in these reasons, the respondent changed her case considerably. The orders finally pressed by the applicant were identified and are included in the court file as Exhibit 16. By those orders, the applicant seeks an order for sole decision-making for X, that she live with him, that she spend no time with the respondent for six months and thereafter X and the respondent spend supervised time together on a fortnightly basis. He seeks a range of other orders to assist X and the parties to deal with the transition of her residence to him.
At the outset of the trial the respondent sought an order, predicated upon a finding that the applicant presented an unacceptable risk of harm from of abuse to X, that she have sole decision-making responsibility for X, that she live with the respondent and that X spend time with the applicant at X’s request, supervised at J Contact Centre on days and at times that could be facilitated by the operators of that centre. She proposed communication between X and the respondent when ‘said communication…suits the child’s schedule’.
She also proposed some alternatives on the basis that the court did not find that the applicant posed an unacceptable risk of harm to X. Her first alternative proposal assumed that that the court would find that the respondent was willing to facilitate any time ordered to occur between X and the applicant. In that event, she sought orders that X live with her and spend time with the applicant each alternative weekend from after school on Friday to before school on Monday. She agreed with a number of the orders sought by the applicant’s primary orders set out in his outline of case document. The second alternative was premised on the basis that the court would find the applicant was not an unacceptable risk of harm to X and that the respondent “has inadvertently undermined child’s relationship with the father by acting protectively”. In that event, she sought the same orders as her first alternative.
She provided no alternative to cater for the circumstance where the court concluded that the applicant did not represent an unacceptable risk of harm to X but that the respondent was unwilling or unable to facilitate X’s relationship with him.
By the close of the trial the respondent had changed her position. I was informed by the respondent’s counsel that she no longer pursued a finding that the applicant represented an unacceptable risk of harm to X by exposing her to abuse at his hand. She proposed orders (which can be found as Exhibit 18) that X reside with her, she has sole decision-making for X and that X spend alternative weekends with the applicant from after school on Friday to before school Monday. She agreed with the school holiday orders proposed by the applicant and a range of other orders set out in her new proposal.
There was no application by the respondent to reopen her case and lead evidence about her change of position and the matters that informed it. I heard submissions from her counsel to the effect that she had been able to listen to the evidence in court and had effectively been able to “read the room” (my words, not counsel’s). This change of heart is problematic for reasons that I will deal with later.
At the commencement of the trial, the Independent Children’s Lawyer posed two alternative suites of orders depending upon the Court’s findings as to whether the applicant posed an unacceptable risk of harm to X. The first suite of orders, premised on the basis that there was such a risk, provided for X to reside with the respondent, for the respondent to have sole decision-making for X and for X spend no time with the applicant, although he would be at liberty to send cards and presents to her on her birthday and on Christmas Day.
The second suite of orders was premised on the basis that there was no risk of harm to X from the applicant and the respondent was not willing to facilitate X’s time with the applicant, or the respondent otherwise presented a risk of emotional harm to X. That alternative, which was said to be the preferred position of the independent children’s lawyer at that stage of the proceeding, provided for the applicant have sole decision-making for X, for her to live with the applicant and for X to spend unsupervised time with the respondent on a gradually increasing basis following a four-month moratorium of time between X and the respondent.
In final submissions, counsel for the independent children’s lawyer proposed different orders. They find their expression in Exhibit 17. The orders are predicated on the basis that the applicant does not represent an unacceptable risk of harm to X but that the respondent represented an unacceptable risk of emotional or psychological harm to X or is otherwise unwilling or unable to foster an appropriate relationship between X and the applicant. The orders provide for X to live with the applicant and, following a moratorium of time of six months, to spend supervised time only with the applicant. A range of other orders dealing with various issues is also proposed.
THE ISSUES
Whilst the parties’ evidence and that of their witnesses tends to suggest a plethora of factual issues between them, in truth the factual disputes that require resolution are really quite few. At the commencement of the trial, the most significant issue centred around the conclusions to be drawn from what are otherwise uncontroversial facts.
The first such factual conclusion that was in issue but is now no longer, was whether, from the uncontroversial facts or the facts as found by the court, the court should conclude that the applicant presented an unacceptable risk of harm from abuse as that term is defined in the Act to X if she is in his unsupervised care. Initially, the respondent contended that such a risk existed and consequently, any time that X was to spend with the applicant must be supervised. Interestingly, she has never contended that X should spend no time with the applicant.
However, at the commencement of the final submissions in the trial, counsel for the respondent informed the court that she no longer pressed for a finding that the applicant represented an unacceptable risk of harm by reason of sexual abuse to X. It was contended, however, that there was a risk of emotional or psychological harm to X if she was to live with the applicant as he was proposing. As I have already indicated, no evidence was led about why the applicant had changed her mind about this issue.
The respondent’s change of position throws up new issues the resolution of which will inform the outcome in these proceedings. In broad terms, the critical issue now seems to me to be whether X will derive more benefit from remaining in the full-time care of the respondent and spending time with the applicant as she now proposes, than she will derive from living in the full-time care of the applicant and spending time with the respondent as he proposes. To answer this question, it is necessary to identify the benefits or advantages, on the one hand and the detriments or disadvantages on the other, for X of remaining in the respondent’s care. Similarly it is necessary to identify the benefits or advantages, on the one hand and the detriments or disadvantages on the other, for X of living in the applicants care as he now proposes. While these inquiries were always required in this case, the context in which they now must be made has changed considerably.
