Shelburn & Beazley - [2023] FedCFamC2F 1163

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shelburn & Beazley [2023] FedCFamC2F 1163

File number(s): HBC 1011 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 6 September 2023

Catchwords:
FAMILY LAW – parenting – parental responsibility – where presumption of equal shared parental responsibility rebutted – where history of poor communication between parties – order that the father have sole parental responsibility.

FAMILY LAW – parenting – with whom the child lives – where allegations that the child has been sexually abused in the care of the father and that the father neglects her medical needs – no finding of sexual abuse made – where allegation that the mother’s parenting style poses unacceptable risk to the child in respect of her mental health – orders that child live with the father and spend supervised time with the mother for a period before graduated progression to child living equally with both parents

Legislation: Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 60B(1), 60CA, 60CC(2), 60CC(3), 60CC(3)(d), 61B, 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(3), 65DAC

Cases cited:
Aldridge & Keaton (2009) FLC 93-421

Dieter & Dieter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Isles & Nellisen [2022] FedCFamC1A 97

Marvel & Marvel [2010] FamCAFC 101

MRR & GR [2010] HCA 4

Slater & Light [2011] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 252

Date of hearing: 22 – 25 May 2023

Place: Hobart

For the Applicant: In person

Solicitor for the Respondent: Ms Watson, Tasmania Legal Aid

Counsel for the Independent Children’s Lawyer Mrs Mooney SC, Mr Royston assisting
ORDERS

HBC 1011 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SHELBURN

Applicant

AND:
MR BEAZLEY

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

6 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Respondent Father MR BEAZLEY (“the Father”) have sole parental responsibility for the child, X born in 2015 (“the child”), subject to the following:
(a)The Father shall notify the Applicant Mother MS SHELBURN (“the Mother”) of any major-long term decisions to be made concerning the child not less than four (4) weeks prior to such decision to be made and the Mother may express a view about that decision by written communication to the Father; and
(b)The Father must give Mother’s expressed view bona fide consideration when making such decision, but will not be not be bound by it.

3.For a period 6 September 2023 to 29 September 2023:
(a)The child live with the Father, from the conclusion of school on Wednesday 6 September 2023; and
(b)The child spend supervised time with the Mother at the J Contact Centre for two (2) hours every weekend commencing 9 September 2023, subject to availability, and additional time if agreed and can be facilitated by the J Contact Centre; and
(c)The Mother is restrained from approaching the child and attending the school to seek to communicate or engage with her.

4.From 29 September 2023 to 2 October 2023:
(a)The child live with the Father; and
(b)The child spend time with the Mother from after school on Friday 29 September 2023 until 3:00pm Monday 2 October 2023.

5.Following the expiration of the period referred to in Orders 3 and 4 of these Orders, the child live with the Father and Mother on a week on and week off basis, being:
(a)With the Father in the week commencing 2 October 2023, and each alternate week thereafter;
(b)With the Mother in the week commencing 9 October 2023, and each alternate week thereafter; and
(c)With changeovers of care to occur at H School on Mondays at the commencement of school or 3:00pm on a non-school day.

Special occasions
6.For special occasions, the child’s usual time with the parties be suspended and the following orders apply:
(a)For Christmas 2023, and each alternate year thereafter:
(i)With the Mother from 2:30pm on 24 December until 2:30pm on Christmas Day,
(ii)With the Father from 2:30pm on Christmas Day until 2:30pm on 26 December.

(b)For Christmas 2024, and each alternate year thereafter:
(i)With the Father from 2:30pm on 24 December until 2:30pm on Christmas Day,
(ii)With the Mother from 2:30pm on Christmas Day until 2:30pm on 26 December.

(c)For Mother’s and Father’s Day:
(i)In the event the child is not with the Mother on Mother’s Day each year, with the Mother from 5:00pm the Saturday prior until 5:00pm that day;
(ii)In the event the child is not with the Father on Father’s Day each year, with the Father from 5:00pm on the Saturday prior until 5:00pm that day.

Parenting Courses and other protections relating to the Father
7.The Father must register/enrol in the free online Triple P Parenting Program parenting course within fourteen (14) days of this order and complete such course within three (3) months of the date of these Orders.
8.Within seven (7) days of completion of the parenting course ordered in Order 6 of these Orders, the Father is to provide a copy of the completion certificate to the Independent Children’s Lawyer by email.
9.The Father must within 14 days seek a referral from Child Safety Services to the K Family Services and thereafter engage with the K Family Services if they are able and willing to provide him with support services.
10.The Father must ensure that Mr L does not reside at the home he occupies with the child and is required to immediately ensure he no longer sleeps in the bedroom occupied by the child.
11.The Father is to arrange for Mr L to enter into a written undertaking consistent with the evidence he gave and referred to at [107] of the Reasons for Judgment and must file the same within seven (7) days of these orders.

Section 68B Injunctions
12.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from allowing any adult to sleep in the same bedroom as the child while the child is in their care; save that the Mother may share the same bedroom with the child.
13.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from denigrating or speaking negatively about the other party or their extended family within the child’s hearing, or allowing the child to remain in the presence of any third party who is doing so.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN and the Father MR BEAZLEY are restrained by injunction from discussing parenting issues and these proceedings, orders or parenting arrangements in the presence or hearing of the child, or allowing the child to remain in the presence of any third party who is doing so.
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from allowing any adult to assist the child with personal hygiene and bathing/showering while the child in his care, unless the child requests assistance.
16.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from allowing any person other than himself to apply eczema creams or administer other treatment for the child’s personal care while the child in his care.
17.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Father MR BEAZLEY is restrained by injunction from physically punishing or disciplining the child while the child in his care, and from allowing any other person to do so.
18.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X born in 2015 (“the child”), the Mother MS SHELBURN is restrained by injunction from bringing the child into contact or communicating with Mr M.

AND THE COURT NOTES THAT:
A.Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 12 to 18 have been breached.

Other Orders
19.Both parties are restrained from relocating the child’s residence while in their care outside 40km from the child’s school, without written consent of the other party
20.The Father is restrained from enrolling the child in a primary school other than H School, without the written consent of the Mother.
21.Both parties are restrained from changing the child’s treating general practice from N Medical Centre at O Street in Suburb P, without the written consent of the other party.
22.The parties are restrained from undertaking a physical inspection of the child contemporaneously with the return of her from the other party’s care and taking any photographs of alleged injuries or bruises they perceive on the child that they allege that were sustained in the other party’s care.
23.The parties are to communicate (in respect of the child) via a parenting app, save and except for in the event of emergency and in the event of emergency concerning the child, the parties shall telephone the other party to notify them as to the emergency, as soon as practicable.
24.Within seven (7) days of any change to the parties’ residential addresses, email addresses or mobile telephone numbers, the party will inform the other party in writing of the new details.
25.This Order acts as an authority to all health and medical professionals who treat the child from time to time to provide both the Mother and the Father with all information and documentation sought by them in relation to the child’s welfare and medical treatment from time to time, including but not limited to copies of all reports, referrals, records and documents pertaining to the child (at each party’s own cost).
26.This Order acts as an authority to all schools attended by the child from time to time, to provide to each of them all information and documentation sought by them in relation to the child’s welfare, progress and activities at school (or day care) from time to time, including but not limited to providing the parties with copies of school newsletters and other notes/letters to the parties, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school/day care photos and certificates and awards obtained by the child (at each party’s own cost).
27.The Mother must continue to engage with her psychological support professionals and follow their reasonable recommendations.
28.Subject to a grant of legal aid, the appointment of the Independent Children’s Lawyer is to extend for a period of three (3) months from the date of these Orders.
29.The Independent Children’s Lawyer make arrangements with Dr Q, so to explain these orders to the child as soon as possible and prior to the Mother spending time with the child pursuant to Order 3 of these orders.

Copies of Orders
30.Leave is granted to the parties to provide a copy of these Orders to the child’s school, J Contact Centre, general practitioner, any hospital or treating health or medical practitioner of the child, psychologist, or any allied health professional with whom the child is engaged.

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
Judge Taglieri

The parties to these proceedings are the Applicant Mother Ms Shelburn (“the Mother”) and Respondent Father Mr Beazley (“the Father”), who are the parents of a child X born in 2015 (“the child”). The Mother filed an Initiating Application on 13 October 2020 seeking parenting orders in respect of the child.
BACKGROUND
Previous final parenting orders were made 30 April 2019 (“the 2019 orders”) which provided that the parties have equal shared parental responsibility for the child, that the child live with the Mother, and spend increasing time with the Father culminating in two nights a fortnight in 2021. The 2019 orders were made by consent of the parties.
ISSUES IN DISPUTE
The matters for determination by the Court are:
·Which parent should have sole parental responsibility for the child in the context that neither seek joint parental responsibility and in the past they have been unable to jointly make decisions;
·With which parent the child lives; and
·What time the child should spend with the parent with whom she does not live, and whether that time should be supervised.
The questions which inform these decisions are crystallised by the parties Case Outlines and are:
·Whether the Mother has an obsessional or excessive preoccupation with the Father’s parenting such that she poses an unacceptable risk to the child, either in the child developing her own mental and emotional issues as a result or in cutting her off from the Father and extended paternal family; and
·Whether the Father is an unacceptable risk to the child through neglect and poor parenting, especially in regards of treatment for medical conditions or exposing her to risk of sexual abuse.
THE MOTHER’S CASE
At the hearing, the Mother confirmed that the orders sought are set out in the Amended Application for Final Orders filed 6 September 2022. She seeks sole parental responsibility, that the child live with her, and that the child spend professionally supervised time with the Father.
The Mother relied on:
(a)Her affidavit filed 8 May 2023;
(b)The affidavit of Ms G (“the maternal grandmother”) filed 8 May 2023;
(c)The affidavit of Mr R filed 8 May 2023; and
(d)Her Case Outline filed 22 May 2023.
The Mother also tendered into evidence the following documents:
·Exhibit M-1: Case note of a phone discussion between the ICL and Ms S from the T Support Service;
·Exhibit M-2: Case notes of Ms U from T Support Service (“Ms U”) dated February 2022;
·Exhibit M-3: Case notes of Ms U dated January 2022 recording a conversation with the Father;
·Exhibit M-4: Notes of attendance of the child on Ms U on February 2022;
·Exhibit M-5: Letter of Support from Ms V of W Support Service dated May 2023;
·Exhibit M-6: Letter authored by Dr Y of N Medical Centre (“Dr Y”) dated 18 August 2021;
·Exhibit M-7: Letter authored by Dr Y regarding the child dated 6 August 2021;
·Exhibit M-8: Letter authored by Mr Z of AA Psychology (“Mr Z”) dated 6 November 2020;
·Exhibit M-9: Two draft, unsigned Parenting Plans dated 30 March 2016 and July 2017;
·Exhibit M-10: A record created by the Mother concerning missed and cancelled visits and catch up visits;
·Exhibit M-11: Affidavit of the maternal grandmother filed 8 May 2023;
·Exhibit M-12: Affidavit of Mr R filed 8 May 2023;
In addition, the Mother was granted leave at the conclusion of the hearing to file and serve further limited written submissions. Her further submissions were filed on 26 May 2023 and have been considered.
The Mother’s Evidence
There was no issue before the Court about the Mother’s capacity to care for the child on a day‑to-day basis and meet her physical needs.
The challenge to the Mother’s case focussed on an allegation that the Mother presented a serious risk to the child’s emotional well-being based on:
·Alienating her from the Father and depriving a meaningful relationship between them, especially by demonstrating complete absence of insight about what reasonable protective behaviour involved;
·Presenting an obsessive and false narrative about the child being sexually abused in the Father’s household, likely negatively impacting on the child’s relationship with her Father; and
·Over-protective behaviour about common childhood medical conditions.
The ICL’s cross-examination focussed on the alleged duplicity on the Mother’s part by, on the one hand, promoting false claims of the child’s sexual abuse in the Father’s care, while, on the other hand, maintaining a relationship with her new partner, who has been convicted of persistent family violence which included counts of sexual offences. It was put that this demonstrated complete lack of insight about reasonable protection of the child from risks of harm, or deliberate conduct to alienate the child from her biological father, for the Mother’s own personal wants and needs.
The ICL put to the Mother that she had suggested to the Father’s previous partner Ms E that she could stop the Father seeing their child by making allegations of sexual abuse. The Mother stated that she had exchanged a message about this, but denied that she was doing what she referred to in her communication with Ms E.
The Mother stated she had been in a relationship with her new partner “Mr BB” from 2019 until recently. She maintained that Mr BB had not behaved towards her or the child in the manner he had pleaded guilty to in his relationship with his former partner “Ms CC”. She admitted she had been privy to the indictable charges since 2020 and had attended court hearings, including when he was convicted of persistent family violence and sentenced for the same. She agreed that she had heard the Comments on Passing Sentence given by the judge in court. Despite this, she maintained that Mr BB did not pose a risk of harm to her or the child because of family violence.
The Mother refused to accept the vast quantity of independent and objective medical evidence put to her by the ICL about there being innocent and medically explained reasons for the child presenting with vaginal irritation, eczema flares, bruising and distressing nightmares. This was despite having had the benefit of reading the evidence[1] of Dr DD and hearing her give evidence.
[1] Exhibit ICL-12, Exhibit ICL-13, and Exhibit ICL-14.
The ICL put to the Mother by reference to the T Support Service, Child Safety Services (“CSS”), Police and medical records that she had effectively engaged in a concerted campaign to alienate the Father by creating a belief that the child was being sexually abused by a person in the Father’s household. The Mother denied this and continuously maintained that she had been acting and reporting reasonably and protectively. She stated that she believed what the child has reported. She specifically stated that she did not believe that the Father himself had assaulted the child, but that it had occurred in his home.

