Shalhoub & Morcos - [2023] FedCFamC1F 419

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shalhoub & Morcos [2023] FedCFamC1F 419

File number(s): PAC 591 of 2019

Judgment of: HANNAM J

Date of judgment: 24 May 2023

Catchwords: FAMILY LAW – FINAL PARENTING – Where the Department of Communities & Justice have intervened in the proceedings – Where the mother contends that the father has perpetrated family violence – Where the mother contends that the father has sexually and physically abused the child – Where the child was removed from the mother’s care by the Department of Communities & Justice – Where each of the other parties contend that the mother poses an unacceptable risk of harm to the child on the basis of physical and psychological abuse – Where there are serious concerns for the mother’s mental health – Orders made as sought by the Secretary – Where the child is to live with the father – Where the father is to have sole parental responsibility for the child except in relation to his time and communication with the mother – Where the Minister for Families and Communities is to have sole parental responsibility in relation to the child’s time and communication with the mother – Where after a certain period the father is to share parental responsibility with the Minister in relation to the child’s time and communication with the mother before – Where after a further period the father is to have sole parental responsibility in relation to the child’s time and communication with the mother.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65D.

Cases cited:
Amador & Amador [2021] FamCAFC 66

G & C [2006] FamCA 994

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

M & M (1988) 166 CLR 69

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Oberlin & Infeld [2021] FamCAFC 66

Division: Division 1 First Instance

Number of paragraphs: 509

Date of last submissions: 19 December 2022

Date of hearing: 14 – 18 March 2022; 27 – 28 June 2022; 8-9 September 2022; 23 September 2022; 19 December 2022

Place: Parramatta

Counsel for the Applicant: Mr Mando and subsequently Litigant in Person (from 28 June 2022)

Solicitor for the Applicant: Safi Legal (until 28 June 2022)

Counsel for the Respondent: Mr Sperling

Solicitor for the Respondent: Metta Legal

Counsel for the Intervener: Mr Havenstein

Solicitor for the Intervener: Crown Solicitors Office

Counsel for the Independent Children's Lawyer: Mr Blank

Solicitor for the Independent Children's Lawyer: Legal Aid Nsw Campbelltown Family Law
ORDERS

PAC 591 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SHALHOUB

Applicant

AND:
MR MORCOS

Respondent

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Intervener

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

24 may 2023

THE COURT ORDERS THAT:
1.All previous orders relating to the child X born … 2018 (“the child”) be discharged.

Parental Responsibility
2.Subject to Orders 3 and 4 below, Mr Morcos (“the father”) shall have sole parental responsibility for the child until the child attains the age of 18 years, except in respect of parental responsibility relating to communication and time between the child and the mother and maternal family members. For the avoidance of doubt, sole parental responsibility includes but is not limited to the following:
(a)Providing all authorities necessary to cause and/or permit the child to travel to and from the Commonwealth of Australia at any time;
(b)Providing all authorities necessary to cause and/or permit the renewal of any passport for the child without the signature of Ms Shalhoub (“the mother”).

3.Until the child attains the age of 12 years the Minister for Families and Communities (“the Minister”) shall have sole parental responsibility for arrangements for communication and time between the child and the mother and maternal family members.
4.At the expiry of Order 3 and until … 2034 (the child’s 16^th birthday), the Minister and the father shall have equal shared parental responsibility for arrangements for communication and time between the child and the mother and maternal family members.
5.At the expiry of Order 4 and until the child attains the age of 18 years the father shall have sole parental responsibility for arrangements for communication and time between the child and the mother and maternal family members.

Live with and spend time with
6.The child shall live with the father.
7.Until the child turns 12 years of age the child shall spend time with and communicate with the mother and members of the maternal family as directed by the Secretary, Department of Communities and Justice (“the Secretary”).
8.Between the ages of 12 years and 16 years, the child shall spend time and communicate with the mother and members of the maternal family, as agreed between the Secretary and the father.
9.Between the ages of 16 years and 18 years, the child shall spend time and communicate with the mother and members of the maternal family, as determined by the father and taking into account the child’s age, development and expressed wishes as the father considers appropriate.
10.The mother shall not spend time with or communicate with the child, or attempt to do so, except as permitted by these orders.
11.The father shall support, encourage and facilitate the child spending time with or communicating with the mother, including arranging for the child to be delivered to the Secretary or his delegate for the purpose of him spending time with the mother at venues, times and on days specified by the Secretary or his delegate.

Communication
12.Within 14 days of any period of time spent between the mother and child pursuant to Order 7 above, the Secretary or his delegate is to provide to the mother via email a copy of any photographs or videos taken during the child’s time with her.
13.From the time the child turns 16 years, where it is necessary for the father to communicate with the mother on any issue with regard to the arrangements for the child’s time with the mother, the parents are to communicate by email and all such communication is to be brief, polite and solely for the purpose of sharing information about the child.

Restraints
14.Pursuant to s 68B of the Family Law Act 1975 (Cth)(“the Act”), the mother and father are restrained by injunction from the following:
(a)Exposing the child to any form of family violence, and shall do all things possible to remove the child from any situation in which family violence is occurring;
(b)Using denigrating language about the other parent in the presence or hearing of the child, and shall use their best endeavours to ensure that no third party uses denigrating language about the other parent in the presence or hearing of the child;
(c)Physically disciplining or striking the child or permitting any other person to do so;
(d)Harassing or intimidating the other parent or any person in their family;
(e)Discussing any allegation made or evidence given in Family Law proceedings, or Apprehended Violence applications or criminal proceedings involving the parties with or in the presence of the child, or permitting another person to do so, except for Police Officers, Caseworkers or counsellors for the purpose of investigations or therapy.

15.Pursuant to s 68B of the Act, the mother is restrained from the following:
(a)Contacting any childcare centre, school, doctor or other treating professional providing a service to the child, or from obtaining any information or documents from that childcare centre, school, doctor or other treating professional in relation to the child;
(b)Communicating or attempting to communicate with the child except for providing the child with letters, photographs and gifts on any occasion during which the child spends time with the mother;
(c)Taking any photographs of the child’s body or undressing the child during any time the child is spending with her, except with the written consent of the delegate of the Minister;
(d)Filming the child during any time that the child is spending with her, except with the written consent of the delegate of the Minister;
(e)Threatening to take the child into her care or removing the child from the father or attempting to do so;
(f)Removing the child from any location where contact has been arranged, or attempting to do so;
(g)Attending at the child’s address or any educational facility which the child attends, without the prior written consent of the father.

16.For the purposes of these orders, Order 14 and Order 15 are orders for the personal protection of the child to which a power of arrest without warrant attaches pursuant to the provisions of s 68C of the Act.

Information exchange
17.One month prior to the child turning 16 and thereafter until the child attains 18 years of age, each parent shall advise and keep the other informed of their current email address and mobile telephone number, and shall advise each other of any change to those details within 24 hour of such change.
18.In January and July each year until the child attains 16 years of age, the father shall provide the Secretary, a copy of the child’s most recent school report as well as a general summary of the child’s health. The Secretary is to then provide the mother, by email, a copy of the child’s most recent school report (which the Secretary must first redact to ensure that there is no information provided to the mother which identifies the name or location of the child’s school) as well as a general summary of the child’s health.
19.Until the child is 16, the father shall advise the Secretary as soon as practicable of any serious medical emergency or serious medical condition with which the child is diagnosed. The Secretary is to then inform the mother of the same as soon as practicable.
20.Until the child is 16, each parent shall keep the Secretary informed of their current residential address, email address and mobile telephone number, and advise the Secretary of any change to those details within 24 hours of such change.
21.In the event that an Initiating Application is filed in relation to the child, a sealed copy is to be served on the Intervener.
22.Leave is granted to the Secretary to provide a copy of the Reasons for judgment dated 24 May 2023 to NSW police.
23.Leave is granted to the Secretary to provide a copy of the Reasons for judgment dated 24 May 2023, and a copy of each of Dr B’s reports to any treating psychologist that may be providing therapy or counselling to the child.
24.Leave is granted to the Secretary to provide a copy of the Reasons for judgment dated 24 May 2023, and a copy of each of Dr B’s reports, to any treating psychologist or psychiatrist with whom the mother engages.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

