Thukral & Trishna - [2022] FedCFamC1F 572

Federal Circuit and Family Court of Australia
(DIVISION 1)
Thukral & Trishna [2022] FedCFamC1F 572

File number(s): SYC 3986 of 2019

Judgment of: ALTOBELLI J

Date of judgment: 10 August 2022

Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where the mother makes allegations of child sexual abuse and inappropriate conduct against the father – Finding that the father does not pose a risk to the child – Where the appointed expert opines the mother poses a risk in making unreasonably unfounded allegations against the father – Finding that the mother does pose a risk as posited by the expert – Order that father have sole parental responsibility – Order for child to live with the father and spend gradually increased time with the mother.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D, 65DAA

Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4,

Division: Division 1 First Instance

Number of paragraphs: 197

Date of last submission/s: 12 April 2022

Date of hearing: 18–22 October 2021

Place: Sydney (via videoconference)

Counsel for the Applicant: Mr Jackson

Solicitor for the Applicant: Sharah & Associates Solicitors and Conveyancers

Counsel for the Respondent: Mr Alexander

Solicitor for the Respondent: Acorn Lawyers

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 3986 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR THUKRAL

Applicant

AND:
MS TRISHNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

10 August 2022

THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
2.The child X born in 2011 (“[X]”) live with the Applicant Father (“Father”).
3.The Father have sole parental responsibility for X.
4.In relation to any non-urgent major proposed decision for X’s medical, schooling (including change of school) and religious matters:
(a)The Father shall inform the Respondent Mother (“Mother”) by email of his proposal;
(b)If the Mother wishes to provide input on the Father’s proposal then:
(i)the Mother shall have 21 days to respond to the Father’s email providing him with her input;
(ii)in making her investigations to provide the Father with her input, the Mother be at liberty to communicate with any relevant professionals for X; and
(iii)the Mother shall have an opportunity to discuss the matter with X;

(c)Upon receipt of any input by the Mother, the Father shall then give consideration to such input AND after the Father has considered the Mother’s comments, he shall make a decision and electronically advise the Mother of the outcome immediately after making that decision.
(d)If the Mother does not provide any input (as per Order 4(b)), the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue accordingly and shall thereafter electronically advise the Mother of the outcome immediately after making that decision.

5.X shall continue to attend D School until the completion of Year 6 primary schooling, and that in relation to high school for X, the Father shall give genuine consideration to X continuing to attend D School unless the Father is otherwise advised by X’s treating paediatrician or other specialist treater to enrol X in another school.
6.The Father and Mother shall keep the other informed of their residential address, telephone contact details and email address and shall inform the other within three days of any such change to these details.
7.Unless otherwise agreed by the Mother and the Father in writing, the Mother and Father be restrained from relocating with X outside of the Region K and Sydney metropolitan areas.
8.The Father and the Mother be responsible for the day to day care of X including his attendance and involvement in extra-curricular activities whilst X is in their respective care.
9.During any period when X is with the Father, in the event that X is hospitalised or receives medical attention for serious illness or serious injury, the Father shall notify the Mother as soon as practicable (and in any event within two hours) after X’s first contact with either the medical practitioner, medical centre or hospital, and provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment for X.
10.During any period when X is with the Mother, in the event that X requires medical attention for serious illness or serious injury, the Mother shall notify the Father as soon as practicable and provide the Father with details including the details of the illness, injury, for X and the Father is permitted to forthwith attend on X and collect X from the Mother and/or make any necessary arrangements for X.
11.The Father shall ensure the Mother is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by X while in the care of the Father and any medication that has been prescribed to be given to X to be taken while X is in the care of the Mother.
12.X spend time with the Mother as follows:
(a)for six months (26 weeks) from the date of these orders in each two-week cycle as follows:
(i)in the first week, supervised time for a period of six hours, such time to take place on a non-school day and at times as agreed but failing agreement on a Saturday from 10am–4pm; and
(ii)in the second week, by electronic video call (FaceTime, Zoom or Teams) for up to one hour each fortnight with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm–7.30pm on a Thursday and such electronic video calls be in the absence of professional supervision; amd
(iii)For the purposes of such supervised time, the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place (subject to the supervision service engagement) and is also permitted to spend such supervised time with X in the Mother’s home.