BACKGROUND AND SOME FINDINGS OF FACT
The applicant is presently 58 years of age. The respondent is 50 years of age. X is 10 years of age. Neither of the parties has any other children.
The applicant is presently self-employed as a consultant and has been for some time. He lives on the Region K with his de facto partner, Ms L. They have been in a de facto relationship for about 4 and half years. Ms L has a son who is about 20 years of age. He has lived with the applicant and Ms L, at times, but has, or is soon to obtain his own accommodation. X has never met Ms L or her son.
The applicant’s mother, Ms M, resides nearby. She is 84 years of age. X was familiar with her and according to the applicant, has had a good relationship with her in the past.
The respondent is presently employed in an administrative role in Queensland Public Service. She lives on the City H with X. The respondent has not repartnered. I am not told anything about her accommodation arrangements or the respondent’s working arrangements other than that her working arrangements are flexible. She has the assistance of her mother who also lives on the City H, about two kilometres from the respondent. The respondent has supervised and assisted with X’s care since her birth.
The respondent describes X as an active, intelligent and motivated child. She says that she would consider her to be nice natured, caring, friendly, confident and outgoing.
X attends a local state primary school where she does well. She has a circle of friends at school and engages in competitive sport (although I am not told what type of sport) on the weekend. She is described in the evidence is strong willed and something of a perfectionist. The applicant considers her to be very independent.
In an interview undertaken in January 2023 for the purposes of a child inclusive report by Ms N, a court child expert, both parties told Ms N that X experienced no harmful behavioural issues outside the norm for her age.
The parties commenced a relationship in about 2008 and began living together in 2009. The applicant says that the parties separated in December 2012. Of note is the applicant’s unchallenged evidence that he and the respondent entered into a binding financial agreement when they were together. After their first separation, he paid to her $90,000 in February 2013 pursuant to and in accordance with the terms of that agreement.
Subsequently, the parties reconciled in April or May 2013 and recommenced cohabitation in June 2013. There is a dispute between the parties about who instigated the reconciliation, but none of that is important in the context of the present case.
X was born in 2014 and following her birth, the respondent ceased her employment and became X’s full-time carer.
The applicant says that the respondent “dominated and controlled all caregiving roles from X’s birth”. In his affidavit of evidence-in-chief he sets out eight examples of this domination and control. However, some of the examples are nothing more than the ordinary care that a parent would give a child on a daily basis. For example, he suggests that the respondent’s breastfeeding of X “from birth, until solids were introduced’ is an example of domination and control. He also says that the respondent bathed X every day and that he only assisted from time to time when he was invited. These matters, however, are hardly examples of domination and control but rather examples of a parent who has the primary responsibility for caring for the parties’ child discharging those daily duties.
In the same vein, the respondent is critical of the applicant for not participating in the care and decision making for X. She highlighted matters concerning X’s health and education. But I formed the impression from both her written and oral evidence about these matters that given her role as the primary carer for X and the applicant’s role as the full-time breadwinner, it naturally fell to her to deal with these issues because she was available to undertake them and was perhaps more familiar with these matters on a day-to-day basis. The evidence demonstrated that the respondent would tell the applicant about these matters – how X was going at school and about her health matters, and he was content with that. I do not consider that there is anything remarkable in this evidence or that it demonstrates any lack of interest or involvement by the applicant with X or her care. The parties simply had different roles given the way in which they had organised their household.
I accept the applicant’s evidence that he assisted with caring for X when the respondent would permit him. He shared in the household tasks with the respondent and occasionally he would assist the respondent with bathing X. He would read to her each night that he was not away for work purposes and on the weekends contributed to organising and participating in family outings.
For her part, the respondent says that her relationship with the applicant was a difficult one because he had a sex addiction, suffered from depression, was unable to hold down employment, engaged the services of prostitutes and escorts regularly and used pornography.
She asserts, without any proof however, that the applicant engaged with psychologists and counsellors to assist with the treatment of his sex addiction. Whilst the applicant accepts that the parties attended counselling, he says it was to assist with their relationship problems from time to time. Two examples of the applicant’s attendance upon what was otherwise asserted to be “numerous psychologists and counsellors and professionals in relation to sex addiction” were put to the applicant in cross-examination. In respect of each example (a Ms O in Western Australia and Mr P in Queensland) the applicant’s evidence was that he attended once with the respondent for the purposes of them discussing their relationship issues. No counsellor’s notes or records from any of the “numerous psychologists and counsellors and professionals in relation to sex addiction” were produced or put to the applicant. I prefer the applicant’s evidence about these matters to that of the respondent. I am not satisfied that the applicant suffered from or was diagnosed with a “sex addiction”. I am not satisfied that he ever sought the assistance of a psychologist or counsellor for a “sex addiction”.
The respondent asserts, again without proof, that the applicant was diagnosed with depression and had left some employment in mid-2010 because of that. The applicant says that the assertion is untrue and that whilst he left employment in Western Australia at that time, it was to take up better paid employment that was closer to his ageing parents in City H in Queensland. It was suggested to the applicant that he was consulting a Ms O in Western Australia to assist with his depression but the applicant denied that and said that it was in relation to his relationship with the respondent and that they only consulted Ms O once. I prefer the applicant’s evidence about this. I am not satisfied that he has ever suffered from depression although the parties’ relationship difficulties might have taken a toll on each of the parties from time to time.