The Mother conceded that her attitude to the child spending no time or supervised time with the Father, meant that she would not maintain a relationship with her half-brother D (“the half-brother”). Despite this, she sought to justify this by claiming that she had attempted to make arrangements with Ms E.
The Mother also stated that she sought orders that the child not spend time with the Father and that she saw a problem with supervised time because it could not continue in that way forever and it would lead to unsupervised time.
The Mother denied that she constantly questioned the child about matters in the Father’s household. She maintained that she only spoke about these if the child raised concerns and she disputed that the child told her what she wanted to hear.
The ICL put to the Mother that she had deliberately chosen to conceal that she was in a relationship with Mr BB because she knew it would not bode well for her in these proceedings. The Mother denied this and claimed she had received legal advice that she could not disclose the information about Mr BB and the charges pending before a court. She stated that she had not taken legal advice from a family law lawyer, but from Mr BB’s criminal lawyer.
The Mother admitted that she had not severed her relationship with Mr BB until very recently, and that the child had spoken to him on two occasions since his imprisonment. She also agreed that she remained involved in Mr BB’s affairs, staying at his property and tending animals.
After admitting that she had not ever stated or disclosed that the child spent time with Mr BB, a person convicted of persistent family violence and heinous acts against his former partner in the presence of children, the Mother stated “I didn’t feel it was relevant”.
I enquired whether the legal advice she obtained regarding disclosing information about Mr BB’s criminal matters was for the purpose of these proceedings. She said it was not.
Counsel for the ICL cross-examined the Mother about her attitude to the child spending time with the Father in the past, and it was suggested that she had controlled and limited their time for her own convenience and wants. The Mother denied this and stated she “didn’t like how plans and agreements were broken”. She agreed that it was difficult to organise time around the Father’s work roster, and that she insisted the child meet her half-brother in the hospital’s family room rather than in Ms E’s room on a “locked maternity ward”.
The Father’s Counsel also cross-examined the Mother about similar themes. It is unnecessary to repeat the evidence the Mother gave in response as it was consistent with that given under cross-examination by the ICL. It conveyed a self-serving and intentional attitude on the Mother’s part to the evidence she chose to put before the Court. She claimed it had not been intentional to exclude reference to Mr BB’s crimes, defensively stated that nobody had asked, and said that the Father knew because he monitored her Facebook activity.
It was put to the Mother that she deliberately altered her Facebook posts after Ms U, from T Support Service filed her affidavit, but she claimed that there was an auto-timer for photos and she did not change them manually or intentionally at that time.
Asked if the Mother believed that Mr BB’s former partner’s credibility fell short, she stated “yes”. She also admitted that she had written accusations that the former partner of Mr BB was trying to “ruin [their] lives” and deprive Mr BB of a “healthy relationship”, but denied that she was referring to herself and Mr BB as that “healthy relationship”.
The Mother admitted she had not disclosed to the Father that the child was spending time with Mr BB, who was charged with “very serious offences relating to family violence and violent assaults/rape”.
The tenor of lengthy cross-examination by Counsel for the Father was that the Mother sought to control how and when the Father saw the child from an early time and that she has been persistently oppositional to the Father spending significant time with the child. While the Mother denied this, she broadly agreed with the factual accuracy of the timing and nature of allegations she made to trigger suspension or restriction of time by supervision, while agreeing that CSS concluded there was no risk to the child in 2018.
The Mother said she disagreed with Dr Q’s view that she had an obsessive and disproportionate attitude to the level of threat the child has in the Father’s care. She also denied that once the Father’s time with the child progressed to overnight and unsupervised, she made more allegations about physical neglect and renewed the allegations about sexual abuse throughout 2021 and 2022.
The Mother was taken through all the records from T Support Service, EE Hospital and the child’s general practitioner, which were said to disclose a “litany of complaints” about the child’s health and implied the child was being harmed in the Father’s care.
It was put to the Mother that, in most instances, there was no legitimate basis to her concerns for the child. The Mother did not accept that to be the case. Concerning Exhibit F-15, it was put to the Mother that the doctors at the hospital stated that the child could have scratched herself with a fingernail, and the Mother agreed that she instead formed the view that the child had been sexually abused.
Finally, it was put to the Mother that she will always believe the child has been sexually abused, despite the objective views of the experts. The Mother replied that she will be listening to the child.
The Mother agreed that the child enjoys spending time with the Father and misses her half‑brother. Although the Mother agreed that the child had been taught to use protective signals during supervised contact with the Father and that she had not used them,[2] she argued that they had not been properly observed at the J Contact Centre.
[2] Tender Bundle 1 on page 398.
The Mother denied that she had failed to facilitate time with the paternal family for the child’s entire life.
Responding to criticism about the number of times she had taken the child to doctors in respect of various complaints, the Mother stated that she had been advised in 2020 or 2021 to do so. She also stated that she had been advised by medical experts that normal presentation at a physical examination did not exclude sexual abuse.
Finally, the Mother tendered Exhibit M-10 as a record she had made of the visits the child had had with the Father, which she purported demonstrated that there were often missed or cancelled times due to the Father’s convenience, and that he was consistently late.
The Maternal Grandmother
The maternal grandmother’s affidavit filed 8 May 2023 had been filed with the pages out of order, so she confirmed that it totalled 47 consecutively-numbered paragraphs. The affidavit was read into evidence without objection.
When the Independent Children’s Lawyer put to the maternal grandmother that her affidavit contained “nothing good”, she responded indirectly by stating the she was just reporting what the child had told her. When pressed that this was all negative, the maternal grandmother agreed and then added that sometimes the child would say that the Father played with her.
When asked about the child’s disclosures to her about “the monster” in her bedroom at the Father’s house, the maternal grandmother’s said it was quite regular for the child to talk about the monster during periods when she was spending time with the Father. She confirmed that the child only claimed once to have been touched by the monster beneath her underpants. Except for the detail about the underpants, the maternal grandmother said that the child’s story has not changed, and that when the child talks to her about the monster she tries not to make a “big drama” out of it. However, then added that the child has said that if she discloses the monster’s identity then she will never get to see her half-brother again.
When it was put directly to her that she does not like the Father, the maternal grandmother agreed. She added that her opinion is that he can and has in the past been a “good dad”, but despite trying hard he had “slid backwards” over the child’s life.
She rejected that the Mother is fixated on the child’s safety, rather that the Mother is just trying to protect the child and spends a good deal of time thinking about it. She confirmed that she can support the Mother if the Court orders a change of residence to the Father’s care.
The maternal grandmother stated she had no concerns about the Mother spending time with Mr BB as she had got to know him over the course of four and a half years.
Under cross examination by Counsel for the Father, the maternal grandmother gave evidence that Mr BB had stayed in the Mother’s bedroom with the child present, and that she was aware that the Mother spent most weekends at Mr BB’s house.
When asked whether she believed that the child had been sexually assaulted, she said that she believed something had happened to the child, but is not sure of the details. She stated that she can only go by what the child has told her, and that she believes the child when she says that someone touched her on her vagina. She agreed this has been her belief for a number of years. When asked what it would take to change this belief, she gave a lengthy answer, the essence of which was that “lots of services” would need to be involved and that the Father would need to be more protective of the child.
In re-examination, the maternal grandmother confirmed that the child never raised any concerns with her about Mr BB.
Mr R
Mr R’s affidavit filed 8 May 2023 was read into evidence unopposed despite irregularities in form.
His evidence was that he is a good friend of the Mother, and that his son is friends with the child. He has no concerns for the child in the care of the Mother or previously in the care of Mr BB, but does have concerns for her in the care of the Father. He maintained this when presented with the positive contents of the J Contact Centre supervision reports.
When questioned by Junior Counsel assisting the ICL, he confirmed that he was aware of the convictions of Mr BB. When asked by me to clarify when he became aware, he stated a few months ago and had known before that time that Mr BB was facing charges, but was unsure of the details.
He stated that he completed his affidavit himself without consulting the Mother, and that while the Mother was aware that he was going to make notifications to CSS concerning the child, he did not discuss with her what he was going to report to them.
Counsel for the Father tested Mr R’s evidence about the disclosures the child had made to him as recorded in his affidavit, but he maintained his evidence. Additionally, he stated that the child told him that she had seen the monster’s face, which had hair on it, but that she will not say who it is. He could not provide dates for the specific disclosures referred to in his affidavit.
He agreed that he had not seen the Father hurt, hit or sexually abuse the child. When asked if he believes that the Father has sexually assaulted the child, he replied that he believes that someone in the Father’s household has done so and that the Father is aware of it.
THE FATHER’S CASE
The Father seeks final orders as set out in his Amended Response filed 20 September 2022, being that:
(e)he have sole responsibility for the child and that the child live with him; and
(f)the child spend professionally supervised time with Mother or, in the alternative, unsupervised on alternate weekends.
He relied on:
(a)His affidavit filed 8 May 2023;
(b)His affidavit filed 18 May 2023
(c)Affidavit of Ms E filed 8 May 2023;
(d)Affidavit of Mr L filed 8 May 2023;
(e)Affidavit of Mr FF (“the paternal uncle”) filed 8 May 2023;
(f)Affidavit of Mr GG (“the paternal grandfather”) filed 8 May 2023;
(g)Affidavit of Dr Q filed 15 April 2019;
(h)Affidavit of Dr Q filed 4 April 2022;
(i)Affidavit of Dr Q filed 15 December 2022;
(j)Affidavit of Dr Q filed 10 April 2023;
(k)Affidavit of Ms U filed 8 May 2023; and
(l)His Case Outline filed 20 May 2023.
The Father tendered into evidence the following documents:
·Exhibit F-1: Case notes of Dr DD dated 17 August 2021;
·Exhibit F-2: File note of T Support Service dated August 2020;
·Exhibit F-3: Letter authored by Ms U on 26 June 2022 summarising her session with the child;
·Exhibit F-4: Case note of Ms U;
·Exhibit F-5: Mr M’s Court judgment;
·Exhibit F-6: Screenshots of the Facebook profile of the Mother;
·Exhibit F-7: Unredacted version of document tendered as Exhibit ICL-17;
·Exhibit F-8: CSS record dated May 2020;
·Exhibit F-9: CSS record concerning various incident notifications;
·Exhibit F-10: Medical progress notes of the child dated 16 April 2022 and 22 April 2020 and 23 June 2023;
·Exhibit F-11: Tasmania Police Disclosure Report, report late 2020 for occurrence mid-2020;
·Exhibit F-12: CSS case note dated October 2020;
·Exhibit F-13: EE Hospital Paediatric Sexual Abuse Service report dated January 2021;
·Exhibit F-14: Medical progress notes dated March;
·Exhibit F-15: CSS record dated October 2022;
·Exhibit F-16: J Children’s Contact Service (“J Contact Centre”) notes dated 1 March 2023 to 16 April 2023; and
·Exhibit F-17: Report of Dr HH dated 2 September 2022.
Evidence of the Father
The issues raised against the Father are that the child is at risk of harm from:
·Sexual abuse perpetrated by a member of his household if she spends time in his unsupervised care;
·Neglect in his care due to the Father not adhering to the child’s dietary restrictions and failing to seek treatment for her medical conditions; and
·The Father using physical discipline on the child.
The ICL cross-examined the Father on a variety of subjects relating to the above alleged risks. He acknowledged that, in line with the report of Dr Q, he needed to “step up” his parenting skills and improve his parenting capacity, although he has had limited opportunity to do so recently because of the interim orders that provide for his time with the child to be supervised.
The Father admitted that he has smacked the child and the half-brother in the past, but denied that he has ever “hit” them. He has not smacked the child since allegations were raised in these proceedings and since he found out it was scaring her. He denied that he smacked the child when she reported to him that she was missing the Mother while in his care, or for being upset.
The Father agreed that communication between he and the Mother is poor, and that recently he has not responded to her messages or only given brief responses. He explained that he finds the frequency and tone of communication difficult, especially regarding complaints about his parenting.
He acknowledged that deodorant it is a trigger for the child’s eczema, but denied that he sprayed it on her. He stated that he puts it on his own clothes, because of cigarette smell and some may transfer to the child when she hugged him. About eczema triggers, he said that he tries to avoid foods or household items known to cause flare ups in the child’s condition. By way of example, he said he ensures he has bottled water available as tap water can be an issue.
The Father agreed that allowing Mr L to remain living at his house was not child-focussed. But, would not concede that he prioritised Mr L’s needs over those of the child, explaining that he had not been present overnight while the child was in the Father’s care. The Father accepted that Mr L’s presence in the Father’s home has caused concern for the Mother. The Father admitted that Mr L is present overnight when the child’s half-brother stays, and sometimes they sleep in the same room.
In respect of members of the paternal family, the Father’s evidence was that:
(a)The paternal grandfather lives in the Father’s household and does not have a drinking problem;
(b)The paternal grandmother does not come to the Father’s home due to tensions with the paternal grandfather. She has not recently spent time with the child, which is difficult for the child;
(c)The child spends time with her cousins when family functions fall within time she is spending with him, but there is an age difference between the cousins and the child; and
(d)The Father is not close to his siblings, his older brother because he is addicted to drugs and his sister because they had a “falling out”.
The Father admitted that he has had problems in the past with alcohol use and his mental health. He has engaged with a clinical psychologist to address this. He also admitted suicide threats and attempts, including one following the child’s birth. His psychological care has had a focus on alcohol use when “things are not going well”, such as following the death of his brother which led to relapse for a few days. He stated that he no longer drinks in a problematic way.
When referred to the J Contact Centre records, he agreed that they reported positively on the time the child spent with him. The reasoning he gave for not arranging the half-brother to spend time with the child at the J Contact Centre was that he and Ms E did not want the half-brother to remember his sister in the context of professionally supervised time. I enquired as to whether the children would experience it as just another play environment, with which he agreed and conceded he had not considered it in that way.
(a)As to the child’s presentation in his care and allegations of the “monster”, the Father stated in summary that:
(b)The child had the occasional nightmare when in his care overnight, and he would comfort her until she fell back asleep;
(c)The descriptions in the affidavits of the maternal grandmother and Mr R as being scared and frightened do not accord with his experiences of her in his care;
(d)The child’s disclosures to Mr R of the monster “only liking little girls” did not alarm the Father as he did not think that the monster was a person in his household, but it did upset him;
(e)He asked the child about the monster on one occasion as she had not mentioned it to him. The child gave short answers and had a quiet demeanour, and when the conversation had finished she resumed playing; and
(f)Following the child’s disclosures regarding the monster, the Father became more cautious while she was in his care. He stayed up after the child went to bed to ensure that she was fully asleep and not having nightmares.
The Mother cross-examined the Father about a variety of topics. The questioning was at times unfocussed and wide-ranging. It was necessary to redirect the Mother to the issues that would assist the court determine the competing cases. This being the case, these reasons address relevant considerations and topics.
The Mother took the Father to a message sent by the Mother to him in a parenting app on 3 July 2023 about the child reporting to the Mother that he had hit the half-brother. He denied that he had hit the half-brother, although in response to a question by me he conceded that he did not deny it at the time in his reply message. He said that the half-brother would often get upset after toileting accidents as he believed he had “done something wrong”, and would scream and cry.
He gave somewhat confusing evidence about ‘smacking’ the children by clapping his hands over theirs, so as to make a noise but not touch them, as a form of discipline. His evidence was that he sought advice on this from the paternal grandfather, and that he did not class it as physical discipline as it was not done to hurt them. I asked whether this would likely invoke negative emotions in the children and/or scare them, and he reluctantly conceded this.