(b)Thereafter for a further period of six months (26 weeks) in each two-week cycle as follows:
(i)In the first week, unsupervised time from 10am–6pm Saturday for each alternate Saturday;
(ii)In the second week, by electronic video call (FaceTime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm–7.30pm on a Thursday and such electronic video calls be in the absence of professional supervision; and
(iii)For the purposes of such time the Mother and Father shall agree to the place of changeover provided that such place be a public place (and it is noted that the Mother is permitted to spend such time with X in the Mother’s home).

(c)Once the time that X spends with the Mother become unsupervised (pursuant to Order 12(b)) X shall spend additional unsupervised time with the Mother for special occasions each year as follows:
(i)On X’s birthday from after school (or 3pm if a non-school day) until 6pm;
(ii)On Mother’s Day from 10am–6pm;
(iii)On Christmas Day from 1pm–6pm;
(iv)On such other special days as agreed in writing between the Mother and Father; and
(v)For the purposes of such time, the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place and is also permitted to spend such supervised time with X in the Mother’s home

(d)After the period of six months (26 weeks) of unsupervised with the Mother (as per Order 12(b)), each two week cycle as follows:
(i)In the first week, unsupervised time from after school Friday (or 3pm Friday if a non-school day) to 6pm Saturday for each alternate week.
(ii)In the second week, by electronic video call (FaceTime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm–7.30pm on a Thursday and such electronic video calls be in the absence of professional supervision.
(iii)On such other days (including overnight periods) as agreed in writing between the Mother and Father.
(iv)For the purposes of such time the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place and is also permitted to spend such supervised time with X in the Mother’s home.

(e)After a period of six months (26 weeks) of the operation of Order 12(d) then such face to face time in Order 12(d)(i) shall be suspended during each school holiday period and that X shall spend face to face time with the Mother during each school holiday period as follows:
(i)X shall spend time with the Mother during each of the holiday periods at the end of Terms 1, 2 and 3 school terms from the conclusion of the last day of school term for the first three consecutive nights until 6pm on the fourth day in each mid-term school holiday period thereafter;
(ii)In the Term 4 summer school holiday period X shall spend time with the Mother for the first three consecutive nights following the conclusion of the school year until 6pm on the fourth day;
(iii)In the Term 4 summer school holiday period X shall spend time with the Mother from 10am on the Monday of the fifth week of the school holidays for three consecutive nights to 6pm Thursday of that week; and
(iv)By electronic video call (FaceTime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm–7.30pm on a Thursday in the absence of professional supervision shall continue during these times.

13.Unless otherwise agreed in writing, for the purposes of supervision in Order 12:
(a)The Father and Mother shall engage Supervision Service L, or in the event that Supervision Service L is unable to supervise, the Father and Mother shall use such other supervision service as agreed by the Mother and Father in writing;
(b)The costs charged by the supervision service shall be borne equally by the Mother and Father;
(c)The Father and Mother have leave to provide a copy of these orders to Supervision Service L or such other supervision service agreed by the Mother and Father in writing; and
(d)The Mother shall be at liberty to arrange the contact venue (subject to the supervision service engagement) and is permitted to spend supervised time with X in her home.

14.For the purposes of all non-school or supervised time changeovers, the Father shall be responsible for delivering X to the Mother at the commencement of such time and the Mother shall be responsible to return X to the Father at the conclusion of such time.
15.The Father and Mother each be restrained from:
(a)Discussing these proceedings or showing any document filed or produced in any legal proceedings relating to X and shall ensure that all documentation is stored securely away from X’s access;
(b)Criticising or denigrating the other parent or any member of the other person’s extended family;
(c)Criticising or denigrating the other parent’s cultural background, heritage, country of origin, religion and religious beliefs; and
(d)Using any form of physical discipline with X.