The applicant freely conceded, however, that from time to time he used the services of prostitutes and that the respondent knew about that. It was a source of friction between them and added to their relationship difficulties.
The respondent’s claims about these matters, the manner in which they were made and pursued without the slightest proof is characteristic, I think, of the respondent's evidence more generally.
In her written testimony, the respondent attempts to construct a case that the applicant engaged in acts that she says might properly be described as family violence as that term is defined in the Family Law Act or coercive and controlling behaviour. For just what purpose, however, is not clear as she seems also to say that she does not consider such matters any longer relevant given that the parties separation was so long ago. She does not argue that X is a risk of harm from the applicant by reason of being exposed to his violence (howsoever described), but nonetheless the suggestion bubbles away under the surface of her evidence. The difficulty is, however, that she gives no probative evidence of any of these things. For example, in her affidavit of evidence-in-chief she says:
258.[Mr Qodirova] had particular expectations in his mind about the way that I should look and act. He always wanted me to wear sexy lingerie and often told me I was not putting enough effort in.
259.[Mr Qodirova] would regularly become aggressive throughout our relationship. For example, he would speed whilst myself and [X] were in his motor vehicle, tail gate other cars, belittle and denigrate me in the presence of [X], play very loud music and be verbally abusive. [Mr Qodirova] was also physically abusive on one (1) occasion.
Worse, the respondent says in her affidavit of evidence-in-chief:
Domestic Violence
277.Throughout our relationship I was subjected to physical, emotional, psychological, and financial abuse at the hands of [Mr Qodirova]. [Mr Qodirova] manipulated me, isolated me from my friends and family, coerced me into doing things I did not want to do and controlled my finances and access to funds.
278.Given that [Mr Qodirova] and I have been separated since 4 August 2018, I do not intend to particularise the domestic violence that occurred during our relationship.
279.There are no domestic violence orders between [Mr Qodirova] and me.
This evidence is inconsistent with what the respondent told Ms N in January 2023 during her interview for the purposes of the child inclusive report. Moreover, notwithstanding this evidence, the respondent agreed with counsel in cross-examination that the applicant had not ever threatened her. In terms of physical violence, she alleged that he pushed her once, but I have no evidence about the circumstances in which that happened.
As to the question of financial abuse, whilst the respondent did not give evidence to support these assertions in chief, in cross-examination she agreed that:
(a)after the parties’ first separation they had divided up their assets and the respondent received the amount due to her under the financial agreement she had with the applicant;
(b)after final separation, they entered into further negotiations, which saw her receive much more than she could have expected to receive under the financial agreement;
(c)the applicant told the respondent that he was agreeing to the extra because he wanted the respondent and X to have a place to live;
(d)she knew that the applicant wanted her to have enough money to be able to purchase a residence that was unencumbered in which she and X could reside;
(e)she received a “property settlement” in which the parties had split their money;
(f)thereafter the applicant paid the respondent spousal maintenance;
(g)he then sold the parties’ home and gave the respondent half of the proceeds so that she could buy an unencumbered property;
(h)she subsequently purchased a residence for she and X;
(i)the applicant transferred her money every month or every week, and although she was solely reliant on him transferring her money, he was never “nasty” about it, although there was a “couple of times” when the transfers were late.
The particulars of these events and the amounts involved are all set out in the applicant’s evidence-in-chief. None of it was challenged and I accept his evidence about these things.
Far from demonstrating that the applicant was financially controlling or abusive, these matters demonstrate a commitment to his legal responsibilities towards the respondent and X. He continues to pay child support as assessed for X. All these matters demonstrate the opposite of the characteristics alleged to have been demonstrated by the applicant during their relationship. They are entirely inconsistent with the proposition put by the respondent that the applicant expected the respondent to meet her own living expenses as well as X’s during their relationship.
The conclusions sworn to by the applicant in her affidavit of evidence-in-chief about these matters are not probative evidence. These generalised assertions invite generalised responses. The applicant denies the generalised assertions made against him. The respondent’s “evidence” does not satisfy me of that which she asserts and I accept the applicants’ general denials of these matters without hesitation.
The existence of these assertions and the way in which they have been made in the respondent’s evidence-in-chief without any evidence to establish them, in a context where the respondent says that they are not relevant to these proceedings in any event (for that is all the words in paragraph 259 of her affidavit of evidence-in-chief can mean) does her and her case no credit.
Although I am not asked to make a finding that the applicant was violent (in any of its many forms as defined in the Family Law Act) I record that the evidence goes nowhere near establishing that the applicant was physically, emotionally or financially abusive of the respondent. I do not consider that there is any evidence to suggest that he was controlling of the respondent as she so flippantly alleges.
More than that, in support of this aspect of her case the respondent called evidence from her mother Ms B and a longtime friend, Ms R. In her affidavit of evidence-in-chief the respondent’s mother asserts in very generalised terms that she observed the applicant “to be controlling of [the respondent], and that he sought to isolate [the respondent] from me”. However, she gives no particulars. On this point, the applicant’s evidence is that he was not particularly fond of Ms B and he experienced her as interfering in his relationship with the respondent to some extent. His evidence is that he did ask for Ms B to reduce her presence in the parties home when he was there so that he was able to spend time with the respondent and X as a family without her interference. This is something, no doubt, Ms B resented and now characterises as the applicant seeking to isolate the respondent from her. I do not accept that as an appropriate characterisation.
Later in her affidavit Ms B says that she sought advice from her own general practitioner about the “emotional and financial abuse of [the respondent]”. Again, there are no particulars.
