Tassou & Pandelis (No 2) - [2023] FedCFamC2F 1608

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tassou & Pandelis (No 2) [2023] FedCFamC2F 1608

File number(s): PAC 4546 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 14 December 2023

Catchwords: FAMILY LAW – PARENTING – Where this is the second set of parenting proceedings for this child and the child is now 10 years of age – Where the child is presently living with the mother and refusing to spend any time with the father notwithstanding it is professionally supervised – Where the child has expressed clear views as to her relationship with the father and has made various allegations as to the father’s conduct including that he has threatened to kill her and abused her– Where the allegations as to the father’s conduct are not found - Where the child’s expressed views do not accord with the relationship she has with the father- Where the single expert opines that the mother displays traits suggesting that the mother has a personality disorder - Where it is found that the mother is incapable of facilitating a relationship between the father and the child – Where the child has been significantly exposed to these proceedings – Where it is found that the mother presents a risk of physical and emotional harm to the child - Where it is found that the father can provide the child a more stable residence – Orders made for the child’s residence to be changed so that she lives with the father and spends time with the mother on a gradually increasing basis and eventually four nights per fortnight.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,65D 65DAA, 65DAC, 68B

Crimes Act 1900 (NSW) s10(1)(a)

Mental Health Act (2007) NSW s 32(3)

Cases cited: Whisprun Pty Ltd v Dixon [2003] HCA 48.

Division: Division 2 Family Law

Number of paragraphs: 288

Date of hearing: 6-9 November 2023

Place: Sydney

Counsel for the Applicant: Ms Messner

Solicitor for the Applicant: Consort Family Law

Counsel for the Respondent: Mr Reeves

Solicitor for the Respondent: Phillip A Wilkins & Associates

Counsel for the Independent Children’s Lawyer: Ms Shea

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

PAC 4546 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TASSOU

Applicant

AND:
MS PANDELIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

Intervener

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:
X’s Movement to the Father’s Care
1.The mother forthwith leave the precincts of the Sydney Registry of the Federal and Family Court of Australia, Sydney in the state of New South Wales.
2.That the mother do all things necessary to ensure that members of her family and persons attending court with her today forthwith leave the precincts of the Sydney Registry of the Federal and Family Court of Australia, Sydney in the state of New South Wales.
3.That until 4:00pm today the mother is to do all things necessary to ensure that neither she, nor any members or her family or persons attending court with her today, attend or come within 500 metres of the Court in the State of New South Wales.
4.That the father shall collect X born in 2013 (“X”) X from Court Child Services upon the release of X by the Senior Court Child Expert and the Independent Children’s Lawyer.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) and until 4:00pm on 8 February 2024 the Court makes the following injunctions for the personal protection of the child X born in 2013:
(a)That the mother, Ms Pandelis, be restrained from attending within 200 metres of X’s school;
(b)That the mother, Ms Pandelis, be restrained from attending within 100 metres of any residence where the child, X, and the father, Mr Tassou, may reside;
(c)That the mother, Ms Pandelis, be restrained from collecting or causing a third party to collect the child, X, from her school or any other location;
(d)That the mother, Ms Pandelis, be restrained from communicating, approaching or attempting to communicate or approach the child, X other than provided for specifically in these orders.

6.All prior parenting Orders with respect to X born in 2013 (“X”) are discharged.

Parental Responsibility
7.The father have sole parental responsibility in making decisions for X.

Live With
8.X live with the father.

Spend Time With
9.X spend no time with the mother for the first eight weeks after the making of these Orders.
10.Following Order 9 X spend time with the mother as follows: -
(a)On Saturday 10 February 2024 and each Saturday for five weeks thereafter for a period of three hours as agreed between the parties and failing agreement from 10:00am to 1:00pm, with such time to be supervised by B Contact Centre or such other service as agreed between the parties in writing.
(b)Thereafter on Saturday 23 March 2024 and each Saturday thereafter for five weeks from 10:00am to 6:00pm; and
(c)Thereafter from 10:00am Saturday 4 May 2024 to 6:00pm Sunday 5 May 2024 and from 10:00am Saturday 18 May 2024 to 6:00pm Sunday 19 May 2024.

11.Thereafter X spend time with the mother as follows, with such time to commence on 31 May 2024: -
(a)In week one from after school (or 3:00pm if it is a non-school day) Friday to before school (or 9:00am if it is a non-school day) Monday with such time to recommence on the first Friday of each school term;
(b)In week two from after school (or 3:00pm if it is a non-school day) Wednesday to before school (or 9:00am if it is a non-school day) Thursday;
(c)For the first half of the school holiday periods at the conclusion of Terms 1 – 3 with changeover to take place from the conclusion of school on the last day that students are to attend to 5:00pm on the middle day of such school holiday period;
(d)For one half of the Term 4 school holiday period as agreed between the parties in writing and failing agreement: -
(i)From the conclusion of school on the last day that students are to attend to 5:00pm on the middle day of such school holiday period in every year ending with an even number; and
(ii)From 5:00pm on the middle day of such school holiday period to before school on the first day that students are to attend on the next school year in every year ending with an odd number; and

Such other times as may be agreed to by the parents in writing from time to time.
12.For the purpose of Orders 6(c) and 6(d) above the school holiday period is deemed to commence from the conclusion of school on the last day that X’s attendance is required at school in the preceding school term and conclude at 5:00pm the day before X’s attendance is required at school in the following school term.
13.For the purpose of Orders 6(c) and 6(d) above the parents will determine the middle day of the school holiday period by dividing the number of nights during the school holiday period in two. Where there is an odd number of nights in the school holiday period, X will spend the extra night with the father in even-numbered years and X will spend the extra night with the mother in odd-numbered years.
14.That notwithstanding Order 5 above and unless otherwise agreed between the parents in writing, in the event that X is not otherwise living with or spending time with the mother or the father pursuant to these Orders X will spend time with the mother and the father on the following special occasions as follows: -
(a)On the Mother’s Day weekend, from the conclusion of school on the Friday immediately prior to Mother’s Day to the commencement of school on the Monday immediately following Mother’s Day;
(b)On the Father’s Day weekend, the X’s time with the mother that weekend will be suspended;

15.In the event that X’s birthday falls on a school day, X will spend time with the father on her birthday from the conclusion of school until 8:00pm in odd-numbered years and X will spend time with the mother on her birthday from the conclusion of school until 8:00pm in even-numbered years.
16.In the event that X’s birthday falls on a non-school day, X will spend time with the father from 5:00pm on the day before her birthday until 5:00pm on her birthday in odd-numbered years and X will spend time with the mother from 5:00pm on the day before her birthday until 5:00pm on her birthday in even-numbered years;
17.X will spend time with each of the parents over the Christmas period as follows:
(a)In odd-numbered years X will spend time with the father from 5:00pm on 24 December until 3:00pm on 25 December and X will spend time with the mother from 3:00pm on 25 December until 5:00pm on 26 December;
(b)In even-numbered years X will spend time with the mother from 5:00pm on 24 December until 3:00pm on 25 December and X will spend time with the father from 3:00pm on 25 December until 5:00pm on 26 December.

18.For the purpose of X’s supervised time with the mother pursuant to Order 5(a) above:-
(a)Within 21 days of the date of these Orders the parties are to do all acts and things and sign all documents necessary to facilitate X spending time with her mother supervised by B Contact Centre;
(b)The father is to pay all costs associated with X spending time with the mother supervised by B Contact Centre.

19.For the purpose of these Orders and unless otherwise agreed between the parties in writing changeover will occur at X’s school on a school day and otherwise changeover will occur at McDonald’s located at C Street, Suburb D, NSW.

Facetime Communication
20.From the time that X comes into the father’s care after the making of these Orders and until the commencement of Order 5(c) X shall have FaceTime communication with the mother each Tuesday and Saturday between 5:00pm and 6:00pm with such communication to be monitored by the father.
21.From the commencement of Order 5(c) X shall have FaceTime communication with the mother each Tuesday and Saturday when she is not otherwise spending time with the mother between 5:00pm to 6:00pm.
22.For the purpose of the FaceTime calls the mother is to contact X on a mobile telephone number provided by the father.

Therapy for X
23.Within 7 days of the date of these Orders the father is to do all acts and things and sign all documents necessary to: -
(a)Complete any and all intake documentation and either have scheduled or attend the first available appointment with Ms E of F Centre;
(b)attend all appointments and follow all recommendations of Ms E;
(c)use his best endeavours to ensure that X attends all appointments as required by Ms E;
(d)use his best endeavours to ensure that Ms G attend all appointments as required by Ms E; and
(e)be responsible for the costs of therapy with Ms E.

24.That the mother is hereby authorised to obtain information from any doctor, health practitioner or therapist providing treatment to X in relation to her progress until X attains the age of 14 years of age AND THE COURT NOTES that the goals of the therapy pursuant to Order 16 above is to include supporting X, the father and Ms G in her move from the mother’s residence to the father’s residence and ensuring X’s ongoing relationship with both the mother and the father.

The Provision of Information and Attendance at Events
25.That each party is to notify the other in the event that X suffers a significant illness or injury or is hospitalised whilst in that party’s care.
26.The father is to keep the mother informed of:
(a)Any major long-term decisions concerning X, including decisions in relation to her health and education;
(b)The names and contact details of any specialists providing health or medical treatment to X; and
(c)The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to X.

27.That forthwith upon the making of these Orders and continually thereafter, the father give written authority to X’s school to provide all information, including reports and notices of events and any other details of X’s progress, to the mother and to include the mother’s name on the school records as an emergency contact.
28.Both parents are permitted to attend all parent teacher interviews, assemblies and other events at X’s school which parents can ordinarily attend.

Injunctive Orders
29.That each parent is hereby restrained from:
(a)Making critical or derogatory remarks about the other parent to or in the presence or hearing of X; and
(b)Discussing these Court proceedings in the presence of or hearing of X unless under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist.

30.That both parties are restrained from causing or allowing X to attend up Ms H for any reason.

Leave to the Father
31.That the father is at liberty to provide a copy of the following documents to Ms E and any counsellor, psychologist or psychiatrist providing treatment to X in the future:
(a)A sealed copy of these Orders and reasons for Judgment; and
(b)Ms J’s report dated 10 May 2022.

32.The father be at liberty to provide a copy of these Orders to any school and any medical practitioner upon whom X may attend.

X’s School
33.That the father do all things necessary to ensure X’s continued enrolment at K School in the state of New South Wales until she completes Year 6.