16.The Mother and Father each be restrained from filming or recording X’s electronic video call with the Mother.
17.Leave be granted to Independent Children’s Lawyer to provide to the Department of Communities and Justice (“DCJ”) pursuant to the memorandum of understanding, a copy of the following:
(a)Single Expert Report of Dr M dated 14 July 2020;
(b)Single Expert Report of Dr M dated 14 September 2021;
(c)Orders made 15 September 2021; and
(d)A copy of these orders herein

AND that it be requested that DCJ add such documentation to the files held with DCJ for X.
18.Leave be granted to the Independent Children’s Lawyer to provide a copy of these orders herein to:
(a)D School;
(b)Ms N, Clinical Psychologist;
(c)Dr O, Psychiatrist;
(d)Organisation P, X’s occupational therapist;
(e)Dr Q, General Practitioner;
(f)Mr R, Psychologist; and
(g)Ms S, Psychologist.

19.The Father, the Mother and X continue to attend upon their current treaters and shall follow all recommendations and referrals made to them by their current treaters.
20.Leave be granted to give X’s treating therapist and school to communicate with each other as deemed necessary to assist X.
21.The Independent Children’s Lawyer will explain these orders to X at the earliest convenient time following their delivery. The Independent Children's Lawyer be otherwise discharged.

THE COURT NOTES THAT:
A.X’s treating therapist is Ms N, Clinical Psychologist and it is intended that X will continue to attend upon Ms N for therapy until at least he reaches the age of 13 but that X’s therapy may continue into his adolescence.
B.The Mother’s current treating therapist is Ms S, Psychologist and Dr O, Psychiatrist.
C.The Father’s current treating therapist is Mr R, Psychologist.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thukral & Trishna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION

This case is about a child, X, born in 2011. X is 11 years old and currently lives with the applicant father (“the father”) and spends time with the respondent mother (“the mother”) on a supervised basis. These orders explain why the Court has made orders that X continue to live with the father and spend time with the mother.
Background
The father is a health professional and is 50 years old. The mother is 43 years old and describes herself in her affidavit as a student. The parents married in Country T in February 2009. They moved to [Country H] where X was born in 2011. The family migrated to Australia in 2014, with the father arriving first, and the mother and X arriving three months after. In 2015, they became permanent residents of Australia.
There are also proceedings in relation to alteration of property interests between the parents in respect of which the Court will make orders and deliver reasons for same in a separate judgment.
As early as February 2017, X was assessed to have sensory processing difficulty and problems with fine motor skills. He is otherwise a highly intelligent boy and sensitively attuned to what is happening around him.
The relationship between the parents seems to have been an unhappy and often tumultuous one. It was a relationship with very little intimacy. In the present proceedings they each made allegations about the other’s behaviour. In cross-examination, eventually, both parents acknowledged that they had said things, and done things that, with the benefit of hindsight, they consider inappropriate, unhelpful, and probably hurtful at the time.
The relationship appears to have ended with separation under the same roof in about 2018, though nothing actually turns on the date. By about 2018 it also started to become apparent that X’s sensory processing difficulties and problem with fine motor skills might have been related to Autism Spectrum Disorder (“ASD”).
Coinciding with, or shortly after the separation, the mother began to make a number of very serious allegations against the father about his conduct towards X. With the benefit of having heard the evidence in this case, the Court’s view is that the mother’s concerns about the father’s conduct with X vacillated between outright allegations of child sexual abuse at one extreme, and much milder concerns about inappropriate conduct. The details of the allegations are comprehensively examined in the report of Dr M, a consultant child psychiatrist who was appointed as the single joint expert in this case. There is no need to dwell on these at length in these reasons for judgment. As it turns out, the mother tells the Court that she is satisfied that there was no child sexual abuse perpetrated by the father, though she remains concerned that some of his behaviour was inappropriate. The real issue for the Court is whether the mother genuinely believes that there is no risk of harm to X in the father’s care and whether there is a risk of further allegations.
The Court’s strong impression of the mother is that she presented to the Court as a victim. Firstly, she was a victim of the family violence perpetrated by the father on her, principally in the form of coercive and controlling violence. Secondly, she was a victim in the sense that because she raised concerns about the father’s behaviour “...my child was taken away from me. I have been punished for raising my concerns.” The Court will find that the mother was neither a victim of family violence as she contended, nor was she a victim of raising concerns about the safety of X in the father’s care. As it turns out, the Court will find that the mother’s depiction of herself as a victim for the reasons she states greatly minimises her own behaviour and the context of the same.
There is no doubt, however, that X is the much-loved child of both his mother and father who both have so much to offer him in his life.
The date of separation in a physical sense was probably 19 June 2019 when the mother left the former matrimonial home with X and removed him from school without the father’s knowledge or consent. There followed a period of almost five months when X spent no time with the father. After the date of physical separation, the mother reported X making various disclosures, and saying things and behaving in a way which communicated to the mother that X was, in effect, scared of his father and resisting of efforts to spend time and communicate with him.
The present proceedings commenced on 21 June 2019. Within a matter of days, the mother had attended on the police who commenced apprehended domestic violence proceedings. A provisional order was made on 25 June 2019. An interim order was made on 27 June 2019.
The matter first came before the Court on 21 August 2019 before a Senior Registrar. As at that time, the father’s application was for X to live with him and spend time with the mother, or in the alternative on an interim basis, to live with the mother but spend time with him.
The mother’s proposal for both interim and final orders was sole parental responsibility, that X live with her, and have no contact at all with the father.
On 12 September 2019, the Senior Registrar made interim orders for X to live with the mother, for the mother to return X to the area where they had been living, and re-enrol him in the school that he had attended. X was to spend supervised time with his father on a weekly basis.