Although Ms R did not mention such things in her affidavit of evidence-in-chief , in cross-examination she did not miss the opportunity to ensure that the court well understood her views of the applicant and how controlling and abusive he was of the respondent. Again, there were no particulars, just generalised allegations, which I reject.
The role of X’s grandmother in all of this is concerning. By the end of her evidence, even the respondent was so concerned about what she had said that counsel for the respondent asked her about her attitude towards an injunction that prevented her from coming into contact with X, even for a short while. As it turns out, the concerns continue because the respondent seeks such an injunction as part of the orders that she now contends are in X’s best interests.
Ms B was a difficult witness. She needed to be reminded continuously to answer the question asked of her rather than to give evidence on some tangential matter. Her credit was damaged when it was demonstrated that she had made notifications to the Department of Child Safety but then disavowed many of the things recorded by the Department as having been said to them by her. For example, the Department notes record that she told the Department that her daughter had a personality disorder and that the applicant was likely to kill the respondent and X if the Department did not do anything about it. At one point she told the Department that in her view neither the applicant nor the respondent was able to take proper care of X. When these things were put to her however, she denied having said them and then said, at the least she could not remember saying those things and she would not have. I found her evidence on these issues unhelpful and both the manner in which she gave her evidence and the content of it detracted considerably from its probity.
The development of the allegations of sexual abuse are important. The genesis seems to be observations made by Ms B in May 2017 when she saw X playing with teddy bears at her home. X was about 2 years of age at the time. She told her grandmother that there was a daddy teddy, a mummy teddy and a baby teddy. Ms B says that she observed X put baby teddy on daddy teddy’s “head and then on daddy teddy’s body and bounced baby teddy up and down”. She says that she considered it to be unusual and not how X would typically play with her teddys at the time. When pressed about this allegation in cross-examination, Ms B said that she thought that what she observed was suggestive of the applicant penetrating X’s vagina with his tongue and masturbating. It may be that this evidence appeared for the first time during cross-examination because Ms B was pressed on the issue and felt that she must provide some answer, but I was taken to no other evidence which suggested that she had at any time characterised her observations in that way.
Nonetheless, Ms B says that in June 2017 she observed changes in X’s character including that she had started wetting the bed, was having nightmares, often had a sore vagina and bottom, was sometimes wearing “protective clothing” which she refused to take off even if hot, would scream when she took her to a public toilet and would “refuse to wee” and was having screaming fits and running away. There are no particulars of any of this behaviour in Ms B’s evidence.
So concerned was Ms B about her observations that she says that she discussed X’s behaviour with one of her “[…] students” who she says had some experience in child behaviour. She does not elaborate upon the nature or extent of that person’s experience. Ms B says that she was told by this person that it was possible that there was some form of “sexual abuse” as “children often play act with teddys if they do not know how to express themselves verbally”. Ms B said that this, coupled with the fact that during June and July 2017 X had pain in her bottom whenever she tried to “do poos” and often complained of tummy aches caused her to think that X was being “interfered with” by the applicant.
Ms B discussed her observations with her general practitioner, Dr S, on 15 September 2017. She says that she told Dr S that she suspected that X was being interfered with because she often had a sore vagina. She explained the “teddy bear incident” to the doctor. She does not, however, give evidence-in-chief about the doctor’s response. Dr S’s notes of this consultation were put to Ms B. They paint a different picture than that painted by her. Counsel put to Ms B that she described the teddy bear incident as follows, “was playing with toys and the granddaughter said the big teddy was daddy and the little one was baby and she bounced the baby bear on the lap of the big bear and gave [Ms B] a sideways glance, nothing was said until later the granddaughter said she missed daddy”. Ms B generally accepted that description.
Counsel also asked Ms B about her relationship with the applicant and whether she liked him. She said that she did not dislike him. Counsel put to her that she had told Dr S that she “didn’t like her son-in-law and said that he “is strange”. Ms B did not think that she would have said such a thing. But it is recorded in the doctor’s notes. Counsel suggested that the doctor thought that the “teddy bear incident” could be as innocent as her dad bouncing her on his knee is a game. Ms B agreed that she had been told this.
Notwithstanding this sage advice from Dr S, Ms B continued to harbour suspicions. She seems to attach significance to an interaction that occurred in December 2017 between the applicant and some others at a social function. The applicant was talking about X having nightmares and Ms B says he was laughing and said words to the effect of “what kid has nightmares at age 3”. Ms B says that she was concerned that X was having nightmares and that the applicant thought it was funny. The nature of her concern arising from this, however, is not clear. The relevance of this incident (presumptive as it is, because it is included in her evidence-in-chief ) was never explained.
Despite nothing having occurred according to her own evidence between when she last saw Dr S and July 2018, Ms B says that she once again went to see Dr S and expressed her “concerns of emotional and financial abuse of [Ms Arrighetti], and possible sexual abuse of [X] and changes in the personality of [X] who is now being very clingy to her mum and me”. Again, she does not give evidence of the advice that she received from Dr S.
Ms B says that on 20 July 2018, she organised for her daughter to go to hospital because she was unwell. The applicant was at work in Brisbane and Ms B took care of X at the parties’ home until the applicant could return from Brisbane. She decided to bath X and says that when doing so she “went to wash her private parts” and X started screaming saying words to the effect of: "don't hurt me there like daddy does". She says that X would not allow her to bathe her further as she was “so distressed”.