When challenged about his adherence to a list of foods and household items which are either safe for the child’s eczema or trigger it, the Father maintained that he follows it to the best of his ability.
The Father maintained that it was unreasonable for the Mother to photograph the child before and after her being in his care to document injuries and medical conditions as it could make the child feel unsafe with him. He defended taking photographs himself for the same purpose, stating that he was “paranoid” that the Mother would find something “wrong” upon the child’s return to her care.
When asked if the Mother facilitated the child spending time with the paternal family, the Father replied “in a way, yes”. However, he stated that the Mother was controlling and obstructive of the time spent.
The Father agreed that:
(a)The Mother has made most of the decisions concerning the child, although he has had opportunity to take part;
(b)Shared decision making does not work well as they do not trust each other and communicate poorly. He also agreed that there will always be tension between them, and this is unlikely to improve;
(c)The child loves the Mother and has a meaningful relationship with her and members of the maternal family;
(d)The connection with the Mother and the maternal family would be lost if the child moved into the Father’s primary care and had only supervised visits with the Mother; and
(e)He had no concerns about the Mother’s parenting capacity or abilities until recently, which I inferred was reference to the revelation of Mr BB’s offending.
When asked whether separation of the child and her half-brother caused psychological or emotional harm, the Father said it had “been difficult” for them due to the length of that separation.
He agreed that he believes that the “monster” reported by the child was a nightmare which the Mother “has blown out of proportion”. He does not believe that the child has been sexually abused as she has never made a disclosure to that effect, although he conceded that the child may not have initially understood how to articulate what happened to her. As far as he is aware, the child does not know his opinion and he has not discussed it with her.
The Father conceded that he did not disclose to the Mother that Mr L’s children were subject to a CSS care and protection order because of verbal abuse between their parents. He said that he found this out not long after Mr L’s children were removed from his care, and that Mr L stayed at his home, which was after the child first made disclosure about a “monster”.
The Father said the child had not said anything positive or negative about Mr BB. She did not talk to the Father much about Mr BB, except to say that they spent time at his house and went camping with him. The discussions about camping included that the child has slept in the same bed as Mr BB and the Mother.
When the Mother asked if the Father considers her a protective parent, the Father stated she is “overprotective”.
The Father agreed that a change of residence to his care would affect the child significantly. When asked how the child would feel if she had been sexually abused in his house and then put in his primary care, the Father said that she would not feel very safe. I enquired what he would do if she continued to talk about the monster, to which he responded that he would seek medical advice and continue to support her. In reply to another question by me, he said he would not allow Mr L to remain in the house if the child’s residence is changed, and has already informed Mr L that he will be required to leave.
Asked about accommodation by the Mother, the Father said that his lease ends in late 2023 and will not be extended as the owner is renovating. He added that he is confident about securing other accommodation. He disagreed that having the child in his primary care would cause financial difficulty, stating he knows of services available through Centrelink and other organisations if he has to reduce his working hours. I asked whether he had worked out a budget of outgoing expenses compared to income and social security benefits in that event, to which he replied that he had not.
Ms E
Ms E is the Father’s ex-partner and is the mother of the child’s half-brother, aged five years. She confirmed that her affidavit filed 8 May 2023 was true and correct, apart from updating her occupation and correcting the half-brother’s name. The affidavit was read without objection.
Her evidence was that she has three children, of which the half-brother is the middle child. The half-brother lives with her and spends two nights per fortnight with the Father, and she has no concerns for the half-brother in the Father’s care. The longest the half-brother has spent in the Father’s care is a week on one occasion. She said that communication between her and the Father is good, with the Father always responding to text messages.
Responding to question from the ICL, Ms E stated she would want the child and the half‑brother to spend time together in the Father’s care and that the half-brother’s arrangements had previously been worked to align with the child’s.
Ms E stated that she was unaware that the half-brother had been invited to spend time with the child and the Father at the J Contact Centre. She had not discussed this with the Father, but said she would be agreeable to it occurring. When asked specifically if she had refused the half-brother to attend the J Contact Centre with the Father to spend time with the child, she denied that she had.
It was suggested to Ms E that she and the Mother had been on good or bad terms at times, and she agreed. At present she said she has no relationship with the Mother. She also agreed that the Mother previously suggested she falsify a DNA test in respect of the half-brother’s paternity, and denied that she herself has suggested it.
She agreed that she suffered family violence several years ago with a previous partner. She denied that she told CSS, as alleged by the Mother, that the Father had raped her. She stated that neither the allegation to CSS nor the alleged assault happened, and that she had not previously heard this accusation.
In relation to the evidence referred to at [84] of these reasons, the Mother sought to put an affidavit purportedly relied on in child protective proceedings about another child to Ms E. This was subject of objection by the ICL and Father who had not seen it or been given notice of its content. Before I could rule on the objection, Ms E said that she had not seen the document and repeated that she had not made rape allegations against the Father. As the authenticity of the document was not established, in light of Ms E’s evidence, I did not receive the affidavit in evidence. As I had concern about how it came to be in the possession of the Mother, I made an order pursuant to 188 of the Evidence Act 1995 (Cth) for destruction. When questioned by the Mother, Ms E again stated that she has no concerns for the half-brother in the Father’s care. She denied that the half-brother cannot cope with more than two nights in his care.
The Mother showed Ms E copies of two Facebook message threads, one regarding how the child acquired bruises in the Father’s care[3] and another which the Mother said was abusive towards her.[4] Ms E denied that those messages were sent from accounts of which she had control. She stated that one account was operated by her partner and the other account, while in her name, was not one she operated.
[3] Tender Bundle 2 on page 72.
[4] Tender Bundle 2 on page 73
She again confirmed, when questioned by the Mother, that she was happy for the half-brother to visit the J Contact Centre with the Father to spend time with the child but added that she does not want the half-brother to spend time with the Mother. She agreed that the half-brother misses the child and asks if he can see the child.
When re-examined, Ms E gave evidence that she has a good co-parenting relationship with the Father, the Father is involved in medical and educational decisions for the half-brother, and the Father pays child support of about $60 per fortnight when he can afford it.
The Paternal Grandfather
The paternal grandfather’s affidavit filed 8 May 2023 was confirmed by him to be true and correct and read without objection. He lives in the Father’s household and is present during periods the child spent with the Father when time was not subject to supervision.
When questioned by the ICL, he said that the child has not spoken to him about “the monster”. His understanding of it is what the Father has told him. He is not worried about the child being at risk in the Father’s care as she is “quite safe” in their house.
When asked directly, he denied touching the child on her private parts or knowing of anyone else doing so.
He gave further evidence in response to questioning by the ICL and in summary it was:
(a)That he has never seen the Father smack the child, but had seen the Father smack the half-brother once. This was when the half-brother ran out on to a road and not in respect of a toileting accident as alleged by the Mother.
(b)About the advice he gave to the Father concerning how to smack the children, he said it was to clasp a cupped hand around the child’s hand so as to cause a noise and not actually touch the child.
(c)He has never observed the Father smoke around the child and has only seen the Father smoke outside the house.
(d)He has also never known the Father put deodorant on the child, which he knows aggravates her eczema.
(e)He has seen the Father go through “hard times” in his high school years and following the death by suicide of his friend and then his brother’s death six months later.
The Mother cross-examined the paternal grandfather on a number of topics. In summary, his evidence was that:
(a)He has invited the Father to discuss any issues with him;
(b)He has discussed with the Father the possibility of the half-brother spending time with the child and the Father at the J Contact Centre, but it would require four car trips for each visit. The paternal grandfather is the one who drives the Father to and from the J Contact Centre, and would have to also collect the half-brother from Ms E’s house;
(c)He sometimes has alcoholic drinks two or three times a week at a bar with friends;
(d)He maintained the evidence in his affidavit at [34] that the Father does not drink to excess;
(e)The bruising to the child after a fall in the Father’s care to which he refers in his affidavit at [39] was a red mark rather than a bruise;
(f)The Father did not binge drink during the period the child was spending overnight time in his house, and if the paternal grandfather had observed such behaviour he would have “pulled him up on it”;
(g)Any anxiety the Father experienced from text messages from the Mother was due to the length and number of those messages. The Father would answer simply and succinctly, only to receive another lengthy reply;
(h)Mr L would on occasion be in the bedroom with the child or the half-brother, but the door was never closed and the Father regularly checked on them;
(i)The child had not reported negatively to him about time she spent with Mr BB. When she spoke positively about it, he would reply to the effect of “I’m glad you had a good time”;
(j)Agreed that the child loves the Mother, and were the Court to order that the child live with the Father then there would be a period of transition for the child. The paternal family would help the child work through that; and
(k)He takes medication to assist with his back pain. This is under the direction of a doctor, and they have worked to find pain relief which does not make him drowsy.
The Paternal Uncle
The paternal uncle’s affidavit filed 8 May 2023 was said to be true and correct aside from changing a reference to ‘wife’ in [10] to ‘partner’. The affidavit was read without objection.
When questioned by the ICL, the paternal uncle gave evidence that he considers the child part of his family and will continue to assist with changeovers. He confirmed that he has never seen the Father hit or yell at either the child or her half-brother, and that he has never seen the Father smoke around them. He said that he has not seen the Father socialise with other adults in his home when the children were not properly supervised.
When questioned by the Mother, the paternal uncle’s evidence was that:
(a)He visits the Father once a fortnight, and used to visit as much as possible when the children were there;
(b)He did not contact the Mother directly to spend time with the child. This was because he thought, given the situation between the Mother and the Father, it was most appropriate to make arrangements with the Father;
(c)He cannot recall if he witnessed the child fall off a bunk bed while in the Father’s care;
(d)The child has fun with the Father, the paternal grandmother, and the half-brother;
(e)He was present for the incident at the pool, however he cannot recall the child being upset;
(f)There has been conflict in the paternal family, especially between the paternal grandfather and paternal grandmother;
(g)The Father has asked him for parenting advice in the past. He did not recommended that the Father take the child to the doctor for her eczema, as he presumed that the Mother would do so if needed as she was in her care more; and
(h)He did not discuss the contents of his affidavit with the Father while composing it, nor did the Father tell him what to include.
Mr L
Mr L is a friend of the Father currently living in the same accommodation. He confirmed his affidavit filed 8 May 2023 was true and correct, and it was read without objection.
He stated that he has lived in the Father’s house since late 2022 when he separated from his ex-partner, including during periods when the child has spent overnight time in the Father’s care.
He agreed with Junior Counsel assisting the ICL that his observations of the Father and the child were essentially “snapshots”.
He denied that he played games with the child or the half-brother in the bedrooms, stating that he played with them in the lounge room with the Father or another paternal family member present.
Mr L admitted that his youngest child is subject to a State Care and Protection Order, but denied that he has a history of perpetrating family violence against previous partners. He was not aware until it was put to him in cross examination that the Mother alleges that he raped a previous partner and he denied doing so. He stated that the reason his other children do not live with him is that their mother moved interstate with family as she could not afford to accommodate them in Tasmania.
When asked by Counsel for the ICL to explain the arrangements in the Father’s home, Mr L said that it a three bedroom house and that he, the Father, and the paternal grandfather have one bedroom each. The child and the half-brother sleep in the room he occupies when they spend overnight time with the Father. He deposed that he has slept in the same bedroom as the child on one occasion and the brother on a few occasions, and he denied that he had ever slept in the same bed as the children.
When asked directly by Counsel for the ICL, Mr L denied either hurting or inappropriately touching the child.
When cross-examined by the Mother in respect of his affidavit at [59] and [60], he confirmed that the adults in the household do not play games with the child or the half-brother in the bedrooms.
The Mother took Mr L to a text message exchange between him and a previous partner in which she alleged that Mr L had sex with her while she was asleep.[5] Mr L accepted the text messages as an accurate record of the conversation and admitted the contents were true “to some extent” and clarified that there were “miscommunications” which had later been discussed. There is no evidence establishing the year when this communication or the events to which it refers occurred.
[5] Tender Bundle 2 at page 128.
Mr L stated he had only slept in the same room as the child once, but could not recall the date or whether that occurred before or after the child began speaking about the “monster”.
At the conclusion of cross-examination, I asked Mr L whether he would leave the Father’s home if he was requested by the Father to do so. He said that he would if it meant that the child could spend time with the Father, and he was prepared to give an undertaking to that effect.
THE ICL’S CASE
The ICL’s recommendations at the conclusion of the hearing remained as sought in her Case Outline filed 21 May 2023 and advised to the parties on 9 May 2023. That is, that the Father have sole parental responsibility for the child subject to a carve out for the child’s name and State of residence, that the child live with the Father, and that the child spend two to five nights a fortnight with the Mother.
The ICL relied on the following documents:
(a)Child Dispute Conference Memorandum dated 1 February 2021 (Exhibit ICL-1);
(b)Section 69ZW Report from dated 7 July 2022 (Exhibit ICL-2);
(c)Section 69ZW Report from dated 11 November 2022 (Exhibit ICL-3);
(d)Affidavit of Dr Q filed 15 April 2019 (Exhibit ICL-4);
(e)Affidavit of Dr Q filed 7 November 2021 (Exhibit ICL-5);
(f)Affidavit of Dr Q filed 4 April 2022 (Exhibit ICL-6);
(g)Affidavit of Dr Q filed 15 December 2022 (Exhibit ICL-7);
(h)Affidavit of Dr Q filed 10 April 2023 (Exhibit ICL-8);
(i)Affidavit of Ms U filed 8 May 2023 (Exhibit ICL-9); and
(j)Affidavit of Dr HH filed 5 May 2023 (Exhibit ICL-10); and
(k)The Case Outline filed 21 May 2023.
Further, the ICL tendered the following documents into evidence:
·Exhibit ICL-11: My Family Wizard app messages;
·Exhibit ICL-12: Progress notes of Dr DD dated 17 August 2021;
·Exhibit ICL-13: EE Hospital Outpatient Consultation Summary authored by Dr DD dated late 2021;
·Exhibit ICL-14: EE Hospital Outpatient Consultation Summary authored by Dr DD dated late 2022;
·Exhibit ICL-15: Victim Impact Statement of “Jane Doe”;
·Exhibit ICL-16: Email between Ms U and the Mother dated 12 August 2022;
·Exhibit ICL-17: Incident report from CSS dated October 2017
·Exhibit ICL-18: Medical progress notes under cover letter authored by Dr JJ dated 8 July 2020;
·Exhibit ICL-19: Medical progress note of Dr KK dated 28 September 2020;
·Exhibit ICL-20: Tasmania Police documents dated 2020;
·Exhibit ICL-21: Comments on passing sentence Mr M dated early 2023
·Exhibit ICL-22: Email from H School dated 2 May 2023 attaching an exchange of communication between Ms LL and Ms MM;
·Exhibit ICL-23: H School Term 1 2023 progress report compiled by Ms MM; and
·Exhibit ICL-24: J Contact Centre progress notes.
Dr DD
Dr DD is a paediatrician who gave evidence in response to a subpoena filed by the ICL on 2 May 2023. She works in the public health service and is on the Paediatric Sexual Assault Clinic roster with the EE Hospital. Her expertise and qualifications were not challenged.
She identified the documents tendered as Exhibit ICL-12, Exhibit ICL-13 and Exhibit ICL-14 as documents she produced in respect of the three consultations the child had with her.
Counsel for the Father took Dr DD to progress notes authored by her on 17 August 2021.[6] She confirmed that on this occasion she physically examined the child, including her genitals. Her main diagnosis on that occasion was vulvovaginitis, but she did note mild eczema and an unexplained abrasion on the child’s labia minora. When asked to speculate as to the cause of the abrasion, she agreed that it could have been caused by the child scratching the area with her fingernails.
[6] Exhibit F-1.