During 2019, the parents amended their respective applications to include orders for property settlement.
In late 2019, X was interviewed by the Joint Investigation (“JIRT”) in relation to the alleged sexual abuse by the father. On 11 January 2020, X spent time with the father on a supervised basis but that was the last time this occurred until 16 October 2020. The Court observes this was the second lengthy occasion on which the mother had cut off all contact between X and the father.
In early 2020, the final apprehended domestic violence order application was dismissed following a contested hearing in the Local Court.
Shortly after in 2020, the Department of Communities and Justice completed their assessment indicating that:
·sexual abuse of X by the father is not substantiated; and
·the mother may pose a psychological risk to X if she remains fixated on the view that he has been sexually abused by the father.
JIRT closed their investigation. The mother alleges in her trial affidavit that it was closed because there was not enough evidence. She said that she was “relieved” at this conclusion and accepted the findings.
Within a matter of days, the father filed an Application in the Case seeking interim orders that X live with him and spend supervised time with the mother.
In May 2020, the parents and X attended interviews with Dr M. His report was released on 14 July 2020. This report will be considered in detail, in these reasons.
On 16 November 2020, Harper J heard the father’s interim application. His Honour ordered that X live with the father, and made a comprehensive suite of orders to implement this order. For all practical purposes, X commenced living with the father on 16 November 2020 and has lived there since.
The matter came before me on 18 December 2020. I listed the matter for final hearing. Orders were made by consent in relation to the mother spending supervised time with X, commencing from 31 January 2021.
The orders made by Harper J, and the consent orders made by myself, establish a comprehensive scheme for the parenting of X, and the provision of support and therapy to the family. These orders are reproduced in Schedule A to these reasons.
Supervised contact eventually commenced, though not without its difficulties and delays. The mother commenced what turns out to be a very constructive and productive engagement with a psychologist, Ms N, from January 2021.
On 14 July 2020, Dr M provided an updated report.
The hearing of this matter commenced on 18 October 2021 and ran for five days. Final submissions were made on 12 April 2022.
Before examining the competing proposals and the evidence, a number of broad observations and findings can be made. The foundations for the parental relationship were unstable from the time the relationship commenced. Prior to separation, it was a tumultuous relationship marked by absence of intimacy. The conflict between the parents during the relationship continued, and exacerbated after separation. This is high-conflict case. The parents cannot communicate effectively, and even email communication is misinterpreted, misconstrued and sometimes even manipulated. There is no trust between the parents. The foundations for a future co-parenting relationship are unstable. Both parents lack insight, particularly into the impact of their own behaviour, and of the parental conflict, on X.
This is a case where both parents were cross-examined for extended periods of time, and where their credibility was placed in issue. Both had a tendency to exaggerate at times and minimise at other times. As a matter of degree, the mother was unquestionably worse than the father. The mother was sometimes evasive in cross-examination, often unresponsive, and occasionally argumentative. The father was never argumentative, rarely unresponsive and occasionally evasive. The Court has carefully considered whether the mother’s case, that she was the victim of coercive and controlling violence, is established, and thus would have a significant bearing on the manner in which she gave her evidence, including the matters identified above. The Court has satisfied itself that that is not the case, and accordingly, its findings about the mother’s credit stand. Thus, in the absence of clear, independent, corroborative evidence to the contrary, the Court will prefer the evidence of the father over the mother on the issues that are most relevant in this case.
The Competing Proposals