The parents ("the mother" and "the father") are engaged in a dispute relating to the future parenting arrangements of their only child, a little boy aged four (“the child”).
Following separation in February 2019 the mother initiated proceedings in the Federal Circuit Court (as it was then known) and orders were soon made for the appointment of an Independent Children’s Lawyer (“ICL”) and for the child to live with the mother and spend supervised time with the father.
From around the time of separation and throughout 2019 and 2020 the Department of Family and Community Services (as it was then known) (“the Department”) began to receive numerous reports in relation to the family.
Following a brief period of casework and several concerning incidents, in July 2020 the child was removed from the mother by the Department pursuant to the relevant state legislation and placed in the care of the father. A few days later the Secretary of the Department (“the Secretary”) intervened in these proceedings and the necessary consent was given for this Court to continue to exercise jurisdiction. Orders were also made allocating parental responsibility for the child to the Minister and providing that the child live as directed by the Minister and spend supervised time with the mother as directed by the Minister. These orders remain extant and pursuant to them the child has lived with the father and spent supervised time with the mother since this time. The mother’s time initially occurred on a weekly basis but was reduced by the Department to monthly in early 2022.
During the course of the final hearing the mother became self-represented. It became clear from her evidence and final written submissions that she maintains the child has been sexually abused, physically assaulted and neglected by the father. The mother also appears to contend that the child has been abused by other members of the paternal family and that the Department has assisted the paternal family in perpetrating that abuse and attempted to cover up the harm caused to the child. In her final proposal, the mother in summary seeks orders that the child live with her and spend time with the father for two hours every three months supervised by herself and the maternal grandmother and that the Department “strictly not to interfere in our lives again”.
The Department, the father and the ICL have at all times sought orders in similar terms to the effect that the child live with the father and that he have sole parental responsibility for the child except in relation to the child’s time and communication with the mother. These parties all propose that the Minister hold sole parental responsibility in relation to the child’s time and communication with the mother for a specified period of time before it is shared equally between the father and the Minister and eventually held solely by the father. The proposals of these parties otherwise vary slightly from each other.
It is the contention of the Department, the father and the ICL that the need to protect the child looms large in these proceedings and they each seek a finding that the mother poses an unacceptable risk of psychological harm to the child arising from abuse or neglect. Further, each of these parties hold significant concern about the mother’s mental health and the impact that her functioning has on her capacity to provide for the needs of the child.
The question for me to determine is whether it is proper for orders to be made as sought by the mother, father, the Department or the ICL having regard to the best interests of the child as the paramount consideration.
BACKGROUND
Events prior to the commencement of the proceedings
The parents, now aged in their thirties, were both born in a Middle Eastern country and moved to Australia with their respective families when they were children.
The mother struggled significantly as a child and adolescent including being bullied and physically assaulted at school and at times was prescribed anti-depressants.
During childhood the father was diagnosed with a condition (“the father’s medical condition”) that affects the arteries in his brain. He deposes that this condition impacts his learning ability in relation to technical, complicated or new information, but contends that it has no impact on his day to day living or on his parenting capacity. The mother contends that this medical condition significantly impacts on the father’s physical and mental health and is a matter to which I will return.
In around 2015 the parents met at the church where they each attended and in early 2016 were married.
There is significant dispute between the parents as to the nature of their relationship after they married. It is the father’s case that since the time he first met the mother he has seen her struggle with poor mental health and throughout the course of their marriage her mental health deteriorated significantly. Although the mother’s mental health is a matter which will be discussed in greater detail in these Reasons, it suffices to say at this stage that the father observed the mother to experience very strong mood swings, changing from a high and elated mood to severe depressive episodes in which she harmed herself by hitting and cutting herself and at times expressed suicidal ideation.
It is the mother’s case that from the time the parents married, the father has been violent towards her including perpetrating physical and sexual assaults and subjecting her to serious psychological abuse. The mother further deposes that the father was encouraged to act in this manner by the paternal grandparents whom she claims were also abusive towards her. This abuse is denied by the father and will be considered later in these Reasons.
In 2016 the maternal grandparents separated. The father deposes that at this time the mother became emotionally heightened, crying constantly and showing aggression towards the maternal grandfather. According to the father, during this time the mother attended one appointment with a psychologist but was dissuaded by the maternal grandmother from attending any further appointments. The mother’s relationship with the maternal grandmother is a matter in dispute in these proceedings as it is the mother’s case that the father forced her to cease contact with the maternal grandmother and other family members. This is denied by the father who contends that throughout the parents’ relationship he observed the maternal grandmother to verbally and emotionally abuse the mother, causing the mother severe emotional distress. According to the father, he encouraged the mother only to create boundaries with the maternal grandmother to assist her emotional wellbeing.
In late 2018 the parties and the child moved to live with the paternal grandparents.
In 2018 the maternal grandfather died. It is the father’s case that around this time the mother’s mental health further deteriorated and that following the maternal grandfather’s death she became obsessed with attempting to retain the maternal grandfather’s home which was owned by the Department of Housing. The father deposes that as the Department of Housing had refused her application to retain the home, the mother requested the father divorce her so her application could be successful. He further deposes that the mother resisted returning the keys to the home to the Department of Housing and changed the locks on the home.
There is no dispute between the parents that on 6 and 7 February 2019 they argued about the mother returning the keys to the Department of Housing and that following this incident the mother left the paternal family home where the parents were living with the paternal grandparents and the child at the time, leaving the child with the father. It is the mother’s case that the father and paternal grandfather assaulted her in the course of the events on 6 and 7 February 2019, which the father denies. The events surrounding the parents’ separation is a matter to which I will return.