Ms B says that the applicant arrived shortly afterwards and X “ran to the couch and curled up under the cushions when [Mr Qodirova] entered”. She says that she observed X to look “fearful” when [Mr Qodirova] came into the house. She does not describe her observations that led her to that conclusion. She says that when she told the applicant that she had bathed X he became angry. She says that she observed the applicant “stomping around the kitchen” and he then “ordered me out of the house”. She says that the applicant refused her assistance with caring for X whilst the respondent was in hospital.
The applicant’s evidence is that he had been working in Brisbane on Wednesday and Thursday, 18 and 19 July 2018. When he was travelling back to Brisbane on Friday afternoon 20 July 2018 he received a telephone call from Ms B informing him that the respondent’s illness, from which she had been suffering for a few days, had worsened and she was going to call an ambulance. The applicant says that he told her he would be there as soon as he could.
He says that he arrived home about 7:30pm and Ms B was looking after X at the parties’ home. He did not go to the hospital because given the hour, visiting hours would have been over and he would not have been able to see the respondent. For his part, the applicant denies Ms B’s allegations. He says that he was not as she describes and was not stomping around the kitchen demanding that she leave the house. He said that he was not angry. He did not observe X to be scared of him.
The applicant was also unwell on Friday, 20 July 2018. He swears that because his illness was getting worse he went to a local medical centre (with X) and was given some antibiotics for his illness and an infection. He returned home and put X to bed.
The next day, the applicant says that while he was cleaning the house, Ms B appeared unannounced after letting herself into the parties’ home. He says that she proceeded to criticise him and he asked her to leave. Later that afternoon the applicant and X visited the respondent in hospital. He says that at that time the respondent suggested that he should give X a shower (as opposed to above) “if that makes it easier”. Both parties were cross-examined about this. I prefer the evidence of the applicant and I accept that this conversation took place as he recounts it.
The applicant describes in his affidavit of evidence-in-chief how later that night he and X showered, X first and he second. He describes how he placed X into the shower and she was washed. The applicant was closely cross-examined about all of this but I am satisfied that the account of this particular episode as set out in his affidavit of evidence-in-chief is entirely accurate.
I do not accept that X said the words to Ms B that she reports were said when she was bathing X on 20 July 2018. I am not persuaded on the balance of probabilities that X said those words. I reject Ms B’s evidence about her observations concerning X that evening and her claims about the applicant’s behaviour when he returned home. I prefer the evidence of the applicant about these matters.
In the days following, whilst the respondent was still in hospital, the applicant would take X to the hospital where Ms B would assist the respondent to care for her. This was done, I am satisfied at the respondent’s suggestion because she was aware that the applicant too was ill.
In an affidavit sworn by Ms B and filed on 8 August 2022, Ms B gives evidence that she was taking care of X and she took her to a park nearby the hospital. She deposes to being “shocked by her behaviour” she describes X being sore between her legs, so sore that she “could hardly walk”. She describes how she kept falling over and stumbling “like she had been drugged” and that X refused to go on the slide. She says that she looked “very pale and very drawn”. However, as the applicant points out, in her second affidavit filed on 20 January 2025 and relied upon by the respondent in this hearing, she deposes to matters which are significantly different. I do not accept Ms B’s evidence about these matters or her observations.
Further, I do not accept Ms B’s evidence concerning her observations on each of her daily visits to the parties home whilst the respondent was in hospital.
The respondent was discharged from hospital on in late July 2018. On Sunday evening 29 July 2018 the respondent says that she was bathing X and she observed X to touch her vaginal area in an “unusual circular manner”. When she asked X what she was doing X said “Daddy taught me how to play with that when we were in the shower, he said to keep it a secret”. Further, X said words to the effect “Daddy’s vagina was sticking out in the shower, I touched it”. At this time, X was aged 3. The respondent says that she had observed X to sometimes call male genitalia “vagina” as opposed to “penis”.
The respondent says that she was “really shaken up” by what X had told her and she required some guidance on how to deal with “the situation” she spoke to X’s kindergarten teacher, Ms T.
This evidence, however, is different to the version of events that the respondent gave to the family report writer, Mr D a consultant social worker who was engaged to prepare a report pursuant to s 62G of the Act. Mr D records:
185.Asked what she was doing, 'she made some comment ' and then said 'daddy taught me to do it in the shower ' and also 'daddy said it’s a secret '. She recalls at that point in time [Mr Qodirova] came upstairs to the bathroom, which was very unusual as 'he never ever, ever came upstairs when I was bathing her and he was like what is going on and I am like nothing '. She said it was 'weird '.
186.The following day, she visited her kindy. She said I think I was crying' and she told the worker there what was going on. With [Mr Qodirova], she said 'I couldn't look at him or talk to him or anything and I spent the week processing'.
187.In the following week, she saw the doctor and spoke to the kindy staff. In the meantime, [X] had added to her comment telling her how she had been 'showering with him and his penis and sitting on his face and she made several comments at different time '.
The applicant also points out in his evidence-in-chief that the respondent’s recounting of this episode is also different to that deposed by the respondent in her first affidavit filed on 9 August 2022.
The parties had a conversation on 3 August 2018. The respondent says that she “confronted” the applicant about what X had told her. She says that “[Mr Qodirova] denied the allegation and responded with words to the effect of “I can’t believe you are saying this” she says that the applicant further stated “I was showering with her and showed her how to use the soap as it is easier than bathing separately”.