Dr DD stated that on 17 August 2021 she found no evidence consistent with sexual assault, but qualified that by saying it is not uncommon for there to be no findings based on physical examination.
Counsel for the Father took Dr DD to documents authored by her following the child’s presentation to her on 2 December 2023 for eczema.[7] She confirmed that the vulvovaginitis had resolved as at that date. She confirmed that she did not examine the child’s genitalia as there was no reason to do so.
[7] Exhibit ICL-13
When asked about a third appointment the child had with her on 12 August 2022 for a medical condition,[8] Dr DD confirmed that she recorded the first mention from the Mother of a “monster” touching the child while in the Father’s home, but the child has not made any disclosures directly to her.
[8] Exhibit ICL-14
The Mother asked Dr DD to elaborate upon her statement that it is not uncommon for there to be no findings of sexual assault based on physical examination.[9] She replied that when asked to examine a child where there are allegations of sexual assault, she will perform full body exam. If no injuries are found, that does not preclude that sexual abuse has not occurred.
[9] At [114] of these reasons.
When asked by the Mother whether vulvovaginitis was likely to present only in one home and not the other, implying in the Father’s home and not hers, Dr DD said that the condition can occur due to a number of causes. Some of those causes could be environmental.
Dr DD agreed that the Father did not attend any appointments with her.
In conclusion, the Mother asked whether Dr DD thought she was acting inappropriately by seeking medical treatment for the child. Dr DD replied that it was obvious that the Mother had a number of concerns at the time, and was acting as a protective parent who took Dr DD’s advice at the consultations.
Ms U
Ms U confirmed that her affidavit filed 8 May 2023 was true and correct, and it was read without objection. Ms U is a registered psychologist who had 10 sessions with the child through T Support Service in 2022 and was consulted on the child’s engagement with T Support Service in 2021.[10]
[10] Affidavit of Ms U filed 8 May 2023 at [6] and [7].
In chief, Ms U was shown a Victim Impact Statement by Ms CC.[11] Ms U confirmed that Ms CC is a client of hers and was the ex-partner of Mr BB. Ms CC prepared the Victim Impact Statement with the assistance of Ms U in the criminal proceedings against Mr BB. She said she became aware of the connection with these proceedings when she attended court with Ms CC and saw the Mother supporting Mr BB.
[11] Exhibit ICL-15.
When questioned by Counsel for the Father, Ms U gave evidence that she attended court twice to support Ms CC, once for handing down findings regarding disputed facts and once for the sentencing of Mr BB. She agreed that the comments on passing sentence in the court noted that the children of Ms CC and Mr BB witnessed the family violence.
Ms U said that her engagement with the child focused on protective behaviours and consent as there were family law proceedings on foot and the disclosures had been made to the Mother. Her role, in that context, was neither to question the child in order to obtain a disclosure nor to challenge any disclosures made. She agreed that the child was already aware of protective behaviours such as safe/unsafe secrets and body labelling.
In respect of the 2022 referral of the child to T Support Service, Ms U agreed that she thought the service was no longer appropriate given the ongoing court proceedings and that the child’s presentation was more around anxiety than sexual harm. In summary, her evidence regarding the child’s 10 sessions in 2022 was that:
(a)The Mother pushed for the child’s re-engagement with T Support Service, and the service accepted the referral only on the basis that there was a consent order made by the Court;[12]
(b)The child made a statement that someone or something was touching her in her Father’s house, and indicated her private parts;
(c)She recommended no further sessions in her letter dated 24 June 2022[13] as it could be construed that the child was being lead into disclosing harm, given the lack of clear disclosures to date;
(d)The only time the child became distressed when discussing the possibility of not going to the Father’s house was in the context of not seeing her brother. The child said she would tell Ms U who was touching her if Ms U promised her that she would still be allowed to see the half-brother, but she did not specify the sort of touch to which she was referring or when it occurred; and
(e)There were inconsistencies in the child’s reporting.
[12] Order made 30 November 2021.
[13] Mother’s Court Book on pages 121 and 122.
Counsel for the Father asked Ms U whether she was concerned that T Support Service was being used to elicit disclosures from the child. She replied that she was, and hence had no further sessions with the child. When asked if she felt that T Support Service was being utilised to further the Mother’s agenda in family law proceedings, she said she was conscious of the possibility that the purpose of the sessions was to confirm or clarify the disclosures made by the child. She added that she was conscious of not furthering the narrative of sexual harm with a young child who wants to “people please”.
Under cross-examination by the Mother, Ms U’s evidence was, in summary, that:
(a)It can be normal for victims of sexual abuse to report inconsistently;
(b)Most parents access T Support Service for the sake of their children, although some do for family law purposes;
(c)The child did not report anything indicative of family violence in the Mother’s home;
(d)She had the report of Dr Q referred to by the Mother in an email dated 3 February 2023[14] on the child’s file, but has not read it due to time constraints;
(e)Ms U had one phone conversation with the Father, and he did not attend any appointments. He was anxious about whether he was supposed to talk with her and said he needed to check with his solicitor; and
(f)When asked whether it was normal for a child to not want to disclose sexual assault, stated it is difficult to give a general answer as they may want to do so, but not know how to express it or may not feel safe.
[14] Exhibit ICL-16.
In response to my request to expand on evidence she gave in respect of communication from the Mother dated 3 February 2022[15] raising concerns about the reasons for engaging the child with T Support Service, Ms U responded the Mother was quite upset that Ms U would not discuss the details of her communication with the Father and queried whether that was at the Father’s direction.
[15] Exhibit ICL-16.
In re-examination by the ICL, Ms U was asked to further clarify what she meant by evidence as summarised at [126] of these reasons about “people pleasing”. Ms U replied that children who feel safe with and have a good attachment to a person may try to give the answers they think that person wants, and can take questions as an indication that a different answer is wanted. Further questioning may have lead the child to feel that Ms U was “trying to get something out of her”, the implication being that the child would then change her answers.
She denied that her concerns as expressed at [126] of these reasons were unduly influenced by information provided by the ICL about the Mother’s perceived motivations. Ms U also added that the focus of the service is on the best interests of the child, and first and foremost disclosures are believed when they are made.
Dr Q
Dr Q, a clinical psychologist whose expertise and qualifications are well recognised, gave evidence as the Single Expert. She has frequently given evidence in this Court and was involved with the parties in the previous proceedings leading to the 2019 orders being made. She had extensive knowledge of the history of the parties and the child.
Dr Q’s five reports were received in evidence unopposed. She had read the Mother’s and Father’s trial affidavits and by consent of the parties heard the evidence of Ms U prior to giving evidence to the Court. Dr Q had also considered the J Contact Centre records, the comments on passing sentence by the Judge concerning Mr BB, and the Father’s affidavit concerning Mr BB.
Dr Q was asked about the content of an email from the school dated 2 May 2023,[16] and she stated that the described reaction of the child suggested to her that she had been exposed to yelling on more than one occasion. As the Father’s family had not seen the child otherwise than in a supervised setting in the last 12 months, this suggested that the source of her reaction was due to events in the Mother’s care and was a cause for concern. Dr Q recommended that the child should be professionally supported to deal with these emotions.
[16] Exhibit ICL-22.
Asked about the affidavit evidence of the maternal grandmother and Mr R, Dr Q agreed that, there was a lot of discussion in the Mother’s household about the child’s fears in the Father’s home and inappropriate touching.
With respect to the evidence provided by Ms U and the content of the T Support Service records, Dr Q stated there was inconsistency in the child’s disclosures. She stated that the credibility of a child’s disclosures about sexual abuse can be affected by interactions or discussions had with or heard by the child. Adults can perhaps unwittingly introduce ideas or use leading questions.
It was significant, in Dr Q’s view, that the child had not made any disclosures to police or CSS when they conducted investigations and that there were no positive signs of sexual abuse on medical examination. She opined that sexual abuse of the child could not be ruled out, but there was another plausible explanation. Dr Q opined that the conversations being had with the child in the Mother’s home were unstructured, and may have introduced concepts to the child.
Dr Q agreed with Counsel for the ICL that the maternal family were all persuaded that sexual abuse had occurred and have put increasing weight on that theory. Asked about her view that the Mother had an obsessional belief about the child being sexually abused, Dr Q explained that this meant she had rumination of thought which was difficult to get out of and that the Mother needs therapeutic support because the thought is hard to alter.
Asked how difficult it is to break obsessional thought of this kind, Dr Q stated that in the context of obsessive compulsive disorder it is difficult to moderate, particularly where the concept is “grey” and there will be rumination about “what if I am right?”. Dr Q stated that the Mother’s obsessive thought about the child being sexually abused would affect the child’s and the Mother’s mental health. She explained that, because the Mother was the child’s primary attachment, she has a strong influence on the child and the child will be looking to her and learning from her every day about what is scary and what is not. If the parent is misguided about this, the child too will be misguided and will perceive threat when it may not be there.
Dr Q stated that the Mother has obsessive compulsive traits and that she has met her a number of times and had opportunity to form this view. The view is borne out from her experience with the Mother, what she writes, and what triggers her.
Asked what the Father could do to manage the Mother’s obsessive-compulsive traits, Dr Q stated it was important that he use transparent communication, but limit the length of it. However, it would still be wearing for the Father, so she recommended that he provide responses to risk concerns raised by the Mother in a succinct and timely way.
As to the Father’s behaviour of not responding to the Mother’s concerns, she opined that this involved examples of control or uncooperative parenting, although he may have experienced frustration.
Noting the parties’ contrasting cases, the ICL asked what the impact on the child may be if the Court accepted the Father’s case for a change in primary care. Noting that this would involve a “massive change”, Dr Q was asked whether there was a middle ground. She stated there was always middle ground, but in this case the elephant in “the room” is Mr BB.
She was asked whether she could comment on the nature of sexually violent crimes in the context of being involved in this case for four years. Dr Q stated that her primary qualifications related to criminal assessments and that she has undertaken assessments in cases of alleged violence and sexual violence for 27 years. She has also published articles on the subject and had read the comments on passing sentence in regards Mr BB[17] and regards him as a most serious family violence offender.
[17] Exhibit ICL-21.
Although Mr BB is imprisoned, Dr Q considered that the risk to the child had not gone because the Mother had encouraged the child’s relationship with Mr BB by writing letters and facilitating telephone calls, and she has not informed the Father about Mr BB’s criminal offending, but instead has hidden it away.
Asked what the hiding of Mr BB’s offending said about the Mother’s apparent obsessive or overprotective attitude, Dr Q stated:
I’ve reflected closely on this, looked at the notes of conversations and things make more sense.
Dr Q expanded, stating that she considered it implausible that Mr BB, a serious family violence offender with such level of distortion, would suddenly experience an elimination of violent tendencies. She added that she is really concerned for the child and the risk posed by Mr BB, and by the Mother’s lack of protection of the child against his behaviours.
The evidence referred to at [143] to [146] of these reasons weighed heavily and gave a strong impression about the grave concerns about the Mother’s insight and her capacity to objectively approach promoting the child’s relationship with the Father.
When cross-examined by Counsel for the Father, Dr Q added:
(a)If it was that the Mother who had previously notified Mr R about Mr BB and his criminal offending, this indicated subterfuge on the Mother’s part;
(b)The content of the Mother’s text messages of 11 May 2022 to Mr BB’s ex-partner, read to Dr Q’s during cross-examination, led her to form the view that the Mother is in a toxic attachment with Mr BB, is complicit in vilification of Ms CC even though Mr BB pleaded guilty to persistent family violence, and she portrays otherwise to protect herself from the reality. She stated this demonstrated cognitive distortion, because Mr BB has admitted the offending;
(c)The Mother’s maintenance of allegations against the Father, when the Mother has been told by the paediatrician Dr DD, the general practitioners whom she attended with the child fortnightly in 2021, police and CSS that the Father is not a risk, indicates that the Mother’s judgment is impaired;
(d)This impaired judgment presents risk to the child which is chronic and documented in her reports. Holding obsessive views contrary to the evidence, being in a toxic relationship and overtly criticising Ms CC, while fostering a loving relationship with Mr BB means the child is exposed to serious risk; and
(e)Even completely discounting family violence on the part of Mr BB, Dr Q considered that the criticisms of the Father in the face of no clear evidence is incongruous and puts the child at risk emotionally.
Dr Q did not believe that the Mother would ever accept that the child was not at risk in the Father’s care. Further, that if the child remained in the Mother’s care, the obsessional beliefs about the Father exposing the child to harm would perpetuate as the Mother cannot stop her obsessional thinking.
Asked if ongoing therapeutic engagement by the Mother would overcome her cognitive distortion, Dr Q stated that nothing in the records from PP Centre or from Dr HH’s report appears to have altered the path of her distorted thinking.
Consequently, Dr Q opined that the impact on the child of the Mother’s obsessional and likely unfounded allegations against the Father, is that she may develop with a heightened perception of threat and a distortion of male relationships.
In relation to the impact of growing up with the belief of having been sexually assaulted, Dr Q stated it was difficult to predict, but there were multiple risks involved which become evident in adolescence. These include lack of trust, belief that what is normal is not, and distortion of relationships with family members, especially the Father; all of which were known to lead to difficulty in trusting, unsuccessful relationships, effects on her sexuality, abuse of alcohol or prescription medication, and self-harm.
Dr Q stated there was a risk of severance of the child’s relationship with the Father, which posed disadvantage for the child. This is described increasingly in literature in connection with parental alienation and the research about this. In summary, the research and literature is that if denied or deprived of a relationship with a parent there is potential impact on physical and mental health.
It was suggested to Dr Q that the Mother did not have the emotional capacity to support the child psychologically and emotionally. She replied that the Mother has the capacity to do so, but the capacity is displaced by her chronic and serious cognitive distortions.
Asked about the Father’s capacity to parent and provide emotionally for the child, Dr Q stated that there had never been a time where he had been fully responsible for the child; so he needs to gain capacity in parenting but historically he has shirked the responsibility.
In the context that the Mother had acknowledged that the Father did not want to sever his relationship with the child, Dr Q was asked whether there was a way of the Mother maintaining primary care while not severing the relationship between the Father and child. Dr Q stated that she did not know, but that the Mother knows.
Alternately, in the event that the Court considered changing primary care of the child to the Father, Dr Q was asked whether the Father was a “good enough parent” to not expose the child to serious risk of harm. Dr Q stated that it was untested, but that it “takes a village to raise a child” and he would need many supports around him. She agreed that the paternal grandfather, paternal uncle, his former partner Ms E, and potentially K Family Services workers could all assist.
Dr Q also stated that the Father would benefit from mental health supports, regular contact with the child’s general practitioner, and drug and alcohol counselling to ensure that he does not relapse into abuse of these substances.
In view of the risks of harm posed by both the Mother and the Father for different reasons as identified by Dr Q, she was asked about harm minimisation. Dr Q agreed that balancing the child’s time between the two parents was an option. This would require normalising the child’s sleep routine in her bedroom at the Father’s home. In addition, that contact between the child and Mr BB should cease as an emotional attachment with him would be unhealthy as the relationship is fraught with concerns.
Dr Q considered that if the child continued to live with the Mother, there was a risk in orders for supervised time with the Father as it would send the wrong message that the child was abused or at risk in the Father’s care.
Asked why she had previously expressed a view until the final hearing that the Father’s time with the child should be supervised, Dr Q explained that significant concerns had been raised and that it was protective of everyone in the interim until the court conducted a final hearing.
Cross-examination by the Mother
Dr Q stated that the child’s distress over not spending time with her half-brother would not go as far as “harm”. It may lead to cumulative trauma if there is repeat distress, but otherwise it is part of resilience and adaptation.