The father’s final proposed orders as at the date of closing submissions was contained in a document that became exhibit A11, which is reproduced in Schedule B to these reasons. In short, he proposed that he have sole parental responsibility of X, who would live with him. He proposed that the mother be able to give X Christmas cards and gifts, birthday cards and gifts, and photographs at any time, but otherwise be prohibited with communicating with him by phone or social media until he turns 16 years of age. The mother would otherwise have supervised time, four hours per every four weeks. However, the father offered an alternative proposal for X to spend time with the mother, if the Court were not so minded to make the orders summarised above. He thus proposed that in the alternative, the mother have supervised time, for four hours each month for the first six months after the date of these orders, and thereafter for a further year unsupervised time for eight hours each fortnight on alternate Sundays, and thereafter unsupervised alternating Friday overnight to Saturday.
The minute of order proposed by the mother became exhibit R6, and is reproduced in Schedule C to these reasons. The mother proposed that the parents would have equal shared parental responsibility, but X would live with her, and spend time with the father each alternate weekend from after school on Friday to before school on Monday, as well as during school holiday periods. However, the mother also proffered an alternative set of orders, subject, of course, to the Court’s finding about risk. She thus proposed that X live with the father, and spend time with the mother on an unsupervised basis which incrementally increased over four stages, commencing from each Sunday from 10am–5pm, through to, eventually, each alternate weekend from after school Friday to before school Monday. In addition, she proposed orders for school holidays.
X was capably represented by an experienced Independent Children’s Lawyer and counsel. By the time of closing submissions, the orders proposed by the Independent Children’s Lawyer became exhibit ICL8. This is reproduced in Schedule D to these reasons. By way of summary, X would live with the father who would also have sole parental responsibility, subject to obligations to consult and communicate. X would spend time with the mother on a two-week cycle with such time incrementally increasing over four stages over a period of two years. For the first six months, there would be supervised time for six hours on a non-school day in week 1, and then electronic communication in week 2. In the next six-month stage, the mother’s time in week 1 would become unsupervised and extend by three hours, and the electronic time in week 2 would continue. In the third stage, the mother’s unsupervised time would expand to after school on Friday to 6pm on Sunday, and the electronic time in week 2 would continue. In the final stage, X’s unsupervised time with his mother would extend to school holiday periods. The Independent Children’s Lawyer proposed a series of detailed, considered restraints.
The Evidence
In support of his case, the father relied on the following material:
(a)His affidavit filed 5 October 2021;
(b)His Financial Statement filed 5 October 2021;
(c)His Case Outline filed 11 October 2021;
(d)Expert Report of Dr M filed 14 July 2021;
(e)Expert Report of Dr M filed 14 September 2021; and
(f)Documents tendered and marked as exhibits A1–A11.
In support of her case, the mother relied on the following material:
(a)Her Amended Response filed 4 October 2021;
(b)Her affidavit filed 4 October 2021;
(c)Her Case Outline filed 8 October 2021;
(d)Her Financial Statement filed 4 October 2021;
(e)Affidavit of Mr U filed 4 October 2021;
(f)Affidavit of Ms V filed 4 October 2021;
(g)Affidavit of Ms S filed 4 October 2021;
(h)Affidavit of Dr O filed 29 June 2021;
(i)Affidavit of Ms W filed 30 October 2020; and
(j)Document tendered and marked as exhibits R1–R6.
In support of their case, the Independent Children’s Lawyer relied on the following material:
(a)Their Case Outline filed 14 October 2021;
(b)Child Responsive Program Memorandum dated 1 November 2019;
(c)Single Expert report of Dr M dated 14 July 2020 tendered and marked as exhibit C1;
(d)Single Expert report of Dr M dated 14 September 2021 tendered and marked as exhibit C2; and
(e)Documents tendered and marked as exhibits ICL1–ICL8.
The Applicable Law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:        Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)