In February 2019 the father was charged and a provisional Apprehended Domestic Violence Order (“ADVO”) was issued by police against him for the protection of the mother.
Events following the commencement of the proceedings
On 8 February 2019 the Department received a risk of significant harm report (“ROSH report”) detailing that the mother had “fled” the home following an assault upon her by the father two days previously. On the same day the mother initiated these parenting proceedings in the Federal Circuit Court (as it was then known).
On 11 February 2019 orders were made that the father return the child to the mother and that the child live with the mother who was herself required to live in the maternal grandmother’s home and accept the grandmother’s supervision whenever she was with the child. On that date an ICL was also appointed and the proceedings were adjourned for further interim hearing on a later date.
On 18 February 2019 orders were made for the child to spend time with the father for a period of two hours on Monday and Thursday afternoons, supervised by the paternal grandmother. Orders were also made for the parents to attend upon a Family Consultant (as Court Child Experts were then known) and that the Family Consultant prepare a Limited Issues Report to assist the Court.
In March 2019 the father attended a Local Court for hearing of his criminal charges. The hearing was adjourned part-heard until 13 June 2019.
It is the father’s case that although the interim arrangements for the child’s time with him initially went ahead without issue, from 16 May 2019 the mother ceased making the child available to spend time with him altogether. It is the mother’s case as I understand it, that she had such serious concerns about the child’s wellbeing in the care of the father and paternal family that she was behaving protectively in withholding the child from him. According to the mother’s update affidavit, from around March 2019 she became concerned as she considered that the child’s body and genital area was bruised.
In June 2019 the father’s criminal hearing was completed with the result that all four charges were dismissed. The application for final ADVO against the father for the protection of the mother was adjourned until August 2019.
On 28 June 2019 the father filed a contravention application in relation to the mother’s non-compliance with orders for the child’s time with him and the requirement that the maternal grandmother be present at all times that the mother is caring for the child.
On 25 July 2019 a report described as a “Family Report” dated 18 July 2019 (“the Family Report”) was released to the parties. It appears from the court record that this report was prepared pursuant to the order made on 18 February 2019 for a Limited Issues Report and has been incorrectly labelled as a Family Report. Although this report is relied upon by the mother, it has been largely superseded as two more comprehensive reports were prepared by a single expert in the proceedings. Of particular relevance for this background, it is noted that the Family Consultant assessed that the mother had “fragile mental health” and she was “displaying poor emotional regulation”. The mother reported to the Family Consultant that the maternal grandfather was physically and emotionally abusive towards her during her adolescence and the Family Consultant opined that the mother appeared to be “suffering severe grief and loss issues”. The Family Consultant also recorded that the mother appeared to share an ambivalent relationship with the maternal grandmother as she “perceives maternal closeness and relies on her for assistance” with the child yet the mother also had “the feeling of being controlled”.
On 29 July 2019 orders were made with the consent of the parties that the child spend time with the father from 9am to 5pm each Saturday. The father asserts that the child only spent time with him sporadically after these orders were made and that from the end of October 2019 the mother failed to make the child available to him at all for a couple of months.
On 6 August 2019 the Department received a ROSH report alleging that the mother had spat at the father and verbally abused him during a break at a court event, saying things such as “I will destroy you and your family”, “you are very bad and you are like rubbish” and “I will not let [the father] see his son except if he gives me everything I want”.
In August 2019 the father consented to a final ADVO against him for a period of 12 months for the protection of the mother without making any admissions about his conduct.
On 20 November 2019 there was an incident in which the mother locked herself out of her apartment while the child was left alone inside. It would appear that the mother contacted her landlord to have someone attend her property to break the door down and that she telephoned the father to inform him of the events as they were unfolding. Departmental records indicate that this event was subsequently reported to the Department in December 2019.
The father deposes that during December 2019 he received a number of text and voice messages from the mother which contained verbal abuse, derogatory remarks and threats that he would never see the child again. The father deposes that at this time he had not seen the child for around two months and had received reports from various people including members of the parents’ church community that the mother had been seen dragging the child by the ear, slapping him and that bruising had been observed on the child.
On 13 December 2019 the Department received a non-ROSH report in relation to risk of neglect in the care of the mother in which she was reported to have been observed to have “glazed” eyes and appeared “paranoid” as she made statements that the father and a priest were making threats towards her. The expert who had police records available to her for the purposes of her assessment noted that those records indicate that the mother made an “irrational allegation” on 19 December that the father stole clothing from her apartment and shouted demands to the police that he be arrested.
The mother presented the child to the Emergency Department of a children’s hospital (“the children’s hospital”) in January 2020 with concerns that the child had a widespread rash, mild cough and a history of fever. An assessment report produced by the children’s hospital records that the mother reported previous domestic violence by the father and that he had hit the child when the child was two weeks old. On examination the child had a rash on his face and torso and a bruise on his right cheek which the mother reported was sustained when he woke from a nightmare and hit his face on his cot. The mother described “frequent head banging behaviour” and was advised to attend upon a paediatrician regarding the behavioural difficulties.
On 20 January 2020 the father received a letter from the Department of Human Services advising that the child’s immunisations were overdue.
On 8 February 2020 the mother advised the father that she had scheduled an appointment for the child with a paediatrician and although the parents had agreed they would attend the appointment together, the mother told the father he could only attend if he paid her a sum of money. The father did not pay the money and the mother failed to advise him of the time and location of the appointment.
The Department received a ROSH report on 11 February 2020 alleging that the mother had failed to take the child to a paediatrician for assessment as required and that she had been seen to yell and swear at the child and engage with the child in a “rough” manner.
On 29 February 2020 the mother informed the father that she intended to block his telephone number. This was a number that the parties were required to use pursuant to the 4 July 2019 orders to notify the other party by text message if the child’s time with the other parent could not take place.
The father deposes that on 7 March 2020 the mother acted in an inappropriate and aggressive manner at a changeover event by swearing, making obscene hand gestures and spitting on him and then beeping the horn of her car and following him for a part of his drive home. He also says that from around this time the child began to exhibit poor emotional regulation such as hitting himself, blanking out and having temper tantrums.
In March 2020 the mother began receiving treatment from a psychologist (“the mother’s psychologist”) under a Mental Health Plan.
On 21 April 2020 the father filed an Application in a Case seeking that the parents equally share parental responsibility for the child, that the child live with him and spend supervised time with the mother for eight hours each Saturday.
On around 27 April 2020 the father received a phone call and subsequent text message from a woman, Ms C, who wished to engage the services of the business he operated at that time. Soon after this initial phone call Ms C began to frequently send the father flirtatious and provocative text messages and sexual photographs and made requests that the father also send her photographs of this nature. The father asked Ms C where she obtained his telephone number but she refused to answer the question.
Approximately two weeks after the initial phone call with Ms C, the father informed his solicitor of the text messages and gave Ms C’s phone number to the solicitor. The solicitor had also received calls from the same number by a woman who said her name was Ms D and claimed to be a barrister from Melbourne acting on behalf of the mother and seeking information in relation to the proceedings. The solicitor advised the father that she had refused to provide Ms D with any information as there was no record of a barrister by this name. It was subsequently confirmed that Ms D’s name is not recorded by either the Victorian or NSW professional bodies for barristers. The mother became aware a short time after these phone calls were made that a friend of hers, Ms E was holding herself out as Ms C and Ms D.
In May 2020 the mother presented the child to the Child Protection Unit (“CPU”) at the children’s hospital and alleged that he had been sexually assaulted by the father. An Assessment Report produced by the children’s hospital indicates that the mother informed medical staff that when the child was returned to her care by the father on 1 March 2020 she noticed multiple areas of bruising and nail marks around the child’s genital area and pubis and that she had made similar observations on every previous occasion when the child was returned by the father to her. The mother also advised medical staff that the child had been wetting himself at night (which she believed was unusual) and had become more unsettled during nappy changes and at bath time. The mother also reported that in June 2019 the child developed vomiting, diarrhoea and severe nappy rash after spending time with the father and that she believed that the father had abused the child on this occasion. The mother informed the medical staff that her “barrister friend” (“Ms D”) had examined the child and thought he had been sexually abused. Medical staff examined the child and aside from a mild nappy rash and a birthmark known as a “Mongolian spot”, his ano-genital examination was normal. The Assessment Report notes that the mother was frustrated that the children’s hospital did not intend to undertake pelvic imaging of the child to exclude possible injury and said that she would organise this herself.
A report was received by the Department on 8 May advising that the child exhibited suspicious indicators consistent with sexual abuse as had been reported by the mother.
On 12 May 2020 the Department received a report concerning the child exhibiting suspicious indicators consistent with sexual abuse. It was reported to the Department that a “barrister friend ([Ms D]) examined [the child] and felt [the child] had pain around his genital area and suspected it was a sexual assault”. It was reported that the mother presented the child to hospital and requested an assessment be completed and reports indicated that there were no concerns raised following a genital examination and that blood tests for chlamydia and gonorrhoea were negative. It was further reported to the Department that Ms D contacted the hospital requesting a Discharge Summary and photographs of the child’s genitals. Following the hospital’s refusal to provide the photographs to Ms D, the mother was reported to have contacted the hospital advising of further concerns regarding the child including:
·The mother’s “barrister friend” stated “a penis was shoved into [the child’s] mouth”;
·That “[the child]’s penis is bent and it could be fractured”;
·The child protects his genitals because “psychologically he thinks [the mother] will do it to him”;
·The paternal grandmother has had sex with the child and there are “prints of her fingernails on him, on his genitals” which the mother clarified as “you know, needles”;
·The father is bribing everyone with money so the child could be taken from the mother;
It was also reported that when the mother contacted the hospital she also stated “I would rather my son and me be buried alive”.
A second report was made to the Department on 12 May 2020 which noted similar concerns to the report outlined above and also claimed that the child presented with bruising to the penis and perianal area, that the child’s mouth was “full of cuts and ulcers” and that bacteria had been found in the child’s genitals. The notifier also reported that the mother had been advised by a “paediatrician and several barristers” that they thought the child had been sexually abused. The reporter further alleged that there is a history of domestic abuse and that the father may be continuing to financially control the mother by failing to provide any more than $6 a month in financial support.
On 14 May 2020 the father’s Application in a Case was fixed to be heard before a Judge by way of phone-link. On that day the mother’s friend “Ms E” purported to be a barrister appearing as agent for the mother’s solicitor “Ms D”[1], although the mother had no solicitor on the record at that time. During the course of the interim hearing concerns arose that Ms E was not a legal practitioner. The father contends that he was present on the phone line during the court event and recognised the voice of Ms E to be very similar to the voice of the person he knew as Ms C and his solicitor recognised the voice to be very similar to the voice of the person known to her as Ms D. Ms E participated in the court event from the maternal grandmother’s home where she was present with the mother and the mother was aware that Ms E was not a solicitor and that she was pretending to be Ms D, who the mother believed was a barrister in Melbourne.
[1] In the course of the court event on 14 May 2020 the person “Ms E” referred to both herself and “Ms D” interchangeably as being both solicitors and barristers. The identity of this person was not entirely clear however it is apparent that this person has had significant involvement with the family and in particular the mother and that she has used multiple aliases including Ms C, Ms E, Ms D and Ms J. This person is referred to throughout these Reasons using these aliases interchangeably.
Due to the Court’s concerns an order was made that the Marshal of the Court investigate whether Ms E and Ms D were legal practitioners entitled to practice in any state or territory in Australia, whether the Court was misled in respect of Ms E being a solicitor, whether actions had been taken in the proceedings on the mother’s behalf to pervert the course of justice and whether some other offence had been committed. At that court event a request was also made by the Court pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) that the Department intervene in the proceedings and the ICL was directed to request that police conduct a welfare check in respect of the child. The interim hearing was then adjourned until 22 May 2020.
The following day, 15 May 2020, the father received a phone call from his parish priest who advised him that the mother had contacted him expressing a desire to reconcile and to continue the marriage and seeking the priest’s assistance to achieve this.
The Assessment Report produced by the children’s hospital records that the mother also presented the child to the CPU again in May reporting concerns that the child was more distressed with nappy changes and because of this she continued to believe he had been sexually abused by the father. The mother also reported that Ms D had seen blood tests previously performed at the hospital and advised that they showed that the child had been poisoned. The mother also stated that “a doctor who works for her barristers’ team…said the appearance of [the child]’s anus is unusually large for his age which would indicate sexual abuse”. It is also recorded that the mother had numerous photos of the child’s genitalia overwritten with annotations to the effect the images were evidence of “rape” by the father. It is recorded that the mother became “escalated” and “very frustrated” during an examination of the child and that she yelled and made inappropriate demands that the child have a “CAT scan or ultrasound (or) X-ray performed to his pelvic area”. It is noted that when the mother was asked to place a bracelet on the child, the child was crying and after the mother put the bracelet on the child she said to him “see it wasn’t bad, asshole”. An examination of the child revealed no matters of concern but due to the mother’s distress and the recurrent presentations, a follow up appointment was organised with the mother in late May 2020.
On 16 May 2020 the mother did not make the child available for his time with the father.
On 21 May 2020 it was reported to the Department that the mother had presented the child to the hospital and requested the hospital complete a skeletal survey and x-ray.
On 22 May 2020 at the resumed interim hearing the presiding Judge disqualified himself from further hearing and transferred the proceedings to the Family Court (as it was then known). During the course of this court event, the mother, who appeared in person by telephone made allegations that the father had sexually assaulted the child and the ICL then confirmed that documents produced on subpoena indicated that the mother had presented the child to the Emergency Department at the children’s hospital making allegations along these lines. In notations made by the Court on that day it was requested that the proceedings be considered for inclusion in the Magellan Program[2] and the Court renewed its request for intervention by the Secretary of the Department.
[2] The Magellan program is a Case Management program in the court known as Federal Circuit and Family Court Division 1 that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.
A Memorandum dated 27 May 2020 was prepared by the Marshal of the Court summarising the findings of his investigation into the Court’s concerns regarding the court event on 14 May 2020. The Marshal in summary concluded that the names of Ms E and Ms D are not recorded in the Australian Legal Practice’s Register in any state or territory in Australia and on that basis it appears that those people are not qualified legal practitioners in any Australian jurisdiction. Further, the Marshal concluded that Ms E did present herself as though she was a qualified legal practitioner during the court event on 14 May 2020 and had misled the Court. The Marshal in his Memorandum recommended the matter be referred to police for investigation but it appears that no further action was ever taken. The Memorandum was not released to the parties but was later marked as an exhibit during the course of the final hearing.