In relation to the child’s sleeping arrangements at the Father’s home, Dr Q stated that there were two incidents which demonstrated lack of judgment, being drying the child in the presence of a male adult and allowing a male adult to sleep in the child’s bedroom in circumstances where there are allegations about sexual abuse. Dr Q added that, having reviewed documents in the Tender Bundle, the Father had engaged in parenting programs since and the J Contact Centre records suggest that he has come a long way in his parenting.
Asked about the Father only engaging with T Support Service by phone calls, Dr Q stated she was unsure whether it was preferable that he had attended and engaged with their resources.
Dr Q was also asked to comment on the Father’s non-engagement with medical supports for the child. She stated that if a parent is a primary carer that was very serious and concerning, but if the parent is not the primary carer and believes that the primary carer has treatment in hand it is not so concerning.
It was suggested by the Mother to Dr Q that a significant reduction in her time as primary carer of the child would negatively impact and harm the child. Dr Q responded that harm is not necessarily inherent with any change. When pressed, Dr Q maintained that there would be adjustment and distress if the Mother’s time was reduced, but not necessarily rising to the level of harm.
The Mother also suggested that the Father would not support or promote the child’s aboriginal heritage. Dr Q simply stated that it was desirable for children to explore their heritage.
Dr Q agreed that it was not good judgment for the Father to allow Mr L to sleep in the child’s bedroom.
At the end of Dr Q’s evidence, I enquired of Dr Q whether there was any pathway forward where the Mother would be able to support the child’s relationship with the Father. She replied that it would be difficult, but it may be that once the Father has had an opportunity to parent the child, it may provide evidence to the Mother that the child is safe and happy in his care. However, she expressed reservation because in the past nothing has satisfied the Mother of this. I also asked whether the Mother would be capable of tolerating a parallel parenting approach. Dr Q stated:
(a)that the Mother would find it difficult but could tolerate it; and
(b)she was supportive of a parallel parenting approach, as it could possibly ameliorate the risks posed to the child in each household; and
(c)that the relationship between the child and the Mother was strong enough to be maintained if the Court ordered that the child spend less time with the Mother than she does currently.
Dr HH
Dr HH’s affidavit filed 5 May 2023[18] was read without objection. She is a clinical psychologist upon whom the Mother has attended in private practice. The Mother attended appointments with her on eight occasions: seven regularly between February 2022 and August 2022, and one on 1 May 2023.[19]
[18] Exhibit ICL-10.
[19] Exhibit ICL-10 on page 11.
Under cross-examination by Counsel for the Father, she confirmed that she was appointed by referral from the ICL and at the time of her appointment was provided with two reports of the Single Expert dated 7 November 2021 and 4 April 2022.
Dr HH gave evidence that she took an approach with the Mother based on cognitive behavioural therapy. The Mother raised concerns about the quality of medical care and safety‑related decision making for the child in the Father’s case, not specifically about sexual abuse. She said that she was aware that the Mother had reported her concerns to various people, including CSS, but the Mother did not discuss any specific outcomes. She was also aware that the Mother had taken the child to her general practitioner, but not that it happened fortnightly for a year.
When asked about the Mother’s beliefs, Dr HH said that the Mother believes that something has happened to the child. However, Dr HH’s therapeutic role is to assist her cope with that belief rather than challenge it. She could not say if the Mother’s beliefs would shift.
She was asked about the J Contact Centre notes outlining a “signal” the supervisors arranged for the child to use if she was uncomfortable with the Father during supervised visits, which the Mother claims was then ignored. Dr HH said that the Mother was hypervigilant about the use of the signal, and Dr HH worked with her in reducing her hypervigilance by focusing on her time with the child rather than on the Father’s parenting. She agreed that there had been a pattern of escalation in the Mother’s hypervigilance, and that therapeutic intervention is “only going to do so much” when the Mother is in a stressful situation.
Dr HH stated that the Mother spoke of Mr BB only in the context that she would visit him on the weekends.
Under cross examination by the Mother, Dr HH’s evidence was that:
(a)Initially the Mother had hoped for a cooperative co-parenting arrangement with the Father, but then realised she may not get a response to her communications;
(b)They discussed finding a balance between conducting her family law matter and having a ‘switch off’ period;
(c)The Mother told her that sometimes her support would come from Mr BB of a weekend;
(d)The Mother did not identify any negative aspects of her relationship with Mr BB, although that would only have been discussed if the Mother raised it with her as her therapeutic role was quite targeted.
I enquired of Dr HH whether the Mother has the cognitive make up and capacity to change her obsessive traits and thinking. She stated that if there were no other stressors it may reduce, but while she has any concern about the child’s safety then she will continue to worry. Dr HH confirmed that this was in a broader context than just the “monster”.
LEGAL PRINCIPLES
In parenting proceedings, the paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[20] Express direction is provided in s 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[20] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in s 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[21]
[21] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1.
The evaluation of risk of harm required by s 60CC(2)(a) and (b) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[22]
[22] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
In addition to the foregoing, the Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[23] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[24]
[23] Section 61DA(1) to 61DA(4).
[24] Sections 61B and 65DAC.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[25]
[25] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of the phrase substantial and significant time is provided for in s 65DAA(3) of the Act.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority.[26] I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA 1346. All the considerations in s 60CC of the Act are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in s 61DA(1) of the Act does not apply by virtue of s 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
[26] Especially at [9], [12], [13] and [14].
The approach to be taken in applying s 60CC(2) of the Act was discussed in detail in the first instance and appeal judgments in Isles & Nellisen [2022] FedCFamC1A 97 in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. The principles stated in my view are applicable to assessment of the nature and extent of risks to the child in these proceedings.
EVALUATION AND FINDINGS
I find that the Mother has a loving and meaningful relationship with the child. She has been the child’s primary carer and has displayed consistent care and attention for her since birth. However, there is ample evidence demonstrating that she is overprotective and obsessive in her views about the child’s safety in the Father’s care. I find this is very likely to adversely impact on the quality and nature of the child’s relationship with the Father, especially if the child spends limited and supervised time with the Father.
The Father’s opportunity to participate in the child’s life has been limited, but despite this the child has expressed love for him and enjoys time spent with him. The Father has persevered in pursuing proceedings to ensure that he has a relationship with the child against the Mother’s conduct in limiting or ceasing time. The irregular time the Father has been able to spend with the child, despite his efforts, is demonstrated in the chronology in his Case Outline and the evidence to which it refers. I find that he is genuinely committed to pursuing a meaningful relationship with the child for her benefit.
I reject the Mother’s case that the child is exposed to unacceptable risk of harm, whether emotional or physical, in the Father’s care for the following reasons:
(a)I accept the evidence of Dr Q that the Father and his extended family are likely to provide “good enough care” for the child;
(b)It is unlikely the child has been sexually abused in the Father’s household and the reports made by the child are more likely explained by the Mother’s interpretation and response to it based on her obsessive and overprotective traits;
(c)There is another, more plausible explanation for the reports by the child, being that offered by Dr Q and Ms U relating to the effect of repeated questioning around the reports and allegations; and
(d)I accept the assessments and views referred to in the reasons below at [206].
I accept the submission by the ICL that, because of the Mother’s obsessional and overprotective belief that the child has been sexually abused in the Father’s household, she is unlikely to promote a meaningful relationship between the child and Father.
I find that the Father will probably promote a relationship between the Mother and the child, despite the difficulties in the parents’ interactions. This is because he has a more laid-back and likely permissive parenting style based on the evidence about his engagement in parenting and the expert views that he needs to “step-up”. I consider he will acknowledge the child’s bond with the Mother and the importance of the need to maintain this.
In arriving at the findings at [190] of these reasons, I rely on and accept the evidence of the Father and Ms E that they have negotiated a cooperative co-parenting relationship with respect to the half-brother. This conveys the Father’s ability and preparedness to facilitate continuation of maternal and child relationships.
I accept the submission of the ICL that the child’s view ought not to carry significant weight. Despite this, it is relevant that the child desires time with her half-brother, which can be facilitated if she spends time with the Father. Further, despite the Mother’s allegations about neglect and sexual abuse of the child, the child has not refused to spend time with the Father, nor is there evidence that she has expressed the view that she does not want to spend time with him.
It is apparent from the evidence of the paternal grandfather and uncle, which I accept, that the child is cared for and valued as a family member and has participated to the extent practically possible with family activities. Her relationship with the paternal family is likely to strengthen, leading to her deriving more meaning in them if she spends more time with them.
It is demonstrated by the evidence of maternal grandmother and the Mother that the child has a strong bond with the maternal extended family. This is unsurprising, given that she has lived with them for long periods and the maternal grandmother is very involved in the child’s care. I find on the basis of this evidence, which was unchallenged, that the child has a meaningful relationship with the Mother’s extended family.
The unchallenged evidence is, and I find, that the Mother has fully participated in making decisions regarding the child, both long term and otherwise. However, I find that this participation has often been obsessive and excessive to the reasonable requirements of the child, as I accept the evidence of Dr Q.
I also find that, as a consequence of the obsessive and over-protective parenting by the Mother, the Father’s ability to participate in decision making about the child has been somewhat obstructed. However, I find that the Father has largely found it easier to acquiesce than engage with the Mother in taking joint decisions because of his frustration and lack of communication skills.
Despite the above, by his pursuit of these proceedings, the Father has shown his perseverance in seeking to be involved in decision making for the child and spending time with her.
The Father has endeavoured to communicate with and continue spending regular and substantial time with the child, but has done so subject to constraints caused by multiple complaints about his parenting capacity and the allegation of sexual abuse made by the Mother.
The unchallenged evidence is that the Father pays child support, but the Mother is dissatisfied with the contribution he makes. I find accordingly.
I find that the Mother, as the primary carer, has maintained the child from social security payments, assisted by the contributions made by the Father.
I find on the basis of the common evidence of the Mother, the Father and Ms E, that the child has been distressed by her separation from her half-brother. I find that she wants to spend time with her half-brother, but this has not been facilitated while the Father’s time with her is supervised. Preferring the evidence of Ms E and the paternal grandfather, the child’s half‑brother has not attended the J Contact Centre to spend time with the child probably due to transport difficulties involved.
Although the Mother made much of allegations of mental health issues and of alcohol and drug abuse on the Father’s part, there is no probative evidence that the Father has in the past few years experienced mental health difficulties or substance abuse issues which interfered with his capacity to safely parent or care for the child. There was evidence of excessive use of alcohol in connection with the Father’s grief at the time of his brother’s death, but I find that this was isolated and a grief reaction. There is no probative evidence suggesting the Father continues to abuse alcohol and I find on the balance of probabilities that he does not.
Notwithstanding the above, I find that these parenting proceedings and the constant dispute about the child spending regular and significant time with the Father likely impacts his emotional state. Based on the paternal grandfather’s and uncle’s evidence, I accept this has not impeded his capacity to care for the child, particularly because he has family members supporting him.
I find on the totality of Dr Q’s evidence, which was not diminished by the Mother’s cross‑examination, that the Mother lacks capacity to provide for the child’s emotional needs. I accept the views expressed by Dr Q that Mother has obsessive compulsive traits which cause her to experience considerable anxiety disproportionate to reasonable reactions to demands or stressors. Consequently, because this is unlikely to change,[27] I find that the Mother’s capacity to care for and parent the child is likely impaired and puts the child at risk of also developing anxiety disorder or traits or interfering with her capacity to build healthy relationships.
[27] Noting the evidence at [150], [151] and [177] of these reasons.
The Mother made submissions concerning the child’s aboriginal heritage, but the purpose of those submissions was not explained. She did not put to the Father that he would not promote the child’s aboriginal heritage, and I have no evidence upon which to conclude that he would not.
The Mother’s attitude to the child is obsessive and overprotective. This is demonstrated by the abundance of evidence recorded by CSS, Dr Q, and within medical and Tasmania Police records before the Court which report a plethora of complaints, appointments and allegations relating to the child’s health and sexual abuse. However, CSS, Tasmania Police and medical practitioners considered the complaints and concerns unsubstantiated and took the view that there was no risk in the Father’s care.[28]
[28] Exhibit ICL-2; Exhibit ICL-3; Exhibit ICL-8; Exhibit ICL-13; Exhibit ICL-14; Exhibit ICL-15; Exhibit F-13.
I find that the Father’s attitude to the child and responsibilities of parenting have been less than adequate or reasonable at times, based on findings I make below as examples of this, and is less vigilant to foods that cause reactions to the child’s eczema. However, I accept that during the course of these proceedings, he has taken steps to develop better knowledge and understanding of the child’s needs and of parenting. I consider it likely that if he has opportunity to spend more time with the child, his parenting skills will improve.
The Mother alleged that the Father smacked the child, based on reports to her by the child. The Father and paternal grandfather gave evidence about the approach to physical discipline. The effect of their evidence was a concession that indirect physical modes were used to discipline the child. It is likely that the action described by them, would be interpreted by the Mother as smacking and experienced as some degree of distress in the child.[29] However, I do not accept the suggestion made by the Mother that the Father abuses or neglects the child causing physical injury or harm. More likely, the evidence given by the parties demonstrates typical childhood mishaps involving scrapes, bruising and upset.
[29] As conceded by the Father and referred to at [67] of these reasons.
I have not been persuaded on the balance of probabilities by the Mother’s evidence and her submissions that the Father perpetrated family violence. It is more probable that the Mother’s history of cumulative trauma[30] and anxiety regarding the child’s welfare leads her to subjectively conclude that the Father perpetrates family violence. I find on the balance of probabilities that the Father has not perpetrated family violence towards to the Mother.
[30] Report of Dr Q dated 17 November 2021 at [48].