This conversation led to the applicant ending his relationship with the respondent on 5 August 2018. He moved out of the family home on 4 August 2018 and has not returned.
As I have recorded above, the respondent no longer presses her case that the applicant represents an unacceptable risk of harm by reason of sexual abuse to X. The orders that she now seeks are predicated on that basis. Whilst it is not necessary for me to make a finding about that, given the way the case has been conducted, it is as well that I record that having regard to the evidence, including the cross examination of the respondent, the evidence of Ms B and her cross-examination and the evidence of Ms T, the documentary evidence demonstrating various inconsistencies in statements made by the respondent from time to time including those highlighted by the applicant in his affidavit of evidence in chief, I am not satisfied that the applicant has ever presented as an unacceptable risk of sexual abuse to X. I am not satisfied on the evidence that he has ever behaved in a sexually inappropriate way towards her.
The evidence shows that both the respondent and Ms B have a steadfast and unshakeable belief that the applicant has indeed “sexually interfered” with X. Without hesitation, both gave evidence that in their view the applicant should be in jail. Indeed, both gave evidence that if I made orders consistent with those sought by the applicant, they would go to the police and Ms B would insist on investigation being opened. The difficulty with these threats though is that they are meaningless. The complaints raised in this case have been raised with the Queensland Police Service. That there has been no investigation is consistent with my view that the evidence does not demonstrate any untoward behaviour. More than that, it was Ms B’s evidence that X has no recollection whatsoever of any untoward behaviour by her father and does not speak of any. Ms B says that she is puzzled about why X is scared of the applicant and she has on occasions hoped that X would tell her. She described herself as being a person with whom X felt safe (perhaps the only person).
I accept that applicant’s evidence that he initiated post separation counselling for he and the respondent soon after the parties separated. For that purpose, the parties engaged with Ms V, psychologist.
As a result, the parties were able to agree that X would spend time with the applicant every two (2) weeks. The parties were able to make regular plans for X to spend time with the applicant. Initially, the time took place “out and about” for at least 4-5 hours including lunch.
The parties were amicable. Indeed, I accept that the respondent was interested in reconciling with the applicant. According to both parties, there was no overt conflict between them.
The applicant moved to Region K in August 2019 to assist in caring for his elderly parents. This added a tyranny of distance to the arrangements between the parties and more “forward planning” between the parties was called for in respect of X’s time with the applicant and it was forthcoming.
The applicant explains in his evidence, and I accept, that the pattern into which the parties settled of X spending time with him every 3 -4 weeks in the company of the respondent suited him because of his work commitments. It was working smoothly. The respondent agreed in cross-examination that it was working smoothly.
The parties’ relationship was such that the applicant would spend time with X on occasions at the respondent's home. In addition, the parties and X would go on outings to local attractions and, at the instigation of the respondent went camping on one occasion. They celebrated special occasions together.
However, from about December 2021, the applicant says that it slowly became harder to make arrangements for X to spend time with him. The applicant says that he concluded that the respondent was slowly phasing him out of X's life and time with X was becoming increasingly irregular. The respondent says that over time the applicant lost interest in spending time with X, but he denies that. I prefer his evidence about this.
In May 2022, the applicant began taking steps to put in place a more formal arrangement in respect of X’s time with him. He says that this was the point at which the respondent’s attitude towards him and X’s time with him underwent its greatest change such that he last time X spent time with him by mutual agreement with the respondent was 29 May 2022.
Having attempted to remedy the situation at mediation in June 2022 and failed, the applicant commenced these proceedings in July 2022.
In cross-examination the respondent agreed that the time X spent with the applicant from separation up to 29 May 2022 went well. The parties were amicable and were able to make arrangements between themselves for X’s time with the applicant. Perhaps it is the case that the respondent perceived the reduction in time between X and the applicant as a waning of interest in spending time with X, but if she truly thought that, the commencement of proceedings by the applicant should have swiftly disabused her of that. It did not. Remarkably, around that time, the respondent refused to make any informal arrangements with the applicant for X to spend time with him on the basis that it was now in the hands of the court and she would only do what the court said.
Since proceedings have been commenced, there have been a series of orders, made by consent, whereby X was to spend time with the applicant at a supervised contact centre, however, the time has never occurred. It has not occurred ostensibly because the respondent has not been able to have X attend and participate in the supervised contact.
The respondent relied upon evidence from Ms V, a psychologist the parties consulted soon after separation. She relied upon Ms V’s evidence to establish that she has actively sought out advice and assistance to enable her to help X attend time with the applicant. The respondent’s case is that she has actively implemented Ms V’s suggestions but it has all been to no avail.
In mid-2024, an order was made by another judge of this court requiring the respondent to have X attend upon a family consultant for the purposes of three supervised contact visits between X and her father. The order was made pursuant to s 65L of the Act. Mr E was the family consultant who conducted the observations on each occasion. Exhibit 2 and Exhibit 3 in these proceedings are reports prepared by Mr E on 1 October 2024 and 26 February 2025. Time occurred between X and her father on the first occasion but the second and third attempts to have X spend time with the applicant failed.
In evidence is an audio recording (Exhibit 11) of the interaction between X the respondent and Ms B on the evening before the second of the scheduled supervised contact visits which was to occur pursuant to the s 65L order. The recording shows that X was distressed at the prospect of another visit with her father supervised by Mr E. It records the words said by both the respondent and Ms B to “encourage” X. When asked to comment on the respondent’s words and strategy is recorded in Exhibit 11, Ms V said that the respondent was not, by and large, implementing the strategies and techniques that she had discussed with her. Indeed, rather than encouraging X to participate because it was something that she and the applicant had agreed was best for X the respondent suggested to X strategies to avoid participation. Ms B’s “assistance” was even less helpful.