The mother presented the child to the CPU of the children’s hospital for the follow-up appointment in late May 2020 and the maternal grandmother also joined the appointment by telephone. The mother reported concerns regarding the treatment of the child by the father including her belief that the child was being poisoned as each time he returned from the father’s care she claimed that he would vomit severely. It is recorded that the mother was unable to consider other causes for the vomiting and believed the father was “taking revenge on her” by abusing and poisoning the child. The mother showed medical staff at the CPU three pictures on her phone of a male toddler’s genitalia which she reported were photos of the child, which are recorded by medical staff record as depicting what appeared to be nappy rash.
On 3 June 2020 the father filed an urgent Application in a Case seeking orders that the child move to live with him.
At the first court event following transfer of the proceedings to this Court on 4 June 2020, it was noted that the mother who was representing herself informed the Court that she was no longer living with the maternal grandmother. When informed by the Court that the interim orders then in place required that she live with the maternal grandmother and that the maternal grandmother supervise her whenever she was with the child, the mother then advised the Court that she was still residing with the maternal grandmother. The mother also advised the Court upon questioning that she was currently seeing a psychologist. At this court event it was also noted that there were a number of pending interim applications in the proceedings and to enable these applications to be dealt with more quickly, the father withdrew his contravention applications. Orders were made for each party to file evidence in support of the outstanding applications and otherwise prepare all outstanding applications for interim orders for hearing. The proceedings were also allocated to the Magellan Program and an order was made for the preparation of a Magellan Report. The Court noted the previous requests to intervene made to the Department and ordered that all orders made on this date together with other court documents be forwarded to the Department.
On 5 June 2020 the Department received a report in relation to the child which was categorised as “dangerous behaviour involving child or young person”, “risk of significant psychological harm”, “risk of physical harm with parental risk factor of domestic violence” and “risk of significant neglect”.
Following the Court’s two requests for the Department to intervene in the proceedings, the Department allocated the family for active casework on 11 June 2020.[3] Ms F was allocated as the caseworker and on that day met with the mother and maternal grandmother. During their meeting the mother expressed concerns about bruises she had observed on the child’s genitalia and reported that she had taken the child to hospital to have these bruises investigated on several occasions. The mother also shared information with Ms F regarding her relationship with the father, her mental health history, her employment history and her family background. Later that evening the mother sent Ms F a series of “conditions” which she requested that the father follow if he were to spend time with the child.
[3] There appears to be a significant dispute in relation to the mother’s care of the child following separation. In her trial affidavit and “update” affidavit, the mother deposes generally to her appropriate care of the child during this period and the tenor of her evidence is that the only concerns in relation to the child related to the care provided by the father and paternal family. From the time of separation until 14 May 2020 numerous notifications were made to the Department about the child but all were closed without any assessment. Most of these notifications related to allegations about the father perpetrating family violence and concerns that the child was being neglected when spending time with him. Some reports related to the impact that the mother’s behaviour and mental health difficulties may have upon the child. Those notifications also raised the question of the mother being the perpetrator of family violence towards the father and his family. From around December 2019 a number of notifications related to the question of neglect of the child in the mother’s care. From May 2020 the focus of notifications to the Department related to allegations of sexual abuse allegedly perpetrated by the father or paternal family members. From around this time there were also requests made by the Court that the Department intervene in the proceedings. Although it appears from the mother’s affidavits that she disputes the complaints about her care of the child, from the time the Department became involved in casework with the family from June 2020 she does not give evidence in either affidavit about her conduct towards the child. The mother also did not challenge the caseworkers who gave evidence in the proceedings about the information received in the course of the Department’s casework from June 2020. For this reason the events that follow are set out as the Background to the proceedings.
Ms F who filed an affidavit in the proceedings deposes that the following day, in the course of her casework, she contacted the manager of the childcare centre where the child was attending and that the manager reported an incident which had occurred earlier the same week. Staff reported that there were no matters of concern relating to the mother when she collected the child on this occasion but shortly after leaving another parent reported that the mother needed assistance. Staff then observed the mother to be crying and shivering while carrying the child. Childcare staff gave the mother water and encouraged her to relax as they observed the child to be frightened. The childcare manager also reported that there had been another incident several months earlier in which the mother was observed to be “frozen at the spot” (sic) in the car park, screaming at the child.
On 26 June 2020 the maternal grandmother sent Ms F a text message in which she alleged that Ms F was “working for” the paternal family.
In late June 2020 Ms F and another caseworker conducted a visit at the mother’s home being premises separate from the maternal grandmother despite orders requiring her to live with the maternal grandmother. Ms F deposes that when questioned about her mental health and interactions with the child, the mother became agitated and upset and began to scream and tear off her clothing. On this day, a Safety Plan was developed to address the potential impacts of the mother’s mental health difficulties on her capacity to care for the child. A component of that Safety Plan was the presence of an in-house support service to provide overnight support for the mother in her home which was to commence immediately.
Although the mother agreed to the Safety Plan developed by the Department as she thought it may be a good idea to have some help, the assistance provided by the support service was not as she had expected. The mother took issue with the presence of a family support worker in her home claiming that this interfered with her privacy and that the support worker told her what to do and criticised her parenting.
In early July 2020 the mother asked the family support worker to leave, or in the mother’s words “kicked her out” and called police to attend at the home. On the same day the Department received a notification (inferentially from the family support worker), reporting concerns regarding the mother’s aggressive behaviour and the child’s physical safety in her care. The notifier reported that the mother had become agitated, started yelling and asked the family support worker to leave her home and slapped the support worker’s arms and threw the support worker’s belongings. A further report was received the following day raising concerns of physical abuse of the child by the mother and concerning the mother’s approach to managing the child’s behaviour. The report indicated that the mother had been observed to drag the child by the arm and push him while he cried, had failed to respond when he fell over while climbing and had locked him in the garage as a behaviour management strategy. The mother was also observed to say to the child “go over there and hit yourself on the lounge” and the child was then observed to hit himself on the head. The report also stated that the child was observed to be crying and indicating that he was hungry and the mother responded by eating a muffin in his presence.
The following day Ms F together with another caseworker attended the maternal grandmother’s home to speak with the mother.[4] During this meeting Ms F discussed with the mother the Department’s concerns for the child’s safety and informed her of the need to comply with court orders which at that time required that she live with the maternal grandmother. Ms F deposes that the mother informed her that she did not intend to comply with court orders and no longer wished to work with the Department.
[4] It also appeared in the proceedings that the mother challenged the account of Ms F concerning the events in early July 2020. However, in her trial affidavit the mother says no more than “On [...] July 2020, DCJ worker came to my house and removed my child on basis my child was at risk. I questioned DCJ’s decision on the basis that I never neglected my son and he never sustained any injuries when in my care. The DCJ told me that their decision was based on allegations made against me by [the father] and his family.” (as written). Although I assisted the mother as a self-represented litigant in asking questions of Ms F at final hearing, the effect of these questions was not to question Ms F’s evidence about the events of [...]July or thereabouts. For this reason, the evidence relating to the events at the time of the child’s removal of the mother’s care are set out as background facts to the dispute.
Events following the child’s removal by the Department and Intervention in the proceedings
Later on this day Ms F and another caseworker attended the mother’s home when the maternal grandmother was also present and the mother again repeated her intention to continue to reside in a home separate from the maternal grandmother. Ms F advised the mother that she intended to remove the child from the mother’s care and place him in emergency care. Upon receiving this news the mother and maternal grandmother became aggressive and the mother attempted to lock herself and the child in the bathroom. The child was then removed from the mother pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) with the assistance of police. The mother was subsequently transported to a psychiatric hospital for assessment due to concerns about her presentation. The child was placed by the Department in the care of the father who was living with the paternal grandparents.
On 6 July 2020 the father together with caseworkers from the Department developed and signed a Family Action Plan which included providing in-home support to the father to assist him in the child’s transition to his full time care and to identify any other assistance that he may require.
On 7 July 2020 the Secretary of the Department filed a Notice of Intervention in the proceedings. The following day at a court event before me orders were made with the consent of the parties pending further order that the Minister for Communities and Justice (“the Minister”) have parental responsibility for the child, the child live as directed by the Minister and spend time with the mother as directed by the Minister (“the 8 July 2020 orders”). It was also noted at this court event that in my view it was appropriate that an expert report from a psychiatrist be obtained in the proceedings.
From 8 July 2020 the mother commenced spending supervised time (referred to by the Department and in these Reasons as “family time visits”) with the child for two hours twice per week at the Department’s local office. The mother was often accompanied by the maternal grandmother and sometimes by her sister on these occasions. The mother gave oral evidence that from the time she began spending time with the child at the Department’s office she has made audio recordings of every occasion that she has spent time with the child though I understand that Departmental staff were unaware of these recordings at the time.
It is the mother’s case that the child has not been adequately cared for by the father and paternal family since he has been living with them. She deposes that the father’s health condition has affected the father physically and mentally and that he is not capable of attending to the child’s needs and that the paternal grandparents are elderly and that the paternal grandfather also has significant health difficulties and “spends most of the day in his bed”. The mother also deposes that as the paternal grandmother works part-time she is unable to assist the father taking care of the child. In her update affidavit the mother deposes generally that the father and his family “have repeatedly failed to provide proper care for [the child] (for example: clean clothing, nappy changes, food, water, milk or treating his injuries).” In this affidavit she deposes to specific occasions on which the child reported to her that the father had harmed him or she had made observations about the child which indicated to her that he had been harmed in the father’s care. Each of the mother’s specific allegations are set out at the relevant time later in this Background.
It is the tenor of both Ms F and Ms H’s evidence that the mother has been generally uncooperative with these caseworkers and other supervisors in relation to the child’s time with her. Ms F deposes that the mother’s time with the child required detailed planning and preparation on the part of the Department as small changes to the arrangements could cause the mother’s behaviour to escalate. At these times the mother has been aggressive and threatening to caseworkers in person and by telephone and text message. The mother has also on numerous occasions refused the requests of supervisors to cease certain behaviours when she has been informed that such behaviours are not permitted or are inappropriate.
The father was assisted by the Department in July 2020 to settle the child in his full time care. During this period no significant concerns arose in relation to either him or the paternal grandparents. Since this time the Department have conducted monthly home visits to the paternal grandparents’ home where the father and child live.
The Department received a notification on 16 July 2020 in which it was reported that two days earlier the child had been observed to have unusual red marks around his anus that did not look like nappy rash and raised the possibility of suspected neglect or abuse by the father. It was also reported that it appeared as if something had been inserted into the child’s bottom and that there was a tear along the top of the child’s anal passage. In July 2020 the child was assessed for indicators of sexual abuse by the CPU at the children’s hospital at the request of the Department. The assessing doctor informed the Department that they had no concerns for the child’s wellbeing and that there were no indicators of sexual assault. On this day in the course of a meeting between Ms F, another Departmental officer, the mother and the maternal grandmother, the mother informed Ms F that she had impersonated Ms F on the phone to the family support service.
Although the mother does not depose to particular occasions on which she observed that the child was bruised and otherwise injured when he spent time with her after being removed from her care, it is apparent from her final submissions that she asserts the child was injured on many occasions after July 2020 and believed that these injuries resulted from being sexually and physically abused and neglected by the paternal family. She claims to have reported her observations of ongoing injuries throughout this period to the Department and that Departmental staff either ignored her concerns or colluded with the paternal family to cover up the fact that the paternal family were injuring the child. There was not however any evidence adduced in the proceedings that anything the mother observed about the child’s condition after he was taken into care and placed with the father was in fact an injury.
On 17 September 2020 orders were made with the consent of the parties appointing a child and adolescent psychiatrist as a single expert (“the expert”) in the proceedings. On the same day the mother attended a police station and reported to police that the father had sexually assaulted the child and showed police a photo which she purported was evidence of the abuse. The mother also made complaints that the child was not well looked after in the father’s home and made complaint that the paternal family wears a strong perfume which causes the child to have a reaction on his face. A police officer contacted Ms F, the caseworker then involved with the family and no further action was taken.
On 8 October 2020 the mother was due to spend time with the child at the Department’s office. Prior to time occurring, the mother was informed by a supervising caseworker that the child was on antibiotics and he was not permitted to have any other medication administered during his time with the mother. The mother became heightened and informed the caseworker that she would be administering medicine and when it was explained to the mother that that could be dangerous for the child, the mother stated “I don’t care, I will take the risk”. The Department consequently cancelled the child’s time with the mother and upon being informed of the same the mother stated “I would rather my son be dead than with you”. The mother would not leave the Department offices and called the police in attempt to have the caseworkers arrested. Police arrived at the office and the mother subsequently left the office with police.
In mid-October 2020 Ms E who had been a friend of the mother’s assisted the father to retrieve a vehicle which was in the mother’s possession.[5] The father deposes that when he met with Ms E she informed him that the mother had sent her a series of messages on 9 and 10 October in which she threatened to kidnap the child, kill herself and the child and stab and drug the whole paternal family. The father deposes that he contacted police who attended his home and took a statement and that he believes police also took a statement from Ms E. Police attended the mother’s home on the same day and she was taken to a hospital under s 22 of the Mental Health Act[6].
[5] It is not clear that the father was aware that Ms E was the same person who claimed to be the solicitor and a Barrister (Ms D) acting on the mother’s behalf at the Court event in May 2020 (and possibly Ms C). The mother deposes to Ms E being known by many names.
[6] S 22 of the Mental Health Act 2007 (NSW) allows a police officer who finds a person who appears to be mentally ill or mentally disturbed to apprehend the person and take the person to a declared mental health facility if certain requirements are met.
It would appear (from the expert’s review of the mother’s psychiatric records summarised in the expert’s report) that on this occasion the mother was discharged with a diagnosis of “emotional unstable personality disorder, borderline type” but was not formally assessed face-to-face. Following her discharge from hospital in mid-October 2020 the mother was arrested and charged by police with two counts of stalk and/or intimidate (in relation to her alleged threats to harm both the father and Ms E) and one count of using a telephone to threaten serious harm. A provisional ADVO was also taken out by police against the mother for the protection of the father and the child. The mother’s time with the child was reduced from twice to once weekly following this incident.