The effect of the Mother’s allegation relating to the child’s reports about a monster and being touched in her genital area, is that the child is at risk of family violence in the Father’s household as a result of sexual assault or sexually abusive behaviour. The Mother has specifically stated that she does not allege that the Father is responsible for the conduct.[31] She has not identified a particular individual whom she alleges is responsible for the conduct. However, she has made suggestions inferentially that it may be Mr L or possibly the paternal grandfather.[32]
[31] At [15] of these reasons.
[32] Affidavit of the Mother filed 8 May 2023 at [27] and [43]; at [106] of these reasons.
The Mother’s evidence about the child’s reports of sexual abuse are subjective and corroborated by witnesses that were shown not to be objective or impartial. I have treated the evidence given by the Mother, the maternal grandmother and Mr R about alleged sexual abuse of the child with the greatest caution and do not consider it probative. In the Mother’s case, her interpretation of what the child may have said is likely to have been influenced by anxiety, personality traits and potential agenda. Further, it is significant that the reports by the child and, in turn, by the Mother did not arise until early 2020, after she had commenced a relationship with Mr BB and followed a period when the Mother had been making multiple complaints about the Father’s capacity to care for the child, all of which were dismissed as being baseless by CSS.
Accordingly, I place little weight on the evidence of the Mother in respect of this very serious allegation against the Father or a person in his household. I consider the evidence of Dr DD, CSS investigative outcomes and Dr Q more probative and reliable in assessing whether the child has been sexually assaulted in the Father’s household, or whether there is a risk that this has occurred and may occur in the future.
Based on the totality of the evidence referred to at [211] of these reasons and Ms U’s evidence about the suggestibility of a child, the Court is not satisfied on the balance of probabilities that the child has been sexually abused in the Father’s household by an unidentified person.
While the child has given varying accounts of being scared by a monster and touched in the genital area, as both Dr Q and Ms U stated the reports are inconsistent and susceptible to influence because of the Mother’s actions and the repeated discussion in her household.
In addition, Dr Q has offered another plausible explanation for the child’s reports, while Ms U was concerned that the Mother has been motivated to agitate the allegations in order to limit the Father’s time with the child. Ms U’s view glaringly correlates with the substance of the conversation between the Mother and Ms E referred to at [12] of these reasons cannot be ignored, given my findings about the Mother’s psychological impairments.[33]
[33] At [204] of these reasons.
I am not prepared to conclude that the Mother has intentionally falsely concocted the allegations that the child has reported sexual abuse in the Father’s household because I am cognisant of her trauma history and emotional vulnerability and I accept the opinion of Dr Q that she has impaired judgment.
Although I cannot exclude the possibility referred to at [215] of these reasons, it is more likely that the Mother’s distorted judgment has led to the escalation and misrepresentation of statements made by the child and escalated them beyond their objective meaning.
Although I cannot exclude the possibility that the child has been sexually interfered with in the past and may be in the future while in the Father’s care, I find the risk of this to be low and hypothetical on the totality of the expert evidence referred to above.
The evidence about the Mother’s controlling behaviours may rise to the level of family violence as it is defined in s 4AB of the Act. Namely, other behaviour by a person that controls a member of the person’s family, as this term is defined in s 4AB(1) of the Act. By her own statements, the Mother has sought to frequently direct and instruct the Father to comply with her expectations and demands about the care of the child, beyond what I consider reasonable. This is plain from the evidence very helpfully captured in the chronology in the Father’s Case Outline.[34]
[34] On 14 May 2018, 15 May 2018, 13 January 2020, 3 June 2020, 4 June 2020, 6 June 2020, 8 June 2020, 5 July 2020, 8 July 2020, 10 July 2020, 20 October 2020, 25 January 2021, 9 February 2021, 16 February 2021, 17 February 2021, 23 February 02021, 4 March 2021, 31 March 2021, 9 April 2021, 22 April 2021, 14 July 2021, 28 July 2021, 13 August 2021, 30 August 2021, 8 February 2022, 11 February 2022, 12 August 2022, 10 October 2022, 14 November 2022, 27 November 2022,
It is unnecessary to make a direct finding about whether the Mother’s conduct as described at [219] of these reasons amounts to family violence because I am satisfied that by bringing the child into contact with Mr BB and spending many weekends over about four years with him, the Mother has exposed the child serious risk of family violence, as I accept the evidence of Dr Q referred to at [143] to [146] of these reasons.
The Mother has forcefully put the contention that the consideration in s 60CC(3)(d) of the Act should carry great weight in the Court’s evaluation of what parenting orders will be in the child’s best interests. I find that the child has a very close bond with the Mother and regards her as a “safe person”. She has been the child’s constant presence, tending to all her needs and making decisions for her well-being and development.
However, the evidence of Dr Q is that the child would likely adapt to a change in primary care, although would experience some distress. When pressed by the Mother about this, Dr Q disagreed that it would cause harm to the child’s well-being.[35]
[35] At [166] of these reasons.
I accept the views of Dr Q and find that there are unlikely to be long-term adverse effects for the child if there is a significant change in her living and care arrangements, providing the transition is carefully managed, including by:
(a)The child progressing to spend significant and substantial time in the Mother’s care on a regular basis; and
(b)The child being supported with provision of qualified psychotherapy;
(c)The immediate opportunity for the child to spend time with her half-brother, as the evidence establishes that Ms E will cooperate with the Father to enable this; and
(d)The Mother being restrained from speaking to the child about arrangements contrary to the final orders of the Court.
The child has been subject to prolonged and repeated proceedings and this is a highly relevant consideration given the level of conflict and dispute between the parents over most of her life.
DETERMINATION
Having made the above findings, balancing all considerations according to the principles referred to at [178] to [185] of these reasons, I have conclude that:
(a)The child is not exposed to unacceptable risk of either physical or emotional harm in the care of the Father;[36]
(b)The Mother has, by virtue of distorted thinking and impairment, or possibly improper motive, engaged in behaviour that has capacity to alienate the child from the Father;
(c)The risk to the child of emotional harm if she remains in the primary care of the Mother and has limited time with the Father is real and significant;
(d)There should be orders that reduce the risk of emotional harm presented by the Mother and that foster promotion of the child’s relationship with the Father and paternal family;
(e)There should be orders that protect or mitigate against the very low risk that the child has been exposed to sexual assault or abuse in the Father’s home or may be so exposed in the future;
(f)There should be restraints that prohibit physical discipline of the child, whether direct or indirect; and
(g)The Father should continue to improve his parenting and coping skills with the additional demands that he will have for the child as he spends more time with her.
[36] Preferring the evidence of Dr Q at [157] to [160] of these reasons.
The presumption of equal shared parental responsibility is rebutted given the findings at [220] of these reasons. In any event, no party seeks an order for equal shared parental responsibility and it is common ground that the parties do not have effective co-parenting capacity for joint decision making.
Accordingly, I accept the submissions of the ICL that the Father should have sole parental responsibility, because I am confident given the findings at [190] and [196] of these reasons that he will more likely give consideration to the Mother’s views and may often agree with them. Accordingly, when exercising parental responsibility, he will be required to invite the Mother to contribute her views, without being bound to accept them, before a major or long-term decision is taken.
It is not in the child’s best interest to make an order that the Mother have sole parental responsibility as she would probably disregard the Father’s views and may even not invite them, noting the reasons given at [187] and [219] of these reasons.
As the presumption of equal shared parental responsibility is rebutted because I have found the Mother has exposed the child to family violence risk,[37] it is not necessary to consider whether the child should spend equal time with each parent.
[37] [220] of these reasons
There are various risks of harm presenting for the child in the care of each parent, but I consider that restraint orders and protections to guard against the risks are likely to be more effective in the Father’s household than the Mother’s because:
(i)I accept the views of Dr Q referred to at [136] to [138] of these reasons;
(ii)The child has already undertaken education with T Support Service, and has some awareness of risks which will improve as she ages; and
(iii)The Father’s parenting capacity and protective behaviours are likely to improve.
In contrast, given the entrenched nature of the Mother’s beliefs, obsessive and compulsive traits, there is less prospect of reduction of the risks of harm identified by Dr Q referred to in these reasons at [152] of these reasons.
I accept the submission of the ICL that there needs to be a change in primary care in the short term, to establish a living and care regime for the child which enables her to spend more time with the Father and normalises his role as her parent and father.
I also agree that because the child has been subject to prolonged and repeated proceedings, weight needs to be placed on making orders that will minimise the chance of further proceedings. Given the findings I have made, it is unrealistic to expect that the Mother will co‑operate and indefinitely comply with orders for the child to have substantial and unsupervised time with the Father. This judgment and the Court’s orders need to serve the purpose of causing the Mother to seriously and immediately alter her attitude to facilitating and promoting the child’s relationship with the Father.
Accordingly, to achieve outcomes that are in the child’s best interests, she should be placed in the full-time care of the Father for three weeks, during which the Mother will spend supervised time with the child at the J Contact Centre. The ICL submitted that the change of primary care should be implemented with a longer period of no contact with the Mother except at the J Contact Centre. In view of the child’s age and the exceptionally strong nature of the child’s attachment to the Mother, I consider this is likely to cause excessive distress which can be avoided if a shorter timeframe is adopted. I have settled on three weeks because I consider it long enough to achieve the objectives referred to at [232] and [233] above.
After three weeks, the child will gradually return to living between the households of the Mother and Father, such that they stabilise into an equal time living arrangement between the parents. On balance, an equal time arrangement will most likely serve the child’s best interests, particularly in light of the compelling evidence from Dr Q at [169] which I accept and all other findings in these reasons.
There will also be injunctions and protective orders to address the risks of harm in each household as described in these reasons.
The Mother submitted that the Court should acknowledge the risks associated with the reports the child has made about being touched on her genitals while staying at the Father’s home. The Court has done so by finding that there is a possibility that this occurred and finding on the evidence referred to at [218] of these reasons that there is a low risk of sexual abuse occurring.
This acknowledgment has persuaded the Court to make injunctive orders for the personal protection of the child restraining:
(a)Any adult from sleeping in the same bedroom as the child;
(b)Any adult assisting the child with personal hygiene and bathing/showering. As the child is now eight years old, she is likely to be independent as to this and no evidence to the contrary was adduced.;
(c)Any person other than the Father from applying eczema creams or administering other treatment for the child’s personal care while she is in the care of the Father.
In addition, the Court will ensure that Mr L gives a formal undertaking consistent with the evidence he gave to the Court referred to at [107] of these reasons.
Further, the risk of physical discipline is also acknowledged and personal protective orders will be made restraining physical punishment or discipline by the Father or the paternal grandfather.
To address a modest concern about the standard of daily care the Father will provide for the child and maximise improvements in his parenting capacity, there will also be orders for his engagement in psychological support and requiring him to seek a referral from CSS for K Family Services and to fully co-operate with such services.
In light of the evidence of Dr Q concerning the risk to the child by exposure to Mr BB,[38] it is necessary to make an injunctive order preventing the mother from enabling or facilitating contact or communication with Mr BB.
[38] At [159] of these reasons.
The Mother made some criticism of the Father for not completing or fully-engaging in various parenting courses as ordered. The Father’s evidence was that he completed a number of courses and completed all but one workshop of another.[39] When cross-examined about this, the Father maintained his evidence, however, I was left with the impression that his knowledge and learning would benefit from refresher. Accordingly, I will make an order for him to participate in and complete an online parenting course.
[39] Affidavit of the Father filed 8 May 2023 at [225].
As the child’s time with each parent will eventually stabilise to equal, I consider this reduces the differential risks in each household, while promoting a meaningful relationship between the child and both parents and their extended families.
As the child matures and spends more time with each parent, there will be opportunity for her to reliably report to independent and objective persons, such as school counsellors or therapists, her experiences with each parent. There will be orders for continuing supports of this nature for the child and an obligation on the Father to ensure she attends as recommended.
While I accept some of the Mother’s criticism about the Father’s diligence in parenting as set out in written submissions filed 26 May 2023, I have found that with experience and without interference from the Mother, he will develop better parenting. It is critical for the Mother to appreciate that the Court has found that whatever the extent of the father’s failings in day‑to‑day care, they do not amount to unacceptable risk of harm to the child.
The orders invited by the Mother about stability in the child’s school and medical treatment have merit as it is important to provide the child with familiar surrounds and people.
As the parents will be equally sharing care of the child, it is practically necessary for the parents to live within a reasonable distance from the child’s school, where changeover of care will take place. There will be orders that the Father live within a 40km radius of the child’s school.
I decline to speak to the child to explain the Court’s orders. She has been subject to multiple interviews and examinations by various persons. Her age and maturity warrants that the orders be explained to her by Dr Q, with whom she has familiarity. Further, as an expert, Dr Q has skill and expertise to enable explanation of these orders in an age appropriate and child focussed manner.
In evaluating the evidence before the court and making findings as I have, I generally consider that all witnesses were truthful. But, a factor in my evaluations of competing evidence is the inevitable inference to be drawn from acceptance of Dr Q’s evidence about the Mother’s distorted thinking, that where her evidence is not objectively corroborated, I prefer the evidence of the Father and his witnesses who presented their evidence openly and made concessions that did not suit the Father’s case.
Consideration needs to be given to ensuring the child has some clothing and other needs for school and home in the short term. This will ensure the child’s comfort and familiarity with some necessitates in the short term as she makes her transition. I will address this with the parties at delivery of this judgment.
I anticipate that the Court’s orders and these reasons will be difficult for the Mother to accept given how she has conducted her case and the evidence she gave. Consequently, there is risk that her reactions will adversely impact on the child once the Mother returns to unsupervised time and care of the child. To guard against this risk and minimise the psychological impacts on the child, it is necessary for the Mother to continue to engage in psychological treatment and support.
Finally, because of the history of the parenting proceedings and the findings I have made in this judgment, it is appropriate and the child’s best interests to make an order for extension of the ICL’s appointment for three (3) months, subject to legal aid funding.