CONSIDERATION
Whilst the respondent has now abandoned her case that the applicant represents an unacceptable risk of harm to X by reason of abuse, she contends that he presents a risk of harm to her by reason of the effects upon X of moving her to the applicant’s care as described by Mr D in his evidence-in-chief. I will return to this evidence shortly.
The applicant and the independent children’s lawyer contend that the respondent presents an unacceptable risk of harm to X by exposing her to emotional or psychological abuse. I accept that is so.
Despite her protestations to the contrary, I am not persuaded that the respondent desires that X should have any relationship with the applicant. Whilst it is the case that X and the applicant enjoyed a good relationship from the time of separation until May 2022, their time together was always short, never overnight and always in the presence of the respondent. When the applicant grew tired of the respondent controlling X’s relationship with him and the circumstances in which it was allowed to occur, and in the absence of any agreement from the respondent, he commenced these proceedings. The object of the proceedings was not to secure an order for X to live with him, but rather to secure some longer, overnight time with X, free from the controlling oversight of the respondent. The respondent’s reaction was to shut down X’s time with the applicant and according to Ms B, within a few months, X commenced to say that she was scared of the applicant and was refusing to spend anytime with him. Neither she, nor the respondent could offer any explanation for X’s change of heart.
The respondent’s case is that her insistence upon X’s time with the applicant being supervised has always been to protect X from the prospect that she might be sexually abused by the applicant. As I have recorded above, she believes that the applicant has sexually interfered with X and that he should be in jail. It is somewhat remarkable then that she has never reported her concerns to the police. Moreover, in cross-examination she said this:
MR BUNNING: All right. Well, somebody who should be in jail for sexually abusing their daughter shouldn’t be spending time with their daughter, should they?---I think they should.
You think they should?---Yes.
Somebody who – somebody who has done the most heinous thing to a child should be spending weekly time or fortnightly time with their dad? Is that right?---I think supervised visits. I – I don’t know. I don’t think a child should miss out on time.
This is curious evidence. On the one hand, the respondent says that she holds an immutable belief that the applicant has sexually interfered with X but yet considers that X should nonetheless continue to be exposed to him, albeit in a supervised way so that she does not “miss out on time”.
Whilst I cannot understand from the evidence the respondent’s motivations for curtailing X’s time with the applicant in the way that she did from May 2022, I am of the firm view that there was no justification for it. What has occurred since then has served to cause X damage in that she has formed the view that the applicant is not a person with whom she should spend any time. Mr D gave evidence that X has already experienced emotional damage by what has occurred and should she remain living in the care of the respondent she will be further damaged. Mr D explained that in his view if X continues to reside with the respondent, she is highly unlikely to have the opportunity to pursue a relationship with the applicant. I accept this evidence unreservedly and it is consistent with my own conclusions having regard to the respondent’s evidence.
If X is unable to have an appropriate relationship with the applicant it will affect her in the long-term. Mr D explained that it will affect her sense of identity and her development of self. It will impact upon her ability to form her own relationships, particularly in her teenage years. I am satisfied that she will come to learn, if she does not know already, that the applicant is alleged to have sexually interfered with her. Having regard to the attitude of the respondent and Ms B, that will be part of the family’s history. That is to say, X will live in a household where it is believed without question that the applicant has sexually interfered with her. Mr D gave evidence about the long-term effects upon X if that were to be the case. None of Mr D’s evidence about these matters was challenged.
So, in terms of the proposals of the parties, the respondent’s proposal would bring with it a number of advantages. The first is that X would continue in the care of the person from whom she has historically received her care. The evidence is that aside from her relationship with her father, X is doing well. She does well at school and she has friends. She participates in extracurricular activities. These are all significant advantages not to be interfered with without good reason. I have already identified the disadvantage to X if she remains living in the respondent’s care. It will be, I find, the complete loss of any opportunity to have a relationship with the respondent.
I acknowledge that the respondent’s proposed orders provide for there to be unsupervised alternative weekend time between X and the applicant as well as school holiday time. However, having regard to the respondent’s evidence and the history which demonstrates that notwithstanding the existence of protective orders that would facilitate time between X and the applicant, the respondent has never been able to make time between X and the applicant happen (leaving aside the one occasion with Mr E). When taxed with these questions in cross-examination, the respondent was bereft of ideas as to how she might get X to spend time with the applicant should the court make that order. And yet, she now asks for that precise order.
I do not consider that the order proposed by the respondent would see any time occur between X and her father. Moreover, if it did, I am concerned that it would provide nothing more than fertile ground for further allegations to be made about misconduct by the applicant towards X. That would lead to further investigation, imposition upon X and further litigation, none of which would be in her best interests.
The applicant’s proposal would plunge X deeper into crisis. Mr D, after listening to the audio recording taken in September 2024, described the respondent’s household as “in crisis”. That is, in my respectful opinion, an apt description. To order X to live in the applicant’s care will only heighten that crisis for her. She will be in an unfamiliar environment with a person with whom she has not spent time for some years, living in a household with another person that she has never met, going to a different school, leaving her friends behind and no doubt, feeling completely unheard. These things will be devastating for her. Her reaction to these things is unknown but one could predict, comfortably I think, that she will react poorly to them.