On 21 October 2020 Ms F met with the mother and grandmother to discuss the Department’s concerns about the messages the mother had sent containing threats to kill the child and the father. The mother brought with her to the meeting several printed text messages which showed that her friend “Ms J” uses a range of different names on different media platforms. The mother confirmed that she had engaged in conversations with Ms J and that she had used different names on each of these platforms. The mother also claimed that the father and Ms J were in a relationship. When Ms F raised concerns with the mother that she was attempting to use old messages to try and manipulate the facts the mother asserted that her phone had been hacked when she was taken to hospital by police in October 2020.
Ms F subsequently contacted the father who confirmed that Ms J was not his girlfriend but was a friend of the mother who he had not spoken to until an issue arose between him and the mother in relation to a car.
On 20 November 2020 the mother met with Ms F and informed her that she had a new phone number as her previous number had been “hacked”. The mother expressed concerns to Ms F that on the last occasion she had spent time with the child, the child was playing with a car and crashed it into the wall and then his body went stiff and he looked dead. The mother told Ms F that she was very scared when the child did this and shared concerns that he may be watching violent movies in the father’s home.
On 30 November 2020 the mother sent a letter to Ms F and another Departmental caseworker expressing concerns about the care of the child in the paternal household and indicating that she had better capacity to care for the child than the father.
In January 2021 the father, paternal grandparents and the child attended an assessment interview with the expert. The mother, maternal grandmother, a maternal aunt and the child attended an assessment interview with the expert the following day.
In mid-February 2021 the mother telephoned a Departmental caseworker and made statements that caused the caseworker to become so concerned for the mother’s emotional wellbeing that the caseworker with the mother’s agreement called an ambulance to attend upon the mother.
In late February 2021 the mother called the father’s mobile phone from an unknown number and then called the home phone at the paternal grandparents’ home. The paternal grandmother answered the phone and the mother said to the paternal grandmother words to the following effect :
Please don’t hang up the phone! Do you really believe I will kill [the father]? And you? When I lived with you, I never used the large knife, I only used the small knife. I want to come to the house to talk to you and [the father]. I want to come please I want to come.
The paternal grandmother told the mother not to attend the home and hung up and the father contacted police. The mother was charged with breaching the ADVO. Although the charge was subsequently found proved it was dismissed without a conviction being recorded.
The expert’s report dated 22 February 2021 (“the expert report”) was released to the parties on 22 March 2021 and is a matter to which I will return. It suffices to say for the purpose of this background that the expert had no identifiable concerns about the father’s care of the child but assessed the mother’s presentation at assessment as markedly concerning and following an evaluation of other material considered that the mother may have a severe personality disorder. Ultimately the expert recommended that the child live with the father and that the father hold sole parental responsibility for him. She also recommended that the child spend time with the mother monthly at a contact centre and that the family be reviewed in 12 months to ascertain if it is possible for the child to spend more time with his maternal family. The expert further recommended that the mother have an extended assessment by a forensic psychiatrist who could also have a treating role if needed.
In March 2021 the parents were divorced.
On application by the Secretary orders were made on 6 August 2021 for a supplementary report from the expert in relation to the risk, if any, to the child in continuing to spend time with the mother on a weekly basis and recommendations for suitable interim arrangements prior to final hearing.
In late August 2021, Ms H became the Departmental caseworker with day to day casework responsibility for the child.
During an occasion on which the child was spending time with the mother in August 2021, the mother was heard by the supervising caseworker to swear at the maternal grandmother on a number of occasions. When the maternal grandmother later arrived at the family time visit, the mother raised her voice and stated “I am going to kill you” in the presence of the child who became upset and was crying.
From 1 September 2021 until 12 October 2021, the child’s time with the mother took place electronically due to restrictions associated with the Covid-19 pandemic.
At a family time visit in October 2021, the mother expressed concerns about “scars” on the child’s arms and legs and also expressed concern about the size of the clothes the child was wearing. Contrary to the request of the supervisor the mother changed the child into clothes she had brought with her.
On another occasion in the same month the mother was observed to be attempting to take photos of the child’s legs and when informed that she was not permitted to take photos, claimed that she was not taking photos and that it was not illegal for her to do so. The mother was again observed to be taking photos of the child and refused to follow the directions of the caseworker. The mother was heard to ask the child “who is hurting you” and the child was later heard to say that the father had hurt him.
The father deposes that between October and November 2021 police attended at the paternal grandparent’s home on eight occasions to conduct a welfare check on the child at the request of the mother. The father deposes that police attended the home late at night on each occasion and the child would wake at the sound of police officers at the door, become scared and take a long time to settle after the police had left the home.
During an occasion that the child was spending time with the mother on 2 November 2021 the mother expressed concern that the child was losing weight and that his clothes did not fit him. The maternal grandmother was also present on this occasion and expressed concern that the child’s glasses were too small. On another occasion in the same month the mother expressed concerns about a bump on the child’s eyebrow and questioned the child a number of times about whether the father had hurt him. The mother taught the child on this occasion to say “stop, don’t hurt me”. On a further occasion in the same month the mother was observed to repeatedly ask the child to see bruises on his body and the child was observed to state “papa hurt me”. It is recorded that at the end of this visit the child was very distressed and was yelling and screaming and calling out for the mother and also punched and pulled his hair.
The supplementary expert report dated 30 November 2021 (“the supplementary expert report”) was released to the parties on 6 December 2021. In summary, the expert in her supplementary report identified a number of risks to the child arising from him continuing to spend weekly time with the mother and recommended that the child’s time with the mother be reduced to two hours fortnightly for six weeks and monthly thereafter until the proceedings are complete and a final judgment is delivered.
In December 2021 prior to a family time visit the mother and maternal grandmother were informed that the child had a small scratch to the side of his eye. Upon hearing this information the mother and maternal grandmother became exceptionally heightened and began screaming at the caseworker and made threats to kidnap the child. The mother was also overheard by a Departmental staff member to inform the maternal grandmother of her intention to kidnap the child. The child’s time with the mother was cancelled by the Department upon hearing the mother’s threats. The mother was asked to leave the Department’s office but refused to do so until police arrived and escorted her and the maternal grandmother from the premises.
Two days later the mother and maternal grandmother attended the Department’s offices for the purpose of spending time with the child despite being informed that this family time visit had also been cancelled due to the mother’s previous threats. Ms H deposes that on this date the mother and maternal grandmother accused the Department of hiding the child as he was covered in bruises and of covering for and protecting the father as she alleged that another caseworker was in a relationship with the father. The mother also accused the Department of illegally “taking” the child and not following policies and procedures and threatened to “bring [the Department] down in court”.
On 21 December 2021 the mother was due to spend time with the child. Prior to this time event the mother had been emailed a copy of a “Family Time Agreement” document which detailed changes that were to be made to the arrangements for the child’s time with the mother. That document records that at this time the Department held concerns that the mother was making frequent reports to police about bruises on the child’s body causing police to conduct welfare checks on the child late at night. There were also concerns that the mother was making recordings of the child during family time visits and was encouraging him to report to the contact supervisor that the father was hurting him. To address these issues the Family Time Agreement document records that the mother was not permitted to have personal electronic devices with her during the events and was not permitted to speak in any language other than English or to whisper to the child. It was also a requirement that the mother was only permitted to change the child’s clothes with the caseworker present, and was to report any bruises observed on the child to the supervisor at the end of the visit and any concerns about the child’s care to the Department before reporting to police. The Family Time Agreement also stipulated that if the mother, maternal grandmother or any other person attending time is presenting in a manner which is harmful to the child, or if any threats are made towards the child or persons who care for the child, the child’s time with her will be cancelled immediately.
In the email sent to the mother on 21 December 2021, the mother was also requested to attend a meeting with Ms H following the family time visit on this day. Ms H deposes that during this meeting the mother stated that the Family Time Agreement was “rubbish”, that she would not comply with the requirements and that she ripped up a printed copy of the agreement. The mother also shouted at Ms H and another Departmental officer and attempted to take this officer’s notebook. The mother stated that she believed the caseworkers were attempting to take revenge on her and that the child was removed from her care due to a caseworker being in a relationship with the father. It was reported to Ms H that during the child’s time with the mother on this day the mother telephoned the maternal aunt and when she was informed by the supervisor that she was not permitted to do so she became emotional and yelled that this rule was not “legal”.
On 29 December 2021 the mother sent an email to Ms H and another caseworker making complaints about the legality of the reduction of the child’s time with her, asserting that she did not have mental health difficulties, raising complaints about the father’s capacity and concerns about risks to the child and accusing the Department of covering up the crimes of the father against the child. The following day the mother sent a further email attaching letters from friends and colleagues of the mother who asserted that the mother had capacity to care for the child.
On 30 December 2021 the mother attended a meeting with Ms H and other Departmental officers to discuss the decision to reduce the frequency of the child’s time with her. During this meeting Ms H advised the mother that the Department had become aware that she had been recording conversations between herself and officers of the Department and that making covert recordings is illegal. During the course of this meeting Ms H became aware that the mother was making an audio recording of the meeting itself and consequently Ms H ended the meeting. On this day Ms H sent a follow up email to the mother advising that the child’s time with her would not be extended. The mother sent an email in response stating that Ms H was continuing to harass and abuse her and stating that she would not be having any more meetings with the Department.
On 4 January 2022 the mother sent an email to a Departmental officer threatening Ms H and stating that the Department have no authority over her or the child.
On 10 January 2022 Ms H sent an email to the mother advising her to contact her lawyer if she was unhappy with the expert’s recommendation to reduce the child’s time with her and asking that the mother not attend the Department’s office the next day as the child will not be present. The mother replied to this email informing Ms H that Ms H was committing “more illegal act (sic) against the benefit of [the child]”, that she would attend the Department’s offices as there was no court order limiting her time with the child to once per month and making other allegations with respect to the conduct of the Department.
On 3 February 2022 an order was made with the consent of the parties granting leave to the Secretary to provide a copy of both expert reports to a forensic psychiatrist (“the forensic psychiatrist”) for the purpose of preparing a more extensive psychiatric assessment of the mother as recommended by the expert. Although the forensic psychiatrist did provide a report following his assessment of the mother pursuant to this order, for reasons that will be explained this assessment was ultimately of little assistance in the proceedings.
In early February 2022 the mother and maternal grandmother attended the Department’s office despite being informed that time with the child was not scheduled to occur that day. Ms H deposes that on this day she observed the mother to be erratic, sitting on the reception desk and pointing and hitting the glass in the reception area. Both the mother and maternal grandmother raised their voices at Ms H and the mother called Ms H a “bitch”. The mother and maternal grandmother refused to leave the Department’s office and were eventually escorted from the premises by police.
On 10 February 2022 Ms H emailed the mother scheduling a meeting on 14 February to discuss the Department’s concerns about the mother’s escalating behaviour when spending time with the child. On that day the mother responded to Ms H’s email refusing to attend the meeting, making allegations against Ms H and informing Ms H that she had made audio recordings of meetings with Ms H. Despite the mother indicating that she would not attend the meeting, on 14 February the mother and maternal grandmother attended the meeting with Ms H and another Departmental officer via a video platform. During the meeting the mother called Ms H a “liar”, a “manipulator” and repeatedly told her to “shut up”. The mother informed Ms H that she had recorded all of the occasions on which she had spent time with the child and accused supervisors of lying when making records of those occasions. The meeting was terminated by Ms H due to the mother and maternal grandmother screaming and shouting at both Ms H and each other.
During the family time visit on 15 February 2022 the mother attempted to take the child to use a bathroom which she was not permitted to use and when advised of this said “she’s not my fucking babysitter” in an apparent reference to Ms H. The mother was also heard to state in the presence of the child “I’m giving you one more chance about your behaviour [Ms H]”, “I want extra time with my son”, “[Ms H] has it coming for her”.
In March 2022 the mother’s criminal charges in relation to the alleged offences of 9 October 2020 were listed for hearing. The charges against the mother were withdrawn but a final ADVO was made against her for the protection of the father for a period of 12 months.
The final hearing
14 – 18 March 2022
The mother’s case
The final hearing commenced on 14 March 2022 at which time the mother was represented by counsel and an instructing solicitor. Although the final hearing took place in person the mother’s counsel was granted leave to appear by a video-link platform.
At the commencement of the hearing the mother’s proposal in accordance with her Amended Initiating Application filed 7 June 2021 was that she and the father equally share parental responsibility for the child and that the child live with each parent on a “week about” basis and for defined time on special occasions. The mother also sought an order that the parents agree to “review” the final orders of the Court (if needed) by attending mediation when the child is due to start attending school.
In the Outline of Case filed on her behalf, the mother conceded that she is “slightly more animated, excitable and erratic than the average person” but contended that this was not inconsistent with her being a loving and caring mother and it being in the child’s best interests for her to have “unsupervised, substantial and meaningful contact” with the child. The mother further conceded in oral evidence in chief that the allegations of sexual abuse made against the father “had insufficient basis in fact” and as such she “no longer stands by such allegations”.
At final hearing the mother remained firm that she had been subjected to serious and frequent domestic violence and assaults perpetrated by the father during the relationship and held concerns that the child has been or will be subjected to the father’s “uncontrollable aggression”. It was then the mother’s case that this concern arose from her observations of bruising on the child and the child’s repeated statements “daddy hurt me”.
The mother raised issues in her Outline of Case in respect of the father’s parenting capacity which she appeared to contend was negatively impacted by his unemployment and his medical condition. Further, the mother contended that due to the paternal grandparents’ age and “failing health” they are unable to provide sufficient assistance to the father with the day to day care of the child.
It was also the mother’s case that she would be supported in the care of the child by the maternal grandmother and that she would be prepared to return to reside with the maternal grandmother if she is “given unsupervised contact time with the child”. The mother also suggested that the maternal grandmother is prepared to be the primary carer for the child in the event the Court were to find neither parent is “fit or suitable to be carer for the child having regard to the child’s best interests”, though it is to be noted that the maternal grandmother has not sought to become a party to the proceedings or sought orders herself along these lines at any time.
Finally, it was submitted on behalf of the mother that the circumstances she has been subjected to, being separation from the father as a result of family violence, the removal of the child from her care and limitations and supervision being imposed on the child’s time with her have adversely affected her “personality traits”. She contended that it is likely there will be an improvement in her functioning if the child is to spend more time with her and if she perceives that she has “been justly treated in respect of her child”.