Airport Watch List Orders
34.Pending further Order, the mother Ms Pandelis born in 1990 and the father Mr Tassou born in 1987 whether by themselves, or their agents be and are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act1975 (Cth), from removing, attempting to remove or causing or permitting the removal or attempted removal of the child X born in 2013 from the Commonwealth of Australia.
35.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

The Independent Children’s Lawyer
36.Save as to any question as to costs, the appointment of the Independent Children’s Lawyer will be discharged subsequent to her meeting with X and assisting a Court Child Expert to explain these Orders to her as requested by the Court on 9 November 2023.
37.The costs of the Independent Children’s Lawyer and the parties are reserved for a period of 28 days from the date of these Orders.
38.All extant applications are otherwise dismissed and the matter is removed from the pending cases list.

AND THE COURT NOTES:
A.The father has advised the Court that he will facilitate X spending time with the maternal grandfather and the maternal great-grandmother.

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 MURDOCH:
INTRODUCTION

This matter relates to the parenting arrangements for the child X born in 2013 (“X”) who is currently aged 9 years.
These are the second set of proceedings concerning X’s care arrangements. In 2018 final orders were made by consent that the parties have equal shared parental responsibility, that X live with the mother, and spend time with the father for four nights a fortnight and for one half of each of the school holiday period. (“the 2018 final Orders.”)
The parties appear to have substantially complied with these orders until July 2021 when the mother unilaterally suspended X's time with the father. X has spent only very limited supervised time with the father since this time and has spent no time at all with the father since March 2023.
Each of the parties seek orders that X live with them and that they be allocated sole parental responsibility. Despite making serious allegations against the other, neither party asserts that the other party poses an unacceptable risk of harm to X and both parties seek that X spend time with the other party, albeit with a graduating regime commencing with supervised time.
This is a difficult matter as there are risk concerns for X arising from each of the parties’ proposals. Upon a careful weighing of the risks it is found that on balance, it is in X’s best interests for orders to be made that she move to live with the father and spend graduated time with the mother. Upon moving to live with the father there will be an eight-week moratorium on X spending time with the mother to ease her transition to the father’s household. As a result of the conflictual nature of the parties’ parenting relationship an order will be made that the father be allocated sole parental responsibility.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). When considering the best interests of the child it is not necessary to make findings of fact on every factual dispute of the parties.
The mother suffered from mild to moderate medical conditions and underwent surgical procedures when she was eight years of age, in 2010 and this year. It does not appear to be contested that there is no impact on the mother’s day to day function associated with her condition. In late 2021 the mother’s doctor opined that the mother’s pre-existing medical condition renders her at an increased risk of adverse outcomes arising from a COVID-19 infection.
The parties met in approximately 2008. The father alleges that he and the mother lived together in various residences from approximately 2009/2010 for a period of three years. The mother alleges that the parties never lived together and that they were in an “on and off relationship” although the father stayed over on occasion. Neither party sought a finding in this regard and it is not necessary to make such a finding to determine what is in X’s best interests.
In 2009 a final Apprehended Domestic Violence Order was made for the protection of the mother and restricting the behaviour of the father for a period of 12 months. The father asserts this was made on a “without admissions” basis.
In 2010 the mother was taken to L Hospital by the New South Wales Police pursuant to section 22 of the Mental Health Act 2007 (NSW). The mother’s presentation is recorded as suggesting the presence of borderline personality traits.
The mother alleges that in early 2013 the parties had an argument and the father smashed the window of his car with his fist causing it to smash. This was denied by the father. The mother called the police but no further action was taken.

X was born in 2013.
The father ended the relationship in approximately late 2014 when X was a year old. Subsequent to separation the mother would only allow X to spend time with the father on a supervised basis.
A further Apprehended Domestic Violence Order was made for the protection of the mother and restricting the behaviour of the father for a period of twelve months commencing late 2014 on a “without admissions” basis.
The father initiated parenting proceedings in March 2015.
A Family Report prepared for the purposes of the first parenting proceedings recorded that the issues and risk factors in the matter included: -
·mutual allegations of family violence;
·mutual concerns as to the parenting capacity of the other party;
·the father’s reported concerns as to the mother's mental health; and
·the mother's capacity to support X having a meaningful relationship with the father.
The court child expert opined then that she had concerns as to the parties’ ability to communicate and cooperate to effectively exercise shared parental responsibility considering their apparent ongoing conflict and poor parenting relationship.[1]
[1] Family Report of Ms R dated 12 December, 2017 (Exhibit ICL 18).
In early 2015 the mother was charged with offences upon the father. The single expert states that the Police Facts tendered in support of the charge recorded that the mother made admissions to assaulting the father and throwing a cup at him. An Apprehended Domestic Violence Order was made on this date protecting the father and restricting the behaviour of the mother. In mid-2015 this charge was dismissed pursuant to section 10(1)(a) of the Crimes Act 1900 (NSW). X was present in the home during this incident. [2]
[2] Exhibit F9.
A charge laid against the father for allegedly breaching his Apprehended Domestic Violence Order was withdrawn and dismissed in early 2016.
The father commenced his relationship with his current partner, Ms G in 2015 and they commenced living together in 2017.
The mother deposes that she was in a relationship with Mr M from 2016. It is the mother’s evidence that she and X lived with Mr M and his brother in Suburb N for a period not exceeding six months.
Notwithstanding the above history between the parties, the 2018 final parenting Orders were made by consent on 5 November 2018 in the terms stipulated at paragraph 2 above.
The mother asserts that in early 2019 she commenced a relationship with Mr O.
According to the mother’s oral evidence in mid-2019 she met Mr P on an online forum.
In late 2019 an incident occurred between the mother and Mr O at their home. The mother was charged with common assault arising from the incident in late 2019. The mother entered a plea of not guilty at the Local Court at Town Q in late 2019. It is the mother’s evidence that her relationship with Mr O ended in late 2019. Shortly after this time the mother commenced counselling with Ms T, psychologist following referral from S Authority.
In early 2020 the mother pleaded guilty to the charge of common assault upon Mr O. The charge was determined pursuant to section 32(3) of the Mental Health Act (2007) NSW. The mother was released on the condition that she maintained treatment with Dr U. An Apprehended Domestic Violence Order was made for a period of one year for the protection of Mr O and restricting the behaviour of the mother.
From 26 March 2020 to 11 May 2020 during the 2020 COVID lockdown the mother unilaterally suspended X’s time with the father.
In mid-2020 the mother unilaterally relocated with X from Suburb V to temporary accommodation at Suburb W for a period of six months. X’s school was changed as a result.
In mid-2020 the mother became engaged to Mr P despite never having met him in person.
In April 2021 X commenced therapy with Ms Y a provisional psychologist at Z Health Centre.
On 24 June 2021 X attended her initial appointment with a psychologist, Ms H following referral by S Authority.
In mid-2021 the mother lodged an application with S Authority seeking counselling for X. The description included in such application is as follows:
“my daughter has been recently coming to me reporting about domestic violence she is witnessing and is showing effects of the DV and I am seeking counselling for my daughter.” [3]
[3] Exhibit ICL8.
On 31 July 2021 X spent time with the father and this was the last time X saw the father pursuant to the 2018 final orders.
In mid-2021 the mother’s application to S Authority for counselling, financial assistance and a recognition payment for the physical and psychological injuries she suffered from being a victim of domestic violence in her relationship with Mr O between early 2017 and late 2019 was refused as: -
·The only evidence to establish an act of violence named the mother as the offender and Mr O as the victim.
·The mother pleaded guilty to the charge of common assault however no conviction was recorded on the grounds of mental health.
·The mother requested S Authority to obtain her medical records from AA Medical Centre relating to domestic violence during the period claimed. The Centre advised they held no documents relating to the request.
On 14 July 2021 the mother again unilaterally suspended the time X was to spend with the father pursuant to the 2018 final orders. The father was informed of such cessation by the maternal grandfather as follows: -
Hi [Mr Tassou]. [Ms Pandelis] called […] it's the phone number on the court orders. We
were not sure if we are allowed to send [X] or not due to lockdown. They said the
current lockdown is still in place and the allowed distance to travel is 10km. They said
it isn't safe to travel the distance until lockdown is lifted again. We are going to give a
phone number for [X] so you can video chat her tomorrow (call on the days you are
supposed to see her). They gave [Ms Pandelis] a phone number to call to sort any time loss etc.
When restrictions lift. If needed.
It was uncontested that from 14 July 2021 to 15 August 2021 X had three video calls and six telephone calls with the father.
From 15 August 2021 the mother suspended all forms of communication between X and the father.
The father commenced these fresh proceedings on 30 August 2021.
X and the father engaged in two sessions of family therapy with Ms H on 15 and 26 October 2021.
On 13 December 2021 the matter was listed for interim hearing and judgment was reserved. Pending delivery of the judgement interim orders were made by consent that X was to spend time with the father for three hours each Saturday supervised by B Contact Centre and the mother was ordered to undertake hair drug testing.
On 20 December 2021 judgment was delivered and orders were made pending further order for X to spend time with the father for three hours each Saturday supervised by B Contact Centre with Ms G permitted to attend such time subject to any direction from the supervisory service, for the mother to ensure X attends all appointments with Ms H of BB Centre for such duration as recommended by her, and for the parties to enrol in various parenting courses (“the 2021 interim orders”).
The first supervised visit pursuant to the 2021 interim orders occurred on the 22 January 2022.
The next supervised visit on 29 January 2022 was cancelled by the mother on the basis that X was a close contact of a positive COVID case.
On 5 February 2022 time did not occur as X refused to separate from the mother. The father cancelled future supervised visits and X’s time with the father ceased. The father deposes that he could not financially afford to pay for the visits if they did not proceed, and told the single expert that in the end, he felt that X was showing signs of distress at changeover.
On the 25 February 2022 orders were made by consent for the appointment of Ms J as the single expert. Ms J is a forensic and clinical psychologist (“the single expert”).
In April 2022 the parties commenced family therapy with Dr CC.
On 3 May 2022 the parties participated in interviews with the single expert and the single expert report dated 11 May 2022 was released to the parties on 16 May 2022.
On 15 July 2022 the matter was listed for trial for three days commencing 13 March 2023.
On 18 August 2022 the mother wrote to the father via their respective solicitors and encouraged the father to “reconsider” his position and recommence spending supervised time with X in accordance with the 2021 interim orders.
In late 2022 the mother made an application to S Authority seeking a recognition payment for X. The basis of such application was that X was the victim of domestic violence committed by the father for the period late 2013 – mid-2021. In late 2022 a recognition payment of $5,000 was awarded.[4]
[4] Exhibit ICL 13.
On 26 November 2022 X re-commenced spending supervised time with the father at DD Contact Centre.
The final hearing of the matter was not reached on 13 March 2023 and the matter was adjourned for final hearing for four days with priority commencing 6 November 2023. By consent further interim orders were made that: -
·X spend supervised time with the father at DD Contact Centre from 25 March 2023 to 13 May 2023.
·From 13 May 2023 to 3 June 2023 X spend 4 hours each Saturday with the father supervised by either the paternal grandparents or the paternal aunt with changeovers to occur at DD Contact Centre. From 10 June 2023 this time would increase to six hours each Saturday. For the purposes of this time, the father was to file and serve undertakings executed by the paternal family members.
·The parties and X attend family therapy at DD Contact Centre as recommended by the therapist at DD Contact Centre (“the 2023 interim orders”).
On 25 March 2023 X spent some time with the father and the paternal grandparents. X requested that the supervised visit end earlier than scheduled.
On 29 March 2023 X came into the room where the father and Ms G were waiting and then ran out of the room. She refused to see the father on this date.
On 11 April 2023 X refused to enter the room where the father was waiting. On this date the supervisor suggested to the father that he try to work through his relationship with X through family therapy before resuming supervised visits. The father did not press for time on this occasion.
On 18 April 2023 after a meeting was held by DD Contact Centre with Ms H, the centre temporarily ceased facilitating X’s time with the father in the hopes that family therapy would provide a shift in X’s willingness to participate. The aim was to resume the father’s visits shortly thereafter. The mother and father were advised of this decision in subsequent phone calls. In the phone call to the father, it was noted that X’s resistance has coincided with the new orders coming into place. The father advised that whilst he was frustrated, he was willing to co-operate and understood the reasoning behind the decision. The mother advised in her telephone call that she believed X had become anxious since the orders provided for increased visits and she had become upset and frustrated. The mother advised that her lawyer did not think she should have agreed to the recent orders.
Family therapy with the father commenced in April 2023. To date the father has attended 6-7 sessions alone via video conference, the mother 3-4 sessions and X 2-4 sessions. There has not been a joint session undertaken with X and the father.
In mid-2023 the father commenced a Men’s Behavioural Change Course called “EE Program.”
In mid-2023 the mother became ill with a cold and her health deteriorated as a result. The mother was advised she would require further surgery and would be given two weeks’ notice of her exact surgery date.
In mid-2023 X wrote a message to a school friend stating that: -
·She was really upset as the mother’s illness meant she could die;
·“there” trying to make her leave the mother;
·if the mother dies her father will take her away and he abused her, touched her inappropriately and threatened to kill her; and
·The mother is with her boyfriend, but they are fighting a lot.
The school advised the mother of the message and made a mandatory notification to the FF Authority.
In late 2023 the mother was admitted to GG Hospital during which time she underwent surgery.
The matter proceeded to the final hearing on 6 November 2023. On the oral application of the Independent Children’s Lawyer prior to the court adjourning and reserving judgement, interim orders were made by consent restraining the parties from continuing X’s counselling with Ms H and discussing or allowing other parties to discuss the proceedings in X’s presence.
THE PARTIES’ POSITIONS
Following the completion of evidence, the father advised the court that he agreed to the orders sought by the Independent Children’s Lawyer together with two further orders. Thus the orders sought by the Independent Children’s Lawyer are broadly as follows: -
·The father have sole parental responsibility for X.
·X live with the father.
·X spend no time with the mother for a period of 8 weeks subsequent to the making of final orders.
·For twelve weeks thereafter the time X spend with the mother with such time to gradually increase each four-week period, commencing with a period of four weeks in which such time is supervised and concluding with overnight time on two occasions from Saturday morning to Sunday afternoon unsupervised. X thereafter spend time with the mother each alternate weekend, for half of the school holidays and during special occasions.
·Unless occurring at school, X’s transition between the parties’ households will occur at the McDonald’s located at C Street, Suburb D.
·X have Facetime communication with the mother.
·The father ensure X attend upon therapy with Ms E.
·That there be the provision of information and notification to the mother concerning X’s health, medical treatment and schooling.
·The parties be restrained from denigrating the other party.
·The parties be restrained from discussing these proceedings in the presence or hearing of X unless under the guidance of a treating medical practitioner or therapist.
During the course of submissions, the court was advised that the Independent Children’s Lawyer pressed for a further order that the father ensure X continue her enrolment at her current school until she finishes Year 6, together with a Notation that the father will facilitate time with the maternal grandfather. The Independent Children’s Lawyer did not wish to be heard against an order being made restraining the mother from attending at X’s school for a period of eight weeks if X were to move to live with the father.
In addition to the above orders the father sought orders that restrained both parties from: -
·Removing or attempting to remove X from Australia and that she be placed on the Airport Watch List to give effect to such order. It was submitted by the father during the course of submissions that perhaps such an order be made until X is 14 years of age.
·Causing or allowing X to attend upon Ms H for therapy or any other purpose.
The father consented to an order being made restraining the mother from attending at X’s school for a period of eight weeks if X were to move to live with the father.
Thus the father and the Independent Children’s lawyer seek orders that effectively reverse the 2018 final orders so that X live with the father and spend four nights a fortnight with the mother.
The mother seeks orders on a final basis in accordance with the Amended Response filed on 8 July 2022 broadly that: -
·The mother shall be allocated sole parental responsibility for X subject to providing the father with the opportunity to provide his views with respect to decisions to be made.
·X shall live with the mother.
·X shall spend increasing graduating time with the father commencing with a period of six months each alternate Saturday for a period of three hours supervised by B Contact Centre and concluding with each alternate weekend from Saturday morning until Sunday afternoon. X’s time with the father will be supervised until such time as the father completes a Men’s Behavioural Change course. Thereafter X spend time with the father each alternate weekend, for half of the school holidays and on special occasions.
·X be at liberty to communicate with the other party when she expresses a wish to do so.
·The father undertake the “Tuning into Kids”, “HH Program” workshop and “Parenting After Separation” or “Keeping Kids in Mind” courses.
·Changeover of X between the parties’ households when not occurring at school is to occur at Suburb JJ Police station or as agreed between the parents in writing.
·The parties are to engage in therapy with Dr CC for a minimum of six months.
·The parties are to contact KK Centre and engage with them if deemed eligible.
·Both parties are to ensure X’s attendance with Dr LL at Suburb MM.
·Both parties are to ensure that X has her own bedroom, bed and bedding in their respective homes.
·The provision of information and notifications concerning X’s health, medical treatment and schooling.
·The parties be restrained from denigrating the other party.
·The parties be restrained from discussing these proceedings in the presence or hearing of X unless under the guidance of a treating medical practitioner or therapist.
·The mother have sole parental responsibility for the obtaining of a passport for X, that the mother hold such passport and be at liberty to take X outside Australia subject to notification to the father.
·The father be restrained from questioning the child about the mother including the mother’s contact details.
·The father be restrained from physically disciplining the child.
·The father shall be restrained from arguing with his partner in front of the child.
·The parties continue to engage X with her treating therapist and ensure she attends all scheduled appointments.
Thus the mother seeks to reduce the time X spends with the father pursuant to the 2018 final orders from four nights to three nights a fortnight.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The father relied on the: -
·Amended Initiating Application filed 14 July 2022;
·the father's affidavit filed 28 February 2023 (with leave);
·the father's affidavit filed 13 July 2022;
·the father's affidavit filed the 3 November 2023;
·the affidavit of Ms G filed 10 September 2021;
·the Notice of Child Abuse, Family Violence or Risk filed 30 August 2021;
·the Outline of Case document filed the 5 November 2023; and
·documents tendered during the proceedings.
The mother relied on the: -
·Further Amended Response filed 8 July 2022;
·the affidavit of the mother filed 8 July 2022;
·the affidavit of the mother filed 3 November 2023 (with leave);
·the affidavit of the maternal grandfather Mr NN filed 8 July 2022;
·the affidavit of Ms OO; and
·documents tendered during the hearing.
The Independent Children’s Lawyer relied on the: -
·the Single Expert Report of Ms J dated 10 May 2022;
·the Family Report of Ms R dated 12 December 2017. Such Family Report was prepared for the purposes of the prior proceedings. All parties consented to me reading such report for the purposes of providing context to the current dispute between the parties only; and
·documents tendered during the hearing.

Whilst I have read and considered all the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all the evidence in these reasons but rather address the evidence that grounds the reasons for my decision. [5]
[5] Whisprun Pty Ltd v Dixon [2003] HCA 48.
THE SINGLE EXPERT’S EVIDENCE
A Single Expert Report was prepared for the purposes of the final hearing by Ms R, a forensic psychologist (“the single expert”). She has multiple tertiary qualifications in psychology and clinical psychology and extensive professional experience. In her oral evidence the single expert confirmed that as a forensic psychologist she is qualified to diagnose a person with a mental health disorder. There was no challenge to her expertise, and I am satisfied she is suitably qualified to provide her opinion to the court.
The single expert interviewed each of the parties, Ms G and X in person on 3 May 2022. She reviewed and considered extensive material including contact reports, the clinical notes of X’s treating psychologist, the mother’s medical and treating psychologist’s notes as well as material filed by each of the parties in the proceedings.
The single expert opined that: -
The father impressed as co-operative and forthcoming in his approach to the assessment. He appeared to answer most questions posed to him in a direct manner without evasion. He did not attempt to take control of the direction of the interview nor did he attempt to dominate in the interview. He responded to challenge with measured responses.[6]
[6] Single Expert Report of Ms J dated 10 May 2022, paragraph 111 (“Single Expert Report”).
The single expert opined as to the mother’s presentation that:
Throughout the clinical/assessment interview the mother jumped from one topic to another. She displayed notable difficulties in staying on track and answering questions directly which required her to be redirected back to topic frequently.
The mother’s indirect narrative did not impress as being a consequence of formal thought disorder, there was no thought blocking or derailment. She did however display rather circumstantial thinking, excessive semi relevant details tended to predominate her dialogue. She maintained her original train of thought but provided unnecessary detail, sometimes tangential to the subject, before circling back to her main point or being directed back to the main point.
Overall the impression was gained that much of the time the mother was trying to control heightened emotions which resulted in her speaking quickly and trying to impart information that she believed was important rather than respond to questioning directly in a measured fashion.
At other times, the mother impressed as evasive wanting to steer the direction of the interview away from topics she did not want to cover or found uncomfortable.
Her speech was delivered with normal volume, prosody was intact. The speed of her speech was not overly pressured but was rapid in its delivery. [7]
[7] Single Expert Report, paragraphs 220 – 224.
The single expert opined that: -
·If the court finds that the mother’s allegations of past and ongoing family violence perpetrated by the father to be correct, then X would not be safe in the care of the father and the mother would not be safe in trying to co-parent with him.
·If, however, the mother’s allegations of family violence perpetrated by the father are a misrepresentation or are exaggerated, then X is at risk of not having a relationship with the father who could otherwise be a stable and caring parent.
·The father did not impress during the observation as being unable to prioritise X’s needs above his own, nor did he appear to be lacking in emotional sensitivity with his interactions with her. This is a positive prognostic factor in reparative relationship work towards an outcome where X can enjoy a relationship with the father, however for reparative work to be successful several conditions would need to be met. X would be placed under more stress if improvement in X’s relationship with the father was met with increased efforts by the mother to undermine the relationship. Reparative work would also be unsuccessful if the father engages in the behaviours alleged by X.
The single expert attended court and was cross-examined. Prior to such cross-examination she had read the trial affidavits of each of the parties and their supporting witness, a text message from X to a friend of mid-2023 and the certificate recording the father’s completion of a men’s behaviour change program.
I found the single expert’s oral evidence to be clear, thoughtful and reasoned. Her oral evidence gave further insight into the reasonings and basis for her written expert opinion. She was not successfully challenged on any of her evidence. She was an extremely impressive expert witness. I give significant weight to her report and oral evidence which is discussed in more detail later in these reasons.
THE HEARING
Four days prior to the final hearing of the matter an Application in a Proceeding was filed by the mother seeking to vacate the final hearing on the basis of her health concerns. Such application was refused with the mother being granted leave to appear at the final hearing for three of the four days by way of video link. She was required to attend in person for the day of her cross examination. Cross examination of the mother continued into a second day and this occurred with the mother appearing by way of video link.
I had the opportunity to observe both parties during the four-day final hearing and took contemporaneous notes of my observations as to their evidence.
The father gave his evidence in a forthright manner. He answered each question and was not evasive in his answers in any manner. He made concessions immediately and gave evidence that may not have assisted him in his case. I found him to be a credible witness.
The father’s current partner gave her evidence in a forthright and responsive manner. She readily made concessions and was considered and candid in her responses. She was an impressive witness.
The mother presented in the witness box with many similar characteristics to those observed by the single expert during her interview detailed in paragraph 79 above. She had notable difficulties in staying on track and answering questions directly, requiring me to ask her to simply answer the question on numerous occasions but appeared to be unable to do this. The mother’s answers were nonresponsive and included excessive semi-relevant or irrelevant details. Some of her answers were completely non-responsive, for example:
Counsel: You have been charged with two incidents of assault?
Mother: I’m a [health care worker].
The mother could not recall significant events, including an engagement to be married. She had significant difficulty in recalling recent events. Her evidence was consistent that she could not recall many events from this year; constantly stating that: “I’m in a little bit of a blur this year” or “It was just a big blur”.
The mother’s evidence was at times contradictory or inherently unbelievable. She asserted she moved from house-to-house post separation to get away from the father who kept finding out where she lived, but then gave evidence that at the beginning of 2016 she lived with the paternal grandparents. The mother further deposes that she tried to leave the relationship with the father within the first three months, but the father “refused” to allow her to leave. She deposes that she ended the relationship with the father as he was having an affair yet deposes that the parties were free to see other people.
It appeared to me that the mother would appear upset simply when the questions being asked were not going to assist her case. On several occasions she told the court that she did not want to answer the question or: “I am not trained to make comments” or “I can’t answer that one. That one is very scary.” She would not make any concessions. I formed the impression that the mother gave whatever evidence she felt would most assist her case. Whilst I will make specific findings of fact based on the evidence, I approach the mother’s evidence with significant caution.
The maternal grandfather gave evidence on behalf of the mother in a forthright and candid manner, even when it may not have assisted the mother’s case. He answered each of the questions asked of him without hesitation. Surprisingly, he was not aware that the mother had been charged with common assault on two occasions. I found him to be a credible witness. His evidence at times directly contradicted that of the mother. Where such contradiction occurs I place more weight on the maternal grandfather’s evidence than that of the mother but make specific findings below.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
X’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations are the benefit to X of having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court is to give greater weight to the need to protect X from harm. In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
Each party also seeks that I make injunctions for the welfare/protection of X and in that regard my decision will be informed by the provisions of s68B of the Act.
THE ISSUES AND FACTUAL FINDINGS TO BE MADE
I accept the submissions of the Independent Children’s Lawyer that the issues requiring determination in these proceedings are very similar to those raised in the prior proceedings, being: -
·Whether X is at risk of physical or psychological harm as a result of being subjected or exposed to abuse, neglect or family violence in either parent’s household, and if so, the nature and extent of that risk and whether it is capable of being mitigated.
·The extent of each parent’s capacity to meet X’s needs, including her physical, intellectual, emotional and psychological needs.
·The extent of each parent’s willingness and capacity to facilitate a meaningful relationship between X and the other parent.
·The likely impact on X of each parent’s proposals as to her future living arrangements and time with the other parent.
·The appropriate weight to be given to any views expressed by X in relation to her living arrangements and time with each parent.
·What orders are least likely to lead to further litigation between the parties, noting that final parenting orders were previously made by consent on 5 November 2018.
Neither party submitted that there are additional issues that I am required to determine so as to make orders that are in X’s best interests.
The only findings of fact sought by the father are that: -
·The parties were engaged in a volatile relationship, with each party having perpetrated family violence upon the other.
·The mother’s allegations against the father lack credit on balance and the father’s denial is credible.
The only findings of fact sought by the mother are that: -
·There was family violence during the relationship as the father admits that it was a volatile relationship, and he has shown “emotions of anger”.
·Each of the parents love X and X loves her parents.
X
X is currently in Year 4 at K School. She presented to the single expert as a neatly dressed and friendly child who reported that she “loves school”. X reported to the single expert various anxieties including being frightened of receiving injections, frightened of fires starting and people being hurt in fires. She reported that she checks her phone charger “lots” as she does not want to start a fire, she worries that there will be a fire or car accident that will hurt her family and when she hears a fire alarm, she gets stomach aches. She reported that she gets stomach aches and headaches “a lot” and there are lots of times she does not feel hungry because of them. She is especially frightened of the dark.[8]
[8] Single Expert Report, paragraph 287.
The RCADS anxiety and depression scale for children administered to X together with the information provided by her during the course of her interview with the single expert suggested that X experiences:
situational tension and stress as a consequence of worry about separation from a significant adult figure, and free floating anxiety about a range of other issues relating to physical wellbeing of those close to her. [9]
[9] Single Expert Report, paragraph 289.
The mother deposes that X’s engagement in therapy was initiated by X. X saw Ms Y, a provisional psychologist at Z Health Centre for several sessions. Correspondence from Ms Y to the referring doctor dated 14 May 2021 states that X presented with anxious symptoms on the background of trauma from her parents’ separation and reportedly witnessing domestic violence. A note of attendance dated 30 April 2021 records X as stating to her: “Lots of information to get to you to give to court.”[10] Ms Y was not called to give evidence. I am satisfied to the requisite degree that this was stated by X as it is written on the third page of a document entitled “Initial interview (child version) under the heading “additional comment” and appears on the note in quotation marks.
[10] Exhibit F12.
Ms H, X’s current treating psychologist pursuant to a grant received from S Authority first saw X in mid-2021 and on the mother’s oral evidence X had attended regular sessions historically but she has only attended one session this year. In evidence is a letter from Ms H dated 28 October 2021 and addressed “Dear Sir/Madam”.[11] Her correspondence states that X presented to her initial appointment extremely anxious, elevated and concerned about her interactions with the father. Cognitive Behaviour Therapy Strategies and Exposure Therapy techniques were implemented, and it was her opinion that X appeared to be making steady gains with therapeutic intervention. It is unknown the circumstances surrounding such correspondence and to whom it was written. Ms H is not on affidavit and was not available for the purposes of cross examination.
RISK OF HARM ARISING FROM ABUSE, NEGELCT OR FAMILY VIOLENCE
[11] Exhibit ICL 14.
The Parties
Despite the extensive allegations as to family violence made by each of the parties against the other in their written evidence, only a generalised finding as to the perpetration of family violence was sought. Both parties accept that their relationship was volatile. The single expert’s opinion that X has been exposed to family violence during the parties’ relationship was not the subject of contest.[12]
[12] Single Expert Report, paragraph 411.
I am satisfied that X is an anxious child who appears to be experiencing situational tension and stress.
The father conceded during cross examination that he has called the mother derogatory names. In 2015 the mother’s charge of common assault upon the father arising from an incident in early 2015 was dismissed pursuant to section 10 of the Crimes Act. The records of the New South Wales Police record the mother asking, “Am I here because I bit him.” During her police interview the mother is recorded as stating that she fought back when the father tried to choke her.
I am satisfied I can comfortably find that the parties’ relationship was marked by family violence. I am satisfied and find that X has been exposed to such family violence. In the circumstances as outlined above I do not propose to address and make findings with respect to the various allegations made by the parties save for the following incidents which directly relate to the allegations X is reported to have made against the father that were the subject of cross examination. Potential risks of harm for X in the mother’s care will be discussed later in these reasons.
X’s Allegations
The mother deposes that in 2020 X started marking disclosures to her school, her aunty Ms PP and the mother’s then fiancé Mr P about being subjected and exposed to family violence in the father’s care. Upon learning of these disclosures to third parties X started to confide in the mother. The mother deposes that despite her concerns arising from X’s disclosures she continued to make X available for time with the father.
There is no material in evidence as to disclosures made by X to her school. Neither Ms PP nor Mr P gave evidence on the mother’s behalf.
The mother deposes that on an unspecified date she observed bruising on X’s leg the size of a hand palm that she reported to the police, but no action was taken. There is no evidence as to when this allegedly occurred. There are no records from the New South Wales Police in evidence as to any report made by the mother. The father was not asked any questions about this incident. I am not satisfied that the mother has met her evidentiary burden to ground any finding in this regard.
The mother deposes that following the bruising on X’s leg she began making notes of X’s disclosures to her. Such disclosures by X to the mother that were the subject of cross examination are: -
·That the father yells and swears at her when she is doing her homework, banging his hand on the table.
·The father drives aggressively and Ms G asks him to slow down.
·That when at the father’s house she hides in her bedroom as she hears screaming and banging. Ms G “Tries to stand up for herself and yell and swear at dad.” The father screams and swears at Ms G. This includes:
Dad was yelling at [QQ] for 4 days and [QQ] left and went to [RR’s] and [QQ] was swearing at [Mr Tassou] as she left.
…
[QQ] had to go to [RR’s] house and there was a lot of crying, banging, and yelling before she left for [RR’s] with a bag. [QQ] was crying and hugging me then I cried too because I was scared. I didn’t sleep that night because I wasn’t happy. [13]
·That during sports: “dad forcefully bends me back and it hurts, and he won’t stop.”
·That the father hangs her upside down from the middle of her body holding her too hard across her midsection and by her feet with her head almost touching the ground. This makes her head hurt and makes her feel like fainting.
·That upon returning home from spending time with the father X disclosed to the maternal great aunt, her mother’s partner Mr P and the FF Authority that there was a big fight at the father’s home involving screaming and swearing. X said: “…her father picked up the chair that was right next to [X] and threw it. She said it almost hit her and she was scared.” [14]
·In mid-2021 the mother overheard a conversation X had with her cousin over the phone where she said:
Dad picked up my arm and slammed it into a table during math’s and [QQ] wasn’t there to help me. Dad told me it was an accident.
[13] Mother’s Trial Affidavit paragraph 20 (m) and 20 (n).
[14] Mother’s Trial Affidavit paragraph 20(i).
The mother alleges in her affidavit that:
[X] returns home from spending time with her father exhibiting behaviours such as being afraid to see her father, nightmares, crying, bed wetting, low mood and anxiousness.[15]
[15] Mother’s Trial Affidavit paragraph 14.
A letter by Ms H dated 23 August 2021 addressed “Dear Sir/Madam” states the various concerns and feelings that X has reported to her through her therapy sessions including: -
·The time the father slammed her hand on the table and called her a liar for reporting this.
·Her father often tells her he doesn’t believe what she says which makes her feel confused and makes her question her thoughts.
·She is fearful of getting him angry; she feels unsafe alone with him.
·She has a repeated nightmare of her dad smacking her and telling her she can’t play computer games.