Mr D opined that if there was to be a change in residence X would need significant support and continuous monitoring. He suggested support from a counsellor and monitoring by the applicant and others around her. The applicant has plans in place for that to occur. Just how much time will elapse before the crisis begins to abate and X adjusts to her new environment is impossible to say. In that respect, Mr D opined that a moratorium of time (he did not suggest the length) would be appropriate to allow X to focus on dealing with her new environment and settling down.
But the long-term outcome for X from such a situation would be that she would have the opportunity for a relationship with both parents. This would be a significant advantage to her for the reasons explained by Mr D. Moreover, she would not live in a household where there was an entrenched belief that X was the victim of sexual abuse. The “embedded damage” that would occur to X if she lived in such a household would be avoided. This too, is a significant advantage.
Both the applicant and the independent children’s lawyer contend that the advantages to X living in the applicant’s household, as opposed to the respondent’s household, outweigh the disadvantages of that course. They argue that the disadvantages of remaining in the respondent’s household outweigh the advantages. I agree.
I do not consider that the respondent’s proposals will allow X to have the benefit of a relationship with both the applicant and the respondent. I am satisfied that by making the orders that the respondent proposes I am simply setting up these parties and X to fail yet again.
X has very fixed views about whether she should spend time with her father. She is adamant that she does not wish to spend time with him. Whilst she has said from time to time that she is scared of him, she has never provided any reason or justification for her fear. I take X’s wishes into account. Those wishes and the strength of them inform some of the comments that I have made above about how difficult the transition from the respondent’s household to the applicant’s household might be.
In my view, it follows from the above that the applicant has the capacity to meet X’s developmental, psychological, emotional needs. The way in which he approached X’s time with him when the parties first separated demonstrates a cooperative and collaborative approach with the respondent. Although it seems there was to be some criticism of him because of his approach, I do not understand the criticism. He went to great lengths to avoid conflict with the respondent but at the same time ensure that X had the opportunity of a relationship with him, one which on all of the evidence she enjoyed. Mr E’s observations of the applicant on the occasion when he spend time with X confirm that the applicant does have the emotional intelligence, I think, to be sensitive to X’s needs.
He has been astute to ensure that X and the respondent have been financially supported appropriately.
It was suggested that the applicant’s plans should X come into his care were not well formulated. I do not accept the submission. The applicant’s evidence-in-chief demonstrates that he has thought through the issues and although he has not implemented any of the plans, that is understandable given the uncertainty about the outcome of these proceedings. The applicant impressed me as a thoughtful and organised person. I have no doubt that X will benefit from that.
The respondent’s behaviour, on the other hand demonstrates that her ability to meet X’s emotional and psychological needs is impaired. Her reaction to the applicant commencing proceedings speaks volumes about this. The very fact that she has not been able to have X spend any time at all (save that with Mr E) demonstrates, I think her inability to meet X’s emotional and psychological needs.
CONCLUSION
For the reasons that I have set out above, I consider that the orders proposed by the applicant best meet the welfare of X. Whilst those orders will visit upon X, in the short term, a great many number of challenges, in the long-term they are far more likely to deliver to her the opportunity of a relationship with each of her parents than the orders proposed by the respondent. Those orders, in my view, are as I described in submissions, “a recipe for disaster”.
The orders proposed by the applicant provide for a moratorium on X’s time with the respondent for six months. I consider that moratorium appropriate. Mr D was asked about the time and when six months was put to him he did not suggest that it was inappropriate. Given the level of distress that I anticipate X will experience as a result of the orders I propose to make, I consider that a longer rather than shorter moratorium to allow her to settle is appropriate.
During the moratorium period, the applicant proposes that he and X will participate in family therapy with C consultancy. That is entirely appropriate.
He also seeks an order that he, the respondent and X each separately attend upon a counsellor, psychologist or psychiatrist of their choice on no less than a fortnightly basis. That too, in my view is appropriate. It will be important for both parents to have support around the implementation of the orders I propose to make. It is also important, I think, for the respondent to have the assistance of a counsellor to understand these reasons for judgment to ensure that when she spends time with X it is productive and advantageous for X.
The applicant proposes that following the moratorium period X spend supervised time with the respondent at a contact centre in Region K. The order is unlimited in duration. Ordinarily the court is not favourably disposed to making long term supervised contact orders but, I think in this case it is warranted because of the respondent’s sworn belief that she considers X to have been sexually interfered with at the hands of the applicant. Until she is able to demonstrate that she has abandoned that belief or is able to contain it in some way so as not to present a risk of emotional or psychological harm to X, the time should remain supervised. Whether she addresses those matters is entirely in the respondent’s hands.
The applicant seeks an enduring injunction restraining the parties from allowing X to communicate or spend any time with Ms B. That will be a significant impost on X because according to the evidence she has a good relationship with Ms B, even though it may not be one conducive to X’s best interests. However, I consider that the injunction is appropriate in so far as it restrains both of the parents from permitting X to communicate or spend time with Ms B.
The applicant also seeks some consequential injunctions preventing the respondent and Ms B from attending X’s school or communicating with the school or from attempting to contact X during the moratorium period. Those injunctions are appropriate. Insofar as the school is concerned, the evidence is clear that Ms B, in particular but also the respondent have made plain their views about the applicant to X’s school. The school at which X will attend in the respondent’s care should not be infected with such misinformation.
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 15 May 2025
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