After the child is 12 years of age, the Secretary and the father will equally share parental responsibility for communication and time between the child and mother under this proposal (and arrangements for that time and communication) and it is noted that in the event supervision is deemed necessary during this period such supervisor will continue to be provided by the Secretary. It is also proposed that during this period the Secretary intends to work with the father to enable him to develop skills to independently arrange time with the child’s mother after the child is 16 years of age.
The Secretary proposes that parental responsibility which is initially to be allocated to the Minister and then shared between the Minister and the father is also to relate to supervision and all other arrangements for contact between the child and members of the maternal family. Although no orders have ever been sought in respect of other family members, it has been the pattern over many years that the maternal grandmother and often a maternal aunt attend family time visits and it may be anticipated that if orders are made as sought by the parties other than the mother, that the mother will continue to seek that the child also spend time with other members of the maternal family. In these circumstances, it is in my view in the child’s best interests for parental responsibility to extend as proposed by the Secretary although it is observed that the Secretary does not note a specific intention for the child to spend time with other members of the maternal family. The proposed order provides sufficient flexibility for that matter also to be determined from time to time as considered appropriate for the child.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
These are not salient considerations in determination of this parenting dispute where matters related to the risks to the child, the need to protect the child from harm and the capacity of each of the parents to meet the child’s needs assume such significance.
It is clear that each of the parents has actively taken opportunities available to each of them to participate in the child’s life in relation to the matters contemplated by this subsection. There is no evidence concerning the extent to which each of the parents has fulfilled their obligation to maintain the child.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There is no expense involved in the mother’s proposal for the child to spend time with the father as she proposes, that the child’s limited time with him be supervised by herself and the maternal grandmother. Although this matter is not addressed in any of the submissions there may be real difficulty in the parents having the capacity to arrange for the child’s time with the father to be supervised by the mother and maternal grandmother given the mother’s significant animosity towards the father and there being no evidence of their capacity to cooperate with one another.
The orders proposed by each of the other parties do not include delineated time between the child and his mother but in effect allow the Minister flexibility to arrange and suspend the child’s time with her as the circumstances require. Although it is noted in the Department’s proposal that it is the Secretary’s intention that the child spend time with the mother four times per year (known in some settings as “identity contact” a matter to which I will return), this is not specified in the proposed orders. Any conditions such as the imposition of supervision for so long as the Minister holds sole or shared parental responsibility for the child’s time with the mother, will be a cost borne by the Department.
It is unknown whether the mother’s participation in counselling (which is likely to be a precondition for the child spending time with her even if an order is not made in these terms) will involve any cost to her. It may be observed that the mother has received counselling for a lengthy period of time from a psychologist and this does not appear to be a service that she has been unable to afford.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Attitude to the child and responsibilities of parenthood demonstrated by each parent
Both parents are of Middle Eastern heritage and appear to have had a similar lifestyle and background in the sense that each came to Australia as a child of professional parents and in Australia pursued the traditions associated with their religious heritage. The parents met at a church which I understand to have been attended by their respective extended families and each parent speaks both English and a Middle Eastern language. The child has been raised in the traditions of his maternal and paternal family and I understand speaks some Middle Eastern language as well as English. The orders proposed by each of the parties will provide for the child to continue to enjoy the benefits of his culture and heritage.
Although it was identified by the expert that reports about the child’s presentation when he first attended at childcare indicated he had been deprived of opportunities to play, the expert records that the child appeared to have flourished in the six months he attended childcare when in his mother’s care. I understand that he has continued to attend at childcare or pre-school and there is no evidence of any recent matters of concern in relation to his development.
The expert was not challenged on her observations and opinion that when assessed the child presented as healthy and active, and well attached to his parents and extended family. As an only child he seemed to the expert to have been indulged and the expert observed his parents and extended family to be very attentive to him.
The expert observed that the child when assessed at the age of two and a half had delayed language and recommended that it would be helpful for the parents to be guided by a speech therapist on how to facilitate the child’s language development. It is recorded in the expert’s report that when assessed by a paediatrician in March 2020 the child’s development was age appropriate but at the assessment the paternal family described the child as having aggressive tantrums which the expert opined must be managed appropriately.
There were no concerns about the paternal family’s care of the child at the conclusion of the final hearing in circumstances where the Minister held parental responsibility for the child and the child’s progress with the father and paternal family was regularly monitored.
I have no doubt that each of the parents loves the child and believes that the parenting arrangement that they each propose is in the child’s best interests.
The father has a responsible and appropriate attitude towards the responsibilities of parenthood which is demonstrated in the manner in which he has cared for the child since July 2020.
Family violence relating to the child or a member of the child’s family
Inferences from family violence orders
The allegations of family violence made by the mother against the father have been considered at length earlier in these Reasons.
The father’s evidence concerning the mother’s conduct towards himself, some paternal family members and the child, particularly prior to the child’s removal, may also ground a finding that the mother is the perpetrator of family violence. The mother was also charged in relation to family violence offences arising from the events of February 2021 and has been found guilty of those offences, though no conviction has been recorded. No party to the proceedings seeks a finding in relation to the mother’s alleged family violence and I do not consider it necessary in the circumstances to turn my mind to this issue. There is substantial and consistent evidence about appropriate orders to protect the child from harm and in particular the risk of harm posed by the mother without any additional findings as to whether her conduct also amounts to family violence.
There have been a number of ADVOs made while these proceedings have been on foot. The most recent was an ADVO in place against the mother for the protection of the father which expired in March 2023. Given that that order was made with the consent of the mother without her making any admissions as to her conduct and that any other ADVO is effectively superseded by my findings in these proceedings, there are no particular relevant inferences that I draw from the making of orders of this nature.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
Although in my view the orders sought by the parties other than the mother are least likely to lead to the institution of further proceedings in relation to the child, this is not of itself a weighty matter where considerations such as the need to protect the child from harm and parental capacity assume such significance.
Any other relevant fact or circumstance
All of the parties other than the mother do not seek orders that delineate the child’s communication and time with the mother but rather leave these matters to the person who holds parental responsibility for the child in relation to these aspects of parental responsibility at the relevant time. This will be the Secretary of the Department solely, the Secretary of the Department and the father jointly and after the child is 16 years of age, the father solely if orders are made as these parties seek.
In my view, if the child continues to live with the father and he is to exercise sole parental responsibility in relation to all other matters it is appropriate for all matters relating to the child’s communication and time with the mother be as determined by the person who holds parental responsibility for the child in relation to those matters. Over the course of the proceedings, circumstances for the child have changed considerably, particularly as a result of the mother’s conduct, emotional dysregulation and reactivity, holding of unusual and increasingly bizarre beliefs, steps she has taken to obtain evidence in support of the same and ongoing concerning interactions with the child.
At the commencement of the proceedings orders were made that the child live with the mother on condition that she reside in the maternal grandmother’s home but when the mother did not comply with this condition and the matters just described became more pronounced, the Secretary assumed care of the child and placed him with the father. Initially the child spent regular time with the mother but as the proceedings progressed more concerns arose about her conduct. An additional opinion was then expressed by the expert relating to ongoing harm if the child were to continue to spend such regular time with the mother and the child’s time with the mother was reduced even further. When the final hearing was completed at the end of 2022 despite the significant reduction in the child’s time with the mother (or possibly because of this reduction) the mother’s conduct became even more concerning and regularity of that time was reduced even further.
As previously noted, no party in these proceedings seeks an order that the child have no time with the mother but the regularity of that time and the circumstances in which it is exercised including the need for supervision must be capable of being reduced or increased as necessary to respond to the needs of the child as circumstances evolve. Given the increasing concerns about the mother and the likelihood of such concerns continuing if she does not engage with a mental health professional to assist her in modifying her beliefs and behaviour such flexibility is necessary and in the child’s best interests.
Towards the end of the final hearing it had become apparent that all of the parties other than the mother contended that it was in the child’s best interests to spend only very limited time with the mother. Such an arrangement had not been contemplated earlier in the final hearing when the expert was cross-examined. In these circumstances a question was raised about whether there was a lacuna in the evidence about the rationale for and likely impact upon the child of such orders which in some settings (including previous child protection practice) are known as orders for “identity purposes”. However, the concept of “identity time” and its place in family law jurisprudence does not now arise in circumstances where none of the parties are seeking orders of this type. For the reasons just explained, each of the parties other than the mother now contend that a flexible arrangement in which the relevant party holding parental responsibility determines all matters related to the child’s time and communication with the mother is in the child’s best interests.
As touched upon earlier in these Reasons, all parties other than the mother seek an order requiring the mother to engage in “one on one therapy with a mental health professional who practices Dialectical Behaviour Therapy” and associated orders for continuation with that therapy and producing evidence if called upon as to compliance with such an order. The parties seeking this order identify that it is sought pursuant to s 64B(2)(i) which sets out that a parenting order may deal with matters including “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”.
The Full Court in Oberlin & Infeld[26] considered a range of orders made by a trial judge which included an order similar to the proposed orders of the parties, requiring a mother to undertake counselling and treatment from a qualified health professional. The Full Court in Oberlin held that this order was made without power and distinguished it from other orders which were linked with orders stipulating how and when the children were to spend time with the mother. The Full Court said this in relation to the order requiring that the mother receive such treatment and counselling at [51]:
…By contrast, Order 19 is a self-standing order, untethered from any particular parenting order. It is not itself a parenting order under s 64B(2) of the Act, in which case the only other conceivable source of power for it is s 67ZC of the Act, but the limits of the power reposing in s 67ZC are not entirely unconfined (L v T (1999) FLC 92-875 at [51] and [55]–[60]; Jacks & Samson (2008) FLC 93-387 at [200]–[203], [216], [219]–[222], [224] and [226]).
We endorse the serious reservations expressed there by the Full Court as to how self-standing orders directing a party to accept therapeutic treatment are not usually made conformably with s 67ZC of the Act. As the Full Court earlier observed in Jacks & Samson (at [226]), that would take “unique circumstances”, which we are satisfied are not present here. This ground therefore succeeds because Order 19 was made without power.
[26] [2021] FamCAFC 66 (“Oberlin”).
The order proposed by the ICL and the Secretary (adopted by the father) is similarly a stand- alone order and untethered from a parenting order and cannot be considered as a parenting order made pursuant to s 64B(2)(i) as proposed. In the ICL’s proposal a Notation dealing with the intention of the Secretary in relation to the child’s time with the mother records that it “shall be subject to” compliance with restraints and her engagement with counselling as set out in the proposed order. This intention is not stated in the same terms in the Notation of the Secretary where it is recorded that “the time, duration and location of the time shall take into consideration…counselling set out [in the proposed order]”. Of significance, neither of these proposals under consideration link the mother’s compliance with an order for therapy with an order for the child to spend time with or communicate with her and thus the proposed order cannot fall within the definition of a “parenting order”. In accordance with Oberlin and the cases cited therein such an order cannot be made as there is no power to do so.
Other observations made by the Full Court in relation to Notations are also relevant when considering the proposals of the parties other than the mother. In Oberlin the Full Court was also considering a Notation made by the trial judge in the orders appealed against and said in respect of that Notation at [44]:
One final comment should be made. Notation B made by the primary judge is meaningless. Notations are not orders. The judgment of the primary judge is embodied only in the orders (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64), which are explained in the reasons for judgment.
In my view, the observations in relation to Notations are equally applicable to the Notations under consideration. It is necessary in the circumstances of this case that a range of matters and in particular the conduct and presentation of the mother informs the discretion of the Secretary when determining the appropriate amount of time that the child should spend with the mother. In these circumstances, the Secretary’s recorded “intention” for that time to occur at least once every three months is subject to so many variables that it may be considered almost meaningless.
If the current intention of the Secretary is recorded in Final Orders as a Notation, a party, and in particular the mother, may interpret such a Notation as indistinguishable from an Order. Given that Notations are not orders and are effectively meaningless and as there is a real possibility that the Secretary’s intention may change over time, recording such Notations in orders is in my view unnecessary and potentially unhelpful. For this reason I do not propose to include such Notations in the Final Orders.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[27] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of the child must be made jointly, unless the Court provides otherwise.
[27] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In circumstances where I have found that the mother engaged in abuse of the child, the presumption of equal shared parental responsibility does not apply. In any event, the parents’ relationship is described by the expert as one which “never developed into a functional, cooperative, mutually trusting relationship” and both extended families have been clearly involved in the ongoing animosity between the parties which has contributed to the parental ill feeling. The mother’s allegations against the father have escalated in time and there is no evidence at all that the parties have the capacity to make any major decisions for the long term care and welfare of the child jointly. The state of the parents’ poor communication and absence of any capacity for joint decision making is so extreme in this case that for the reasons previously given it is not in the child’s best interests for the father to hold parental responsibility for determining all matters related to the child’s time with and communication with the mother even if he is to be allocated sole parental responsibility for all other matters.