I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.
Associate:
Dated: 6 September 2023

File number(s):	HBC 1011 of 2020
Judgment of:	JUDGE TAGLIERI
Date of judgment:	6 September 2023
Catchwords:	FAMILY LAW – parenting – parental responsibility – where presumption of equal shared parental responsibility rebutted – where history of poor communication between parties – order that the father have sole parental responsibility. FAMILY LAW – parenting – with whom the child lives – where allegations that the child has been sexually abused in the care of the father and that the father neglects her medical needs – no finding of sexual abuse made – where allegation that the mother’s parenting style poses unacceptable risk to the child in respect of her mental health – orders that child live with the father and spend supervised time with the mother for a period before graduated progression to child living equally with both parents
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 4AB(1), 60B(1), 60CA, 60CC(2), 60CC(3), 60CC(3)(d), 61B, 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(3), 65DAC
Cases cited:	Aldridge & Keaton (2009) FLC 93-421 Dieter & Dieter [2011] FamCAFC 82 Goode & Goode [2006] FamCA 1346 Isles & Nellisen [2022] FedCFamC1A 97 Marvel & Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Slater & Light [2011] FamCAFC 1
Division:	Division 2 Family Law
Number of paragraphs:	252
Date of hearing:	22 – 25 May 2023
Place:	Hobart
For the Applicant:	In person
Solicitor for the Respondent:	Ms Watson, Tasmania Legal Aid
Counsel for the Independent Children’s Lawyer	Mrs Mooney SC, Mr Royston assisting

HBC 1011 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS SHELBURN Applicant
AND:	MR BEAZLEY Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	6 SEPTEMBER 2023