Ms H records her opinion that it may be in X’s best interest if contact with the father was ceased temporarily until court proceedings are finalised.[16] Two sessions of family therapy were undertaken in October 2021 as recorded above. Ms H records that X told Ms H that she really liked having the father in her session and wanted him to come all the time. She notes that the father had shown a willingness to understand and attempted to be receptive to X when she was discussing her feelings but appeared to deny X’s reported versions of events. “I never said that/or that never happened.”
[16] Exhibit ICL5.
X is recorded as having told Ms H that she feels the father is too strict; she gets stomach aches at her father’s home, she is scared of getting into trouble and making her father angry. It is further recorded that X has stated that she is worried that the father will take her away and take her mother to court. On 13 July 2021 it records that X was asked if she could think of five good memories of the father. She is recorded as saying that it is very hard as:
Because even when we are playing he makes a problem/like if we are colouring-says colour [i]n the line/….If I’m eating and im too slow- he says…eat in [SS Language]. He touches me in ways I don’t like - he holds me by the feet and holds me upside down/he thinks its funny but I don’t like it.
Says steam comes out of mum’s head and starts laughing like it’s funny….
…. he’s always on his phone…. i play with [QQ] mostly
picks me up at school – but then starts frowning everyday.[17]
[17] Exhibit M1.
The mother reported to the single expert that: -
·X had told the mother that the father scared her as he yelled at his partner “all night. She said she was petrified all night, every night, banging, screaming and crying. The girlfriend will come into her room and apologise. His girlfriend cries on [X’s] shoulder.”[18]
·X had come home with unexplained bruising when spending overnight time with the father.
·X had told the mother that the father hit her arm through a table when she couldn’t complete her homework.
·X had told the mother that the father had thrown her head into the bathroom sink while she was brushing her teeth.
·The father had thrown a chair across the room which had narrowly missed X.
[18] Single Expert Report, paragraph 190.
X was observed to be chatting to the single expert during her interview about her friends, school and cats when she interrupted her dialogue to state:
When is Dad coming. I don’t want to see him. He is abusive.[19]
[19] Single Expert Report, paragraph 268.
The single expert noted that as X began to speak about her father an eye twitch developed, with X telling the single expert that her psychologist told her that she does that when she is stressed. When asked what she was worried about, X responded: “seeing Dad.”[20] When X was asked what worried her about seeing her father, she stated that a long time ago the father had thrown a chair across the room that almost hit her. When she was asked whether the father had thrown the chair at her, X replied: “He wasn’t throwing it at anyone. He was angry.”[21] She then stated to the single expert that: “He banged my hand through the coffee table.”[22] X was then asked whether her hand had gone through the coffee table as described by her to which she replied: -
..he banged my hand on the coffee table. It felt like my bones went through my body”. When [X] was describing this event her “twitch” or tic worsened.[23]
[20] Ibid, paragraph 270.
[21] Ibid, paragraph 270.
[22] Ibid, paragraph 271.
[23] Ibid, paragraph 271.
X also alleged to the single expert that the father once shoved her head into the sink causing her to hit her head as she accidentally spat on the mirror, and that the father yells at Ms G and it keeps her awake “all night.”[24]
[24] Ibid, paragraph 272 and 273.
X reported to the single expert that she does not communicate with the father in any way as she is too scared to look or respond to his messages. The single expert then records that: -
[X] then spontaneously advised “I don’t’ feel bad saying these things, cause he is abusive to me”. She did express some concern at one point that what she was saying would be related back to her father. She felt he would be angry with her as a result. However if she does not see him again this will not represent a problem.[25]
[25] Ibid, paragraph 284.
On or around 23 July and subsequent to the single expert report interviews X wrote a message to a school friend as follows: -
Can u pls talk to me rn I’m realy upset my mum is sick and she’s having surgery really soon and she can die having it and I will be with my (grandad) and she will be with my nan but there trying to make me leave her now and there’s her bday. IDK if anyone noticed but I was getting really emotional in health because my dad abused me and I’m still in court with him and if mum died he will take me away. He threatened to kill me and he touches me inappropriately but my mum is with my boyfriend but there fighting alot do they want mum to live with nan so that can stop and I dont know what to do because I’m not going to see her through surgery ….
A mandatory notification was made by X’s school and the mother was informed. Despite telling the school that she would arrange a session for X with Ms H, the mother conceded in cross examination that she has not done so – in fact the mother has taken no action with respect to this message at all; she has not even spoken to X about it. Her stated reason for not having done so in cross examination was that she has been unable to drive. The mother did not want to ask the maternal grandfather to take X as “he does so much for us already.” I find this evidence of the mother puzzling. I do not accept that X was not taken to see Ms H as the mother could not drive. This message was sent prior to the mother’s admission to hospital. The maternal grandfather clearly provides extensive assistance to the mother in caring for X. I do not accept that he would not have driven X if asked to do so. I cannot understand why, if the mother believes the extremely serious allegations made by X in this text message, she did not at the very least seek assistance for X as she had been so willing to do previously.
It was the mother’s evidence in cross examination that at the beginning of this year the maternal grandmother told her that X had alleged that the father had threatened to kill her. She conceded that this was not in her affidavit, but she was sure the maternal grandmother would have reported it to “some sort of authority”. There is no evidence of any report being made by the maternal grandmother in this regard. The maternal grandmother is not on evidence.
The mother would not concede that there was anything in her household that would cause X concern but eventually conceded that it was possible that X was worried about being taken away from the mother. Whilst there had been disagreements amongst the maternal family, these disagreements were about where the mother was going to stay during her surgery - which was due to take place some two months later. The mother denied that X has overheard any talk of her dying and said that X is afraid she is going to die as “she knows it’s serious…she ran through it with her therapist.” To the question of whether she thought X is capable of not telling the truth, she mother’s clear evidence was that she believed her; “she has nothing to lie about she is just a child.” The mother could not concede that this message arose because X was worried or scared. The following exchange took place:
Ms Shea: It must be because he has done those things?
The mother:: I’m just going to say yes.
Ms Shea: You need to tell the truth.
The mother: It’s not because of my sickness.
The single expert was concerned that if the mother has accepted the allegations made by X in this message without basis or previous indicators:
…it does make me wonder why these allegations would just be accepted.
In her oral evidence the mother confirmed that she accepts the allegations as made by X including that the father smashed X’s arm into a table, threw a chair at her and forcefully bent X’s back and hurt her. The mother does not believe that X has exaggerated her reporting. Then the following exchange took place:
Ms Shea:        Do you believe father threatened to kill her?
The mother:     That’s hard to answer.
Ms Shea         Try your best.
The mother:     I want to believe everything she says.
Ms Shea:        That wasn’t my question
The mother:     I can’t
Ms Shea:        Why can you answer the others?
The mother:     That one is scary.
Ms Shea: Is it that you’re not sure she’s telling the truth. Do you find it difficult to believe she has lied?
The mother:     It’s the context, not about lying.
Ms Shea: Can you think of any reason why she might not be telling the truth about these allegations?
The mother:     I can’t imagine why she would lie.
Ms Shea:        Not any reason at all?
The mother:     No.
The Father’s Response
The father clearly and firmly denies all the allegations made by X and the mother as to his conduct. In cross examination by the mother the father: -
·Clearly and firmly denied that he has ever slammed X's hand on the table. He stated that he had apologised for the accident and deposed that he got up on one occasion to help X with her homework, fell over and landed on her hand on the table. Ms G was not at home when this occurred. He conceded that he said that the assertion was a lie to X during the joint therapy session with Ms H but denied that he directly accused X of lying.
·Denied ever throwing a chair. He deposed that on one occasion he got up from a chair and it got knocked over as he is heavy, and the chairs are light.
·Denied ever holding X upside down.
·Conceded in relation to helping X with her homework that X possibly feels like he is criticising her and is worried that he might do so. He conceded that he has shown anger to X on occasions relating to her homework or associated with her school. He has shown this anger through frowning or having an upset face and an elevation in his tone of voice. It is possible that X may feel that he is too strict.
·Denied telling X that she must colour within the lines and that she's eating too slowly. He accepts that it is possible that X is telling the counsellor that he is too strict. He denied that he has ever smacked, or threatened to smack, X.
·He concedes that during his time with the X he would be on his phone as he was doing work emails, but it was not true that it was all the time.
·Conceded that he has had arguments with his current partner with a raised voice and that X would have been present during these occasions and thus it was possible that X was aware of these interactions. The father accepted that X may have been scared if she heard arguing. X has complained of a sore stomach to him.
·Denied that he has ever said to X or in X’s hearing anything about steam coming out of the mother's head.
·Denied that he forcefully bent her back during swimming lessons.
Ms G told the single expert that she and the father do bicker though “not a lot”. They do raise their voices at each but not frequently. There is no screaming. She advised that X’s allegations that they fight, argue and that Ms G becomes distressed is not accurate.[26] She further reported that there had not been a chair throwing incident to her knowledge and no unexplained damage to their home. This evidence was confirmed by Ms G in cross examination.
[26] Single Expert Report, paragraph 245 and 246.
Findings
As stated above, I found the oral evidence of both the father and Ms G to be credible and reliable. The father was firm and unequivocal in his denials of the perpetration of family violence towards X. He further denied any of the allegations pertaining to his conduct including driving aggressively. He provided plausible explanations as to the allegations that he threw a chair and slammed/banged X’s hand through/on the glass table.
Ms G appeared to be genuinely shocked at the mother’s allegations as to disclosures made by X concerning the father’s household. Whilst the single expert is not the arbiter of fact, she opined that Ms G did not provide any information suggesting that her relationship with the father is characterised by or contains family violence or high levels of acrimony as X has alleged. She felt that a factor strengthening Ms G’s account was that she remained child focused during her interview; she was concerned about the strain experienced by X in this ongoing dispute and attempted to make sense of X’s perspective, though could not agree with her allegations.[27]
[27] Single Expert Report, paragraph 404.
When asked by the single expert about her use of the word “abuse” or “abusive” and her understanding of what these words mean, X stated that: “No one told me the word. I’ve been through so much I learned the word.” The single expert stated that X was unable to provide a definition or meaning of these words.[28] When asked during the course of her oral evidence what weight she gave to what X reported to her, the single expert stated that:
I asked [X] for details – the type of questioning that non-leading questioning, but details about these alleged events and that’s probably why ‘through’ the coffee table and ‘on’ the coffee table is relevant. Because when I said, “right through the coffee table?” She revised it to “on” but still kept the dramatic effect I suppose by saying it felt like the bones went through my body. It was very dramatically told but when I asked for details of the chair being thrown, because I think she also alleged at one point that he threw a chair at his current partner. They were allegations but she could not tell me any details that would lend weight to credibility of those allegations.
[28] Single Expert Report, paragraph 286.
The single expert felt that it was relevant that this message was sent in July and X had not seen her father unsupervised:
I think it can be reasonably assumed that any alleged abuse that occurred did not occur in recent times. [X] did not disclose anything of a child sexual abuse nature to me. I can say that possibly she did not feel comfortable in doing so but she did talk about abuse but was unable to tell me what abuse means and I tried to get details of incidents [X] said where she said her father abused her but she was unable to provide me with details of these events… I am concerned that these allegations that came out in the SMS are reactive to a fear of her losing her mother and a fear that she appears to be very aware of the court proceedings and possible outcomes and that could have been a motivating factor to her making those allegations against her father because she has to justify why if anything happens to her mother she can’t go to him. But whenever a child makes allegations they need to be taken seriously.
The single expert further opined that when the events described by X were carefully reviewed with her, the impression gained was that incidents may well have occurred which have then been exaggerated by X in terms of their severity due to both covert and overt factors and influences. The covert factors may be related to X’s anxiety as this can cause a person (including a child) to be hyperalert to harm and perceive situations or stimuli as being more threatening than they actually are, “A situation that does not pose significant threat can be misinterpreted and consequences can be overstated or over estimated.” Thus, events can be interpreted through a “lens of potential harm”, particularly if issues of intentional harm are raised or canvassed. The single expert further opined:
Coupled with this can be consolidation of ‘recollection’ of the perceived harmful events to fit a narrative which justifies avoidant response. If a child is repeatedly questioned about an event, they can begin over time to incorporate distortion which validates their response. This can especially be the case where adults are either directly challenging their account or feeding the anxiety by suggestion.[29]
[29] Single Expert Report, paragraph 397.
I accept the father’s denials of the allegations made by X and his plausible explanations for the alleged events. I am not satisfied to the requisite degree that the father has acted in a manner alleged by X other than in the ways in which he has conceded: by raising his voice and making X feel overly criticised whilst doing homework. I accept that it is probable that there is some truth in each of the complaints made by X, but each incident or event has become highly exaggerated to the point where it has taken on a sinister or violent meaning. A clear example of this is X’s complaint that the father “forcefully bends me back and it hurts and he won’t stop.” It is clear from the differing versions of this complaint made by X and the father’s evidence that the father has bent X’s back during sports lessons; a normal action to undertake. There is no evidence of any concern of complaint being made by a sports instructor as to the father’s actions in this regard.
I am unable to make a determination on the evidence as to the cause of X behaving in such a manner but I am concerned that the mother does not accept that there could be any other plausible explanation for X’s allegations other than that they occurred.
The single expert opined that X appeared healthy and although the father has raised issue with the care the mother has provided, X did not impress as having suffered from neglect.[30] I accept this unchallenged evidence.
[30] Single Expert Report, paragraph 413.
X’S RELATIONSHIPS AND EXPRESSED VIEWS
X’s expressed views and her relationship with significant people in her a life is a significant issue for determination in this matter.
It is uncontested that the mother has been the primary carer of X subsequent to the parties’ separation, noting that X was only young at this time. X has not spent any unsupervised time with the father since July 2021 and has not spent any time in any form with the father since March 2023. I turn first to the evidence of records of X’s supervised time with the father in circumstances where their contents are not the subject of dispute.
The “B Contact Centre” notes for 22 January 2022 records that X was initially distressed and cried about attending the visit but settled whilst walking to the residence and was excited to see the father and Ms G and “they shared hugs and kisses.” It records that:
[Mr Tassou] positively interacted and engaged with [X] throughout the visit. They had a variety of conversations. They played games and completed art and craft activities together. [Mr Tassou] provided [X] with drinks and lunch. [Mr Tassou] managed the end of visit well. Overall, [X] was happy, and content and the visit appeared to be a positive one. [31]
[31] Exhibit ICL3.
The following week was cancelled by the mother who alleged that X was a close contact of a positive COVID case.
The records for the next occasion on 5 February 2022 records that:
[X] repeatedly said she didn’t want to attend the visit and appeared distressed and cried….She said her father abused her and she didn’t feel safe. [32]
[32] Exhibit ICL4.
When the supervisor reminded X of the great time she had at the previous visit, X said:
she was faking it and pretending to be nice to her father. She said her father gave her googly eyes and she felt like she had to give him a hug.” [33]
[33] Exhibit ICL4.
The mother cancelled the visit on this occasion due to X’s distress.
The father deposes in relation to this occasion that upon arrival X was highly agitated and reluctant to separate from the mother. “I was worried for [X] seeing her so unnaturally distressed.”[34] The father was concerned about X’s mental state, and it became financially unsustainable for him to continue to pay $400 per weekend for supervision for a “slim chance” to see X. The father felt he had “no choice” but to cancel future visits.
[34] Father’s Affidavit, paragraph 287.

The mother conceded in cross examination that she has made a number of decisions without consulting the father, for example moving to Suburb W. Her evidence was that she did not ask for the father’s opinion about this proposed move due to “circumstances and me having to move” but would not tell the court what those circumstances were as “it’s a personal family matter.”
A further example is the mother arranging for X to undertake counselling without consulting the father. I do not accept the mother’s evidence that she was advised by medical professionals not to do so as it is inherently unbelievable. I accept and find that this conduct is demonstrative of the mother’s inability to recognize that the father has any role to play in X’s life. Notably X informed the psychologist that information needed to be gathered for court. The single expert opined that X is absolutely aware of the proceedings and had specific messages to give to the court with respect to her wishes as discussed above.
Of concern was the mother’s oral evidence that she has missed some appointments with the family therapist, and she could only go once a month. Whilst sitting in the witness box on day two of the hearing at approximately 3:10pm the mother confirmed that X had an appointment that day at 4:30pm. The mother was unable to provide a reasonable explanation as to why she hadn’t made appropriate arrangements for example for the maternal grandfather, to take her:
The mother: I can’t answer this I feel uncomfortable.
Ms Shea: What do you mean?
The mother: I don’t know how to explain I’m having difficulty healing and doing everything.
The mother then conceded she had made a mistake, and she should have done something about the appointment that day.
The single expert clearly opined in her oral evidence when asked questions by counsel for the mother that the father appeared to be more willing to facilitate a relationship than was the converse. I accept this evidence.
I thus accept and find that both parties have demonstrated shortcomings in their ability to facilitate a meaningful relationship between X and the other parent but that the father appears more willing to facilitate a relationship than the mother.
The likely impact on X of each parent’s proposals as to her future living arrangements and time with the other parent.
This is a significant issue in this matter. As the expert opines, there are significant risks involved in the father's proposal for a change in residence, especially given the strength of X's alignment with her mother (regardless of how that alignment has come about) and the sporadic nature of X's time with the father subsequent to July 2021.
The single expert opined in this regard that:
·There is the risk that if the mother perceives the child strengthening her relationship with the father the mother will interpret this as the child rejecting her and may either reject the child or increase her efforts to win back the child’s allegiance.[75]
·The father impressed as “hurt” by X’s allegations against him. He would need assistance to put this hurt behind him and find a way to encourage her trust in him. Focusing on X’s anxiety and any distress she is experiencing regardless of the cause (allegations) would be imperative for X to feel confident with the father.[76]
·In the observation conducted the father did not impress as unable to prioritise X’s needs above his own or as lacking emotional sensitivity in his interactions with her. This would be considered a positive prognostic factor in reparative relationship work towards an outcome where X can enjoy a relationship with the father.[77]
[75] Single Expert Report, paragraph 432.
[76] Ibid, paragraph 443.
[77] Ibid, paragraph 444.
The single expert further opined that it is likely to be stressful for X to change residence but in her observations where she was able to interact with the father, it might suggest that a removal of the stressor may mean that she may adapt well. The evidence provided to her by way of the contact reports gives her some confidence that this would be the case.
Whilst the father has not thought through the potential impact on X of such a big change the single expert opined that most parents have not “thought it through” on the level that professionals do. The single expert opined that parents can be up to speed quite quickly as to what they can do, say, behave and the environment they can create to make the situation less problematic. The single expert opined that the father was empathetic and sensitive having regard to the information produced under subpoena by the contact centre. This gives both the single expert and the court some confidence that whilst the father has not been as proactive as he ought to have been in the preparation of the orders sought by him, he will likely approach the situation with empathy and sensitivity having regard to X’s emotions.
There does not appear to be any practical difficulty in X spending time with each of the parties. It appears that it would be a financial issue for the father if he were to be responsible for the costs in any form of supervision of X’s time with him if such time were to not proceed.
What orders are least likely to lead to further litigation between the parties
This is the second set of proceedings involving the parenting arrangements of X. Having regard to my findings made above, I find that it is highly improbable that the mother will be able to comply with the orders sought by her as to the regime of time X is to spend with the father. I accept that submission of the Independent Children’s Lawyer that there is no factual basis to suggest that anything would change with a new set of orders being made for X to spend time with the father. The mother was not able to give any insight as to how she would get X to spend time with the father:
Ms Shea: How are your orders going to work?
The mother: Just follow the order.
In circumstances where the parties have individually attended multiple sessions of family therapy and X has continued to express an increasing resistance at spending time with the father, the mother’s lack of insight into the purpose of family therapy was evident:
Ms Shea: Has anything changed since March?
The mother: Only family therapy.
Ms Shea: Do you think Family Therapy has achieved anything?
The mother: I don’t think it’s been long enough.
The risks arising from X continuing to live with the mother as found above would likely give rise to further litigation if X were to remain in the mother’s care. The orders sought by the mother provide for a similar arrangement to the final parenting orders of 2018 save for that the father would spend 3 nights per fortnight with X instead of 4 nights per fortnight. Given the situation that the parties have now found themselves in, I have little confidence that a regime of orders as sought by the mother would prevent the parties from engaging in further litigation.
PARENTAL RESPONSIBILITY
As both parties have conceded that the relationship was marked by family violence, the presumption that it is in X’s best interests that the parties have equal shared parental responsibility is rebutted.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. When asked about a time when she could communicate with the father the mother responded “never”.[78] The father reported to the single expert that he does not believe that he can communicate effectively with the mother, he “has not done so in the past and will not be able to do so into the future.”[79] Having regard to the findings of family violence made and the distrustful and conflictual nature of the parties’ parenting relationship I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. This appears to be conceded by each of the parties who both seek that they be allocated sole parental responsibility. I am satisfied that sole parental responsibility should be allocated to the party with whom X is to live.
[78] Single expert report, paragraph 205.
[79] Single expert report, paragraph 77.
LIVE WITH ORDERS
Various options were explored by the Independent Children’s Lawyer with the single expert other than the drastic change of her residence.
Option 1: That X Remain Living with the Mother
The single expert was clear in her evidence that if the factors that are leading X to reject the father are not genuine, then attempts to have X spend time with the father will lead to a stressful relationship with the mother as X feels the need to adopt the position she has to keep the mother happy. Children at a very young age can be aware of their need to align their perspective with a parent who is a black and white thinker as they see everyday examples of what happens to others when they do not agree. Thus the risk is that X will do or say whatever is necessary to keep the mother happy and aligned with her. I accept this evidence
I have serious concerns as to the correlation between the mother’s evidence and the submissions made on her behalf to support the orders that she asks me to make. They are incongruent. The mother alleges in her affidavit material extremely serious acts of family violence perpetrated by the father against her prior to the making of the current final parenting orders. Such allegations include the perpetration of physical and sexual assaults and coercive and controlling behaviour. The mother’s allegations as to the father’s conduct both towards her and X and X’s reporting of same have been continuous - the allegations in this matter are not new. The mother’s clear and unequivocal evidence is that she believes that the father has physically assaulted X on two occasions and that the father has touched X inappropriately. These are extremely serious allegations. Despite this belief, the mother asks this court to make orders that after a period of time X spend unsupervised time with the father. Her submissions to the court were that the process of family therapy should be allowed to continue and “given a chance” rather than a change of residence. The mother alleges that the father has abused X and X does not want to see him, yet seeks a finding that X loves her father.
My concern was raised with the single expert and the following exchange occurred during the course of her oral evidence:
Her Honour: Does it cause you concern that it is the mother’s evidence that she accepts all of the allegations that have made by [X] with respect to the father and most particularly the assertions contained in the latest message that she sent to her friend about the father threatening to kill her and touching her inappropriately? Her evidence is that she accepted that, and then seeks orders from this court that the father spend time with [X] moving to unsupervised overnight time. Does that disparity in what it appears to be the mothers beliefs as compared to the orders she is seeking – does that cause you concern?
Single Expert: It does because it’s a clear contradiction and it would suggest to me as a psychologist that one of those two propositions is not actually held – either she believes the abuse or she believes it’s okay for [X] to spend time with the father, so one of those propositions I think the mother would be more likely to go with on the basis of what she thinks would be achievable
Her Honour: So is it your view that those two propositions simply cannot stand together?
Single Expert: Not if a parent cares about a child, no. So if you’re willing to believe allegations of serious abuse to say that it is then okay for the child to be with an abuser – it contradicts itself.
It was the mother’s evidence in cross examination that she is seeking supervised time for 6 months so that X can be eased into time with her father which and this time would be supervised for her safety. When asked by the Independent Children’s Lawyer what was going to change after 6 months her response was “Maybe the courses he is doing, I’m hoping for change for X.” The following exchange then occurred:
Ms Shea: What are you hoping will change such that after 6 months she will be safe to spend unsupervised time with her father?
The mother: I hope it changes so she can safely and happily come back telling me good things. Happy things.
Ms Shea: And if she doesn’t?
The mother: I’d be concerned.
Ms Shea: But the orders you propose go automatically after 6 months to unsupervised time?
The mother: That’s the hope and the aim.
Ms Shea: And ultimately the arrangement you propose is only one night different from what were the orders in 2018? The 2018 orders were for 4 nights a fortnight?
The mother: Yes.
Ms Shea: And ultimately you propose 3 nights a fortnight.
The mother: Yes I see that is quite similar.
Ms Shea: So what’s the benefit to [X] of the arrangement you ultimately get to in your current proposal compared to what it was in 2018?
The mother: I guess I went off how I used to see my own father. I guess when I was her age and that worked for me so I guess I’m kind of looking from that perspective. I used to see him fortnightly.
Ms Shea: Is that seriously your answer?
The mother: I don’t know how we came up with it. Me and my lawyer just came up with that arrangement.
Option 2: To cease time with the father
To the proposition that one of the ways in which to stop the stress for X is to stop the time with the father, the single expert opined that this option would provide X with some immediate relief, but there can be later regret that the relationship was abandoned. It would have long term consequences including: -
A Fracturing of her relationship with her father, a fracturing of her relationship with the father’s partner which was reported as being close in the past. There is also the potential fracturing of other relationships if the mother, the other parent in this case, conducts volatile all or nothing relationships. – any relationship that [X] forms for eg with the mothers new partner or a new partner of the mother, that could be suddenly terminated, there will be no security that relationships will be ongoing.
…
In relation to the mother’s post-separation relationships, the single expert opined that the consequences for X in the mother continuing this pattern of her interpersonal relationships whilst not spending any time with the father is that:
[X] cannot become invested in any of those relationships because they may well not become permanent.
[X] is more likely than not to learn that relationships are painful things that end with acrimony. They are not long term and they are not supportive and that reduces a child’s ability to form the necessary psychosocial supports and relationships going into the future that are necessary for psychological health and wellbeing.
Option 3: For X’s Changeover to occur at school
One proposition put to the single expert by the Independent Children’s Lawyer was for changeover of X between the parties, in the event that X continues to live with the mother, to occur at X’s school. To this proposition the single expert opined:
No.
…
It’s the messaging that is probably going on which explains [X]’s refusal/rejection behaviour. It’s the messaging that is is feeding the need to refuse or reject the relationship with her father. It’s not contingent on the child being picked up from a neutral location.
The single expert identified that the risks associated with this proposition were that in addition to X becoming averse to attending school that:
The child starts not being at present on the Friday when the collection is meant to take place and the child misses a lot of school.
Option 4: For X to live with the father
In relation to the father’s proposal for X to live with him and spend unsupervised time with the mother following an 8-week moratorium, the single expert was asked to opine as to whether any risk arises in X refusing to come back into the father’s care after spending unsupervised time with the mother or whether a risk of the mother retaining X may arise. In this regard the single expert opined:
That can always happen. Individual factors have to be taken into account. But when relocation of a child’s residence is considered by the court, so it’s sometimes better to have a graded return rather than 8 weeks no contact and straight into 4 days – because, a child that is going to feel loved and secure and attached in her new residence is less likely to refuse to go home after a visit with who was whom the preferred parent – it just depends on how much pressure is put on the child.
It was put to the single expert that X’s ‘black and white’ view of the world would need to change in order to make such transition as seamless as possible. The single expert agreed that X’s view would need to shift. The single expert then raised a possibility that X effectively change her allegiance as a coping mechanism:
I’ve seen it happen. People’s coping strategies change over time and sometimes it takes a while to adopt, for a person that has been used to black and white thinking, to adopt a more nuanced perspective of the world, and sometimes rejection can turn into approval and it’s thrown on its head.
The Independent Children’s Lawyer raised the possible risk of X attempting to physically run away from the father’s residence. The single expert opined that such behaviour tends to occur in older children who have experience in transporting themselves around and that X is probably under the age of or state of development of having to be concerned about the possibility of her running away.
The single expert did not doubt that the transition would cause X stress but further noted that:
[X] is already under stress. So, it’s likely to manifest as it is now.
…
From the time that I saw her, I would expect her to be frightened and unsure for a period of time, hopefully until she adapts, raised emotions, there may be some minor problems with behaviour, and by minor problems I mean acting out her anxiety so temper tantrums and things like that.
The single expert agreed that it is a positive sign in X’s situation that there is no evidence of her being a child with any chronic behavioural issues. The single expert then suggested that X appears to be generally compliant other than spending time with the father. The single expert commented that X not wanting to spend time with the father could in any event be interpreted as her being compliant.
I am satisfied that the father has shown that he has the capacity to contain his emotions and the single expert opined that this will be required if X is to come into his care. The single expert opined in her oral evidence that it will be important for the father that there is no reactivity in his approach to X. The single expert commented that children in relocation situations may start to show defiant behaviours such as refusing to eat or refusing to comply with instructions. In addition the single expert provided some examples of the strategies the father will need to implement in these circumstances, being:
It's no big reaction – it’s calm, quiet, but still caring. Acknowledging that the child is hurting but not enforcing the same level of compliance that would be expected for a child’s behaviour 6 months or 12 months down the track, giving them a bit of leeway.
The single expert was asked whether it was her view that the father has the capacity to contain her emotions in this way and her evidence was insightful:
He contained his emotions, and not in a bad way, during the observation period with me. A lot of parents would have found that very hurtful. That ultimate rejection at the end. He sat in his chair as was negotiated. He didn’t attempt to bend that rule. He engaged well and empathically and that was what I read in the supervision notes as well. He knew how far to push and didn’t push too far. He didn’t let his own emotional needs supersede what was agreed or what [X] expressed.

The single expert conceded in cross-examination by the mother that X will feel anxiety about potentially losing the love of her mother given her experience of the mother’s dichotomous world view. In saying this the single expert opined that it would be up to the mother to assure X that she realises that there would still be the potential for a good relationship with the mother.
Determination as to with whom X shall Live
It is uncontested that the mother has been X’s primary carer. The mother’s proposal will continue a known parenting arrangement for X. The father has had limited time with X subsequent to the parties’ separation and his ability to parent her as the primary carer is untested.
Whilst I have given little weight to X’s expressed views as to where she is to live, a change of residence for her will require her to process arrangements that she has clearly stated she does not desire. X’s movement from her mother’s household to her father’s household will likely cause her distress and she will undoubtably miss her mother. There are concerns as to the father’s ability to manage this distress and X’s reactions.
I accept the Independent Children’s Lawyer’s submissions that it is quite unbelievable that Ms G did not know about the father’s proposal that X live with them but accept that whilst Ms G had not had a great deal of time to process the orders sought by the father she presented as an impressive witness who would likely be a protective factor in the father’s household. I further accept that Ms G’s health concerns may put further strain on her relationship with the father and X.
I am satisfied having regard to my findings made above that the father has displayed by his actions that he has shown he has the requisite sensitivity and empathy to support X appropriately should she change residence.
The risks associated with the proposal of the father and the Independent Children’s Lawyer need to be balanced against the ongoing risks to X in the event that she is to stay in the mother’s care. I have found that the mother’s parenting capacity presents a risk of physical and emotional harm to X. If X were to remain living with the mother there is the almost inevitable risk of absence of any relationship with the father.
Balancing these competing risks, I am satisfied that it is in X’s best interest that she moves residence to live with the father.
The mother will be understandably very distressed at my decision. There is a significant question mark as to the mother’s ability to contain her emotions and be the contact parent now that X is to live with the father. If she cannot manage her own emotions then X will find it very difficult to move between households. It is understandable that X is going to be very worried about the mother and it is going to make this process difficult for X. If the mother can reassure X it will be to her credit. This concern is consistent with the evidence of the single expert:
There is the risk that if the mother perceives the child strengthening her relationship with the father the mother will interpret this as the child rejecting her and may either reject the child or increase her efforts to win back the child’s allegiance.[80]
[80] Single Expert Report, paragraph 432.
I hope that the mother obtains the external assistance as she may need to assist her in coming to terms with the decision I have made as this will also be of assistance to X.
Spend Time Orders
The single expert opined and I accept that given the alignment evident between the mother and X a change of residence will need to be managed carefully to avoid X becoming increasingly anxious and distressed.[81] The single expert was firm in her position that following the period of no face-to-face time with the mother a move to supervised time for a period would be “excellent.”
[81] Single Expert Report, paragraph 434.
In her oral evidence the single expert suggested a gradient return following the 8-week moratorium on the mother’s time. The suggestion of the single expert during her oral evidence would be a regime of daytime visits on the weekend for a few months before moving to overnight time for a further few months before the final stage of the father’s proposal were to come into effect. The single expert further opined that X communicating with the mother by phone during the 8-week pause of the mother’s time may reassure X however such time should occur by way of Facetime as children tend to be more receptive to Facetime calls as opposed to telephone calls.
I am satisfied that orders should be made for X’s reintroduction to the mother to be on a gradual basis commencing with supervised time for a period of five weeks and thereafter on a staggered increasing basis to reduce the risk of X refusing to return to the father and to ensure that X maintains a level of continuity in her attachment. I am further satisfied that X should communicate with the mother via Facetime twice per week commencing immediately upon X’s move to live with the father.
Family Therapy
The father’s evidence is that there does not appear to be a plan with respect to progressing the current family therapy to facilitate X meeting the father in person.
The single expert was firm and unequivocal in her evidence that there is no point in continuing any family therapy as it has been occurring since April of this year and it has not progressed X’s time with the father as: -
It’s been tried and it’s failed and all the other indicators that have gone along with that including what appeared to be an increased resistance in refusal dynamic developing, would suggest the harder she is pushed into trying reconciling these irreconcilable relationships, the more stressed she will become.
The single expert agreed that this is particularly clear in the message sent by X to her friend in mid-2023 which appeared to be an escalation of her resistance to the father and her past allegations.
X’s Therapy
The proposed order will see a significant change in the current arrangement in that X will commence to live primarily with the father after having spent only supervised time with him since March 2022 and not having seen him at all for over a year prior to that.
The single expert records that a report of Ms H’s annexed to a prior affidavit of the mother recommended that there be no time between X and the father until family court matters were resolved to remove stress from X and that the father undertake a number of courses to assist building a bond/connection with X and to help manage her emotions. The single expert notes that Ms H did not indicate in this report what role the mother should play or assistance the mother should receive to improve the parties’ parenting relationship and its effect on X.[82] The single expert opines that Ms H was working from a position of completely accepting X’s version of events and that: “If the father attempted to address the veracity of the child’s account, he was noted to be devaluing the child.”
[82] Single expert report, paragraph 313.
At the time X was assessed by the single expert she was being treated by Ms H. She had read her notes. The starting point for the therapy provided by Ms H (noting that the single expert is a provider in this scheme) is the presumption that the client has been a victim of violence, and it is not a question of whether victimisation has occurred. Her notes are consistent with this approach. The single expert opined that such therapy does not appear to have been of any assistance to X in maintaining a relationship with the father. The single expert was of the view in circumstances where X has been seeing Ms H for two years and it is not working that this should be altered. Thus the single expert opined that X continuing treatment with Ms H causes her concern.
The single expert’s oral evidence was that there will be moments of anger and resentment from X towards the father. To combat this the father will need to be quiet, calm, secure, reassuring, and keep X’s routine the same as much as is possible. The single expert supported therapeutic support if it is geared toward that defined outcome. The single expert further opined that there are options for X to speak with a psychologist or psychiatrist at providers such as AF Centre. In addition, the single expert in her oral evidence noted that there are books on how to help children deal with big changes in their life. The reaction of children to a relocation situation is likely to be similar to a grieving process after the death of someone close to them in that it is a sudden change which can cause a situational crisis for X.
I am therefore satisfied having regard to the drastic change in X’s circumstances that orders should be made for X to attend upon Ms E for the purposes of therapy with the goal of such therapy to support X in the transition to the father’s residence and to ensure X’s ongoing relationship with the mother and the father.
Injunctive Orders
Having regard to the findings made above, I am satisfied that it is appropriate for the welfare of X that injunctive orders be made on a final basis restricting her attendance upon Ms H having regard to the purpose of that therapy.
Ancillary Orders
The father agreed that an order be made that if X were to live with him it would be important for her that she continue in her current school for at least the remainder of this school year. Accordingly to ensure that X has some continuity I will make an order to X’s enrolment at K School will continue until she completes year 6.
Whilst the maternal grandfather has displayed some limited insights to some of his behaviours and attitudes, he is clearly a very significant person in X’s life and has been a source of some stability for her. The single expert opined that it is important for X to maintain as many relationships as she can that are not harmful to her. Whilst I cannot make any orders with respect to the maternal grandfather as he is not a party to the proceedings, I accept the father telling the court via his counsel that he will ensure that X is able to continue her relationship with the maternal grandfather who is clearly a significant person in her life and I will make a Notation to this effect.
Irrespective of X’s living arrangements the father seeks that X be placed on the airport watch list. The mother seeks orders that she be solely entitled to obtain a passport for X and be able to travel overseas with X without any notification to the father. Having regard to the significant change in X’s resident parent and the highly conflictual nature of the parties’ parenting relationship, I am satisfied that it is in her best interests that there is an assurance that X remains within the jurisdiction. Each party will be at liberty to apply for X to travel overseas in the future if they wish to do so when appropriate safeguards can then be put in place. I will make the orders as sought by the father.
The location of the changeover of X between the parties’ households was not the subject of any submissions. I am not satisfied that having the changeover at a police station as sought by the mother conveys the most appropriate message to X. I am satisfied it is in X’s best interests that changeover occur at a more child focused location and will therefore make an order that it occur at the McDonalds as sought by the father and the Independent Children’s Lawyer.
Injunctive orders preventing the mother from attending X’s school or the father’s home pursuant to section 68B of the Act will be made in circumstances where it is imperative that X has continuity and certainty for the initial 8-week period in which she lives with the father. Such injunctive orders will only apply for the period in which X is not spending face to face time with the mother.
CONCLUSION
I have no doubt that X is loved deeply by both her parents. I appreciate that my decision that X is to move from the mother’s household to live with the father will be significantly distressing for the mother and distressing for X in the short term. The orders I make are not to punish the mother or reward the father but have been made on a careful consideration of the competing risks and concerns in each of the parties’ households. On balance, the apparent inability of the mother to encourage and facilitate a meaningful relationship with the father and the serious concerns I have as to the mother’s parenting ability has led me to determine that it is in X’s best interests to live with the father. It is hoped that the mother will obtain the assistance as suggested by the single expert in this matter and that both parties are able to move forward in their parenting relationship so that X does not feel she has to effectively “choose sides”.
I am satisfied based on my findings made above that the orders as proposed by the Independent Children’s Lawyer and consented to by the father are in X’s best interests and will be made accordingly.

I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 14 December 2023

File number(s):	PAC 4546 of 2021
Judgment of:	JUDGE MURDOCH
Date of judgment:	14 December 2023
Catchwords:	FAMILY LAW – PARENTING – Where this is the second set of parenting proceedings for this child and the child is now 10 years of age – Where the child is presently living with the mother and refusing to spend any time with the father notwithstanding it is professionally supervised – Where the child has expressed clear views as to her relationship with the father and has made various allegations as to the father’s conduct including that he has threatened to kill her and abused her– Where the allegations as to the father’s conduct are not found - Where the child’s expressed views do not accord with the relationship she has with the father- Where the single expert opines that the mother displays traits suggesting that the mother has a personality disorder - Where it is found that the mother is incapable of facilitating a relationship between the father and the child – Where the child has been significantly exposed to these proceedings – Where it is found that the mother presents a risk of physical and emotional harm to the child - Where it is found that the father can provide the child a more stable residence – Orders made for the child’s residence to be changed so that she lives with the father and spends time with the mother on a gradually increasing basis and eventually four nights per fortnight.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,65D 65DAA, 65DAC, 68B Crimes Act 1900 (NSW) s10(1)(a) Mental Health Act (2007) NSW s 32(3)
Cases cited:	Whisprun Pty Ltd v Dixon [2003] HCA 48.
Division:	Division 2 Family Law
Number of paragraphs:	288
Date of hearing:	6-9 November 2023
Place:	Sydney
Counsel for the Applicant:	Ms Messner
Solicitor for the Applicant:	Consort Family Law
Counsel for the Respondent:	Mr Reeves
Solicitor for the Respondent:	Phillip A Wilkins & Associates
Counsel for the Independent Children’s Lawyer:	Ms Shea
Solicitor for the Independent Children’s Lawyer:	MCW Lawyers

PAC 4546 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TASSOU Applicant
AND:	MS PANDELIS Respondent
INDEPENDENT CHILDREN'S LAWYER Intervener

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	14 DECEMBER 2023