Given the history of decision making with respect to the child including his removal from the mother in entirely justifiable circumstances in July 2020, I am easily satisfied that the only proper order with respect to the parental responsibility for the child is the order proposed by the parties other than the mother.
Other parenting orders
For all of the reasons given and attaching particular weight to certain best interests considerations, I am easily satisfied that it is in the child’s best interests that the balance of the orders sought by the Secretary (adopted by the father with some slight variations) are proper and in the child’s best interests. Although the orders sought by the Secretary are in very similar terms to those sought by the ICL where there are differences, I prefer the orders proposed by the Secretary to those proposed by the ICL for the reasons advanced by the Secretary in his final submissions.
As noted, the Secretary seeks that the Minister holds sole parental responsibility with respect to the child’s time and communication with the mother and maternal family members until the child attains the age of 12 and from 12 until the child attains the age of 16 this is to be held equally between the Minister and the father. All parties other than the mother propose that from the time the child is aged 16 all aspects of parental responsibility be held by the father alone.
In relation to this issue, the father adopts the orders of the ICL in which it is proposed that the Minister hold sole parental responsibility for the child until the child attains the age of 14. I agree with the submission made by the Secretary that the Minister holding sole parental responsibility until the child is 14 rather than 12 does not provide any benefit to the child. It is proposed by the Secretary that if the Minister and father agree that supervision of the child’s time with the mother (when the child is aged between 12 and 16) is necessary, the Department will provide that supervision. It is also noted that it is the Secretary’s intention to work with the father during this time to enable him to independently manage the child’s time with the mother following the child attaining 16 years and beginning this period earlier, as sought by the Secretary, allows more time for the father’s capacity in this regard to develop.
I am also satisfied that the injunctions pursuant to s 68B of the Act sought by the Secretary and in similar terms by the ICL are appropriate for the welfare and personal protection of the child.
In his final proposal the Secretary seeks orders that in January and July each year, the father is to provide to the mother by email a redacted copy of the child’s most recent school report as well as a general summary of the child’s health and that the father is to inform the mother as soon as possible of any serious medical emergency or medical condition with which the child is diagnosed. In his written submissions the father does not oppose the provision of such information to the mother but proposes that it be provided to the mother by the Secretary rather than the father. I consider that an order requiring the father to provide information to the mother is unnecessarily burdensome on the father and does not benefit the child in circumstances where the mother is to have a limited role in the child’s life.
I am not satisfied that it is necessary or appropriate to make an order as sought by the ICL that until the child attains the age of 16 the father is to permit the Department to conduct home visits at the home where he is residing with the child or where the child spends time. I consider such order unnecessary in circumstances where the father poses no risk to the child and has been assessed by the Department as “safe”. Such order is also not necessary in circumstances where the Department have relevant powers pursuant to state legislation to allow for necessary casework and home visits.
The ICL also seeks orders that the father facilitate the child’s attendance upon a speech therapist, optometrist, dentist, general practitioner for medical reviews and any other professional to whom the child may be referred from time to time. I consider such order unnecessary when it is proposed that an order be made that the father hold sole parental responsibility for the child in all aspects except for the child’s time with the mother and consequently it is the father’s role to engage with medical practitioners as necessary when exercising his sole parental responsibility. The father has demonstrated an ability to engage with such professionals appropriately including when referred to such services by the Department and there is nothing to suggest he will not continue to do so in the future. Similarly, the ICL seeks an order that the father arrange a referral for the child to a child psychologist and to facilitate the child’s attendance upon that psychologist. It was not a recommendation of the expert that the child engage with a psychologist. The child has previously engaged with a Departmental psychologist and it is anticipated that if the need arises for the child to engage with a psychologist in the future the father will seek such support for the child.
The ICL seeks orders that the father enrol in individual counselling with a named provider for the purpose of addressing anger and family violence issues. Such proposal is inappropriate in circumstances where I have found that the father has not been the perpetrator of family violence.
It is also the ICL’s proposal that the father himself engage with a psychologist. As discussed, the Court does not have the power to make a stand-alone order for a parent to engage in therapy when parentings orders are not contingent upon the fulfilment of this condition. Although it may be accepted that parenting, especially in the circumstances of this case, cause stress for a parent, there is no evidence that the father requires psychological assistance and it was not a recommendation of the expert. The ICL also proposes that the father undertake any course and engage with any service as recommended by the Secretary. This too is a stand-alone order which cannot be characterised as a parenting order. The father has shown that he has a responsible and appropriate attitude towards parenthood and it is anticipated that he will engage with services and courses in the future as appropriate without an order of the Court requiring him to do so.
For all of the foregoing reasons I make the orders as set out at the forefront of this Judgment.