The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Evidence
The evidence of Dr M, the single joint expert, will be examined first, not because of any primacy of this evidence, but because it is both expert, and independent. In examining Dr M’s evidence, however, observations and findings will be made about the other evidence in the case, particularly that of the parents. In this manner, the evidence of Dr M becomes a lens through which to examine the other evidence in this case, and the reverse is equally true.
Dr M prepared two reports, on 14 July 2020 and 14 September 2021. Curiously, these reports were not tendered in evidence, but this must have been inadvertent because he was extensively cross-examined, and most of the cross-examination of the parents involved references to Dr M’s reports. Accordingly, Dr M’s reports became the Court’s exhibits and tendered as C1 and C2 respectively.
For the most part, the recommendations made by Dr M in his later report, which substantially adopted the recommendations made in his first report, were adopted by him and, as will be seen, are very much reflected in the proposal of the Independent Children’s Lawyer.
His first report was based on interviews conducted on 4 and 5 May 2020. He makes a number of important observations about the presentation of the mother, and from the Court’s perspective, it is interesting to observe to what extent this changes by the time of the second report. At paragraphs 29–31, Dr M states:
29.The mother’s underlying mood state was difficult to determine at interview. She did not present as overtly depressed, manic or anxious. The mother’s affects shifted quite rapidly, in keeping with her disjointed narrative, and her affects often appeared to be amplified or constructed. The mother presented mostly positive affects [displayed emotion]. When discussing stressful or negative matters, the mother presented more with dissociated affect or with pathos, rather than with distress, sadness or worry.
30.The mother’s narrative was disorganised and lacked substance, and was difficult to elicit and to elaborate at interview. In response to questioning, the mother often presented idealising or devaluing generalities, about which she then struggled to be specific or to give example. She gave generic responses in the second or third person, mixing intention with narrative of actual events, and mixing past, present and future tenses. The mother mixed reference to her own experience, emotion or opinion with reference to the experience, emotion or opinion of another, in particular [X]. The mother’s responses were at times inconsistent and illogical. She presented as suggestible, in terms of recurrent references to the guidance or opinion of third parties, and in response to my enquiry or challenge.
31.Because of the above presentation, I observed that I had to provide significant assistance to the mother, in terms of provision of some focus and structure to the interview, in order to elicit the information relevant to the process at hand. My impression was that the mother was trying to bring cohesion to her narrative but struggling to do so, rather than being deliberately obfuscating.
The impression of Dr M summarised in the last sentence of paragraph 31 is, with respect to Dr M, very generous towards the mother. The Court will form a less generous view about the mother’s obfuscation.
At paragraphs 35–36, he concludes:
35.My impression was that the mother lacked insight and judgement. Associated with the same, the mother showed poor reflective functioning, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise her own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others. She showed a poor capacity for empathic attunement, that is a capacity to pause, to engage with and to respond to, the emotional state of the other.
36.Reflective functioning and empathic attunement are important capacities underlying good personality functioning, and underlying effective parenting.
Having had the benefit of observing the mother at length in cross-examination, in the context of the totality of the evidence before the Court, the Court makes findings about the mother consistent with paragraph 35 above.
At the time of these interviews, X was living with the mother, and not spending any time with the father. X was asking questions about why he was not seeing his father. Dr M concluded in the last sentence at paragraph 98: “The mother did not provide a cohesive or considered response to this question.” Again, Dr M is very generous to the mother in this regard. The Court concludes that the mother was unresponsive to the question, just like she was many times during cross-examination.
When the mother was asked whether she held any concerns for X in the father’s care, she explained that, having regard to the JIRT report, she did not. The Court has ongoing concerns about whether the mother meant it at the time she was asked, and indeed continues to believe her own state as at present.
At paragraph 100 the mother refers to the “very toxic environment at home” prior to separation. The Court accepts that this is an appropriate description of life at home before separation.
At paragraph 113, Dr M introduces the concept of a “father-rejecting narrative”. He observes that the mother assertively places the agency and responsibility for X father-rejecting narrative upon himself, disavowing her own role in the developmental maintenance of same. As will be seen, Dr M was very critical of this, and the totality of the evidence very much justifies his criticism.
At paragraph 126, Dr M observes about the mother:
The mother describes both sharing a narrative of paternal abusive behaviour with [X], and encouraging [X] to see the father on a basis of universal parental love. The same will have been confusing and anxiety-provoking for [X], particularly in a context where the mother is placing the onus of decision-making about such issues upon the child.
Finally, Dr M observed in relation to the mother that whilst she appeared genuine in expressing positive contributions that the father might make to X, “this fragment of narrative was poorly integrated with the mother’s broader negative and dismissing narrative.” The former is a theme which Dr M explores later on in his report.
The father’s presentation to Dr M, and his impressions about the father strongly contrast with that of the mother. For example, at paragraph 145, Dr M observed the father to clearly differentiate his own experience, emotion and opinion from that of other persons, including the mother and X. The father seemed to much better appreciate X’s experience and X’s developmental needs, at least from a perspective of a responsible adult.
At paragraphs 148–149, Dr M states:
148.My impression was that the father showed strong overall insight and judgement. Associated with the same, the father showed reasonable and likely quite strong reflective functioning, that is a capacity to pause, to reflect upon, and to accurately appraise his own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others. He showed a reasonable capacity for empathic attunement, that is a capacity to pause, to engage with and to respond to, the emotional state of the other.
149.The father tended to bring a logical at times reductionistic approach to relational matters, which appeared to have been pragmatically effective, notably with regard to his parenting, but likely at times clashed with the mother’s more emotional/ symbolic approach.
Dr M was quite systematic in putting the wife’s concerns about the father, to the father. The topics covered included the mother’s allegations of the father’s alleged financial control, his use of pornography, her concern that he would take X to Country T, and his excessive consumption of alcohol. Each of these allegations were dealt with by the father cogently and clearly. It is only in relation to the father’s use of pornography that the Court concludes that he minimised the extent of his using, though the Court also concludes that this presented no risk of harm to X.
When asked about the importance of X’s relationship with the mother, the father demonstrated a high degree of insight. For example, at paragraph 208, Dr M observes that the father appeared respectful of the mother’s care of and provision for X in his early years, and mindful of maternal stressors associated with that role, with tiredness, and with loss and grief. At paragraph 216, he observed that the father appeared genuine about the stated benefits of X’s relationship with the mother, and more broadly, this was consistent with his narrative about the mother.
The theme turned to the mother’s allegations about what Dr M described as the father sexually intruding upon X. The father’s answers were, once again, clear and cogent.
X was interviewed. The impression formed from reading Dr M’s observations is that X is an impressive child. He is intelligent, articulate, polite and cooperative. He was occasionally anxious or sad in affect. He was neither fearful nor anxious when presenting what Dr M described at paragraph 257 as: “...his partisan negative narrative about the father.” At paragraph 260, Dr M observes:
His narrative about past, current and future potential family life was a mother-elevating, father-diminishing narrative. [X] named the mother as the source of much of the information upon which this narrative was based, and appeared to assume shared opinion with the mother. In contrast with the same, [X] alone or with each parent described or acknowledged positive aspects of day to day experience in the care of each parent.
At paragraph 262, Dr M concludes: “[X]’s dominant partisan mother-elevating, father-diminishing narrative caused significant disruption of reasoning and judgment in partisan domains.”
X was interviewed with the mother. A number of important observations about the mother were made here. At paragraph 276, for example, Dr M observes:
The mother here presents herself as the person who in the past sought to encourage an otherwise problematic child/father relationship. The mother proactively listing two past child/father activities might appear supportive of that relationship, but I observed that the conditional nature of her comment, and her ironic tone, were overall undermining of that relationship.
At paragraph 277, Dr M observes:
The mother affirmed [X] in a global, absolute and at times hyperbolic, self-diminishing way, which is less beneficial for child self-esteem than more specific, measured, mutually respectful acknowledgement, particularly in the context of [X’s] developmental difficulties, which need specific