I certify that the preceding five hundred and nine (509) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 24 May 2023

File number(s):	PAC 591 of 2019
Judgment of:	HANNAM J
Date of judgment:	24 May 2023
Catchwords:	FAMILY LAW – FINAL PARENTING – Where the Department of Communities & Justice have intervened in the proceedings – Where the mother contends that the father has perpetrated family violence – Where the mother contends that the father has sexually and physically abused the child – Where the child was removed from the mother’s care by the Department of Communities & Justice – Where each of the other parties contend that the mother poses an unacceptable risk of harm to the child on the basis of physical and psychological abuse – Where there are serious concerns for the mother’s mental health – Orders made as sought by the Secretary – Where the child is to live with the father – Where the father is to have sole parental responsibility for the child except in relation to his time and communication with the mother – Where the Minister for Families and Communities is to have sole parental responsibility in relation to the child’s time and communication with the mother – Where after a certain period the father is to share parental responsibility with the Minister in relation to the child’s time and communication with the mother before – Where after a further period the father is to have sole parental responsibility in relation to the child’s time and communication with the mother.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65D.
Cases cited:	Amador & Amador [2021] FamCAFC 66 G & C [2006] FamCA 994 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 M & M (1988) 166 CLR 69 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Oberlin & Infeld [2021] FamCAFC 66
Division:	Division 1 First Instance
Number of paragraphs:	509
Date of last submissions:	19 December 2022
Date of hearing:	14 – 18 March 2022; 27 – 28 June 2022; 8-9 September 2022; 23 September 2022; 19 December 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Mando and subsequently Litigant in Person (from 28 June 2022)
Solicitor for the Applicant:	Safi Legal (until 28 June 2022)
Counsel for the Respondent:	Mr Sperling
Solicitor for the Respondent:	Metta Legal
Counsel for the Intervener:	Mr Havenstein
Solicitor for the Intervener:	Crown Solicitors Office
Counsel for the Independent Children's Lawyer:	Mr Blank
Solicitor for the Independent Children's Lawyer:	Legal Aid Nsw Campbelltown Family Law

PAC 591 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS SHALHOUB Applicant
AND:	MR MORCOS Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE Intervener INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	24 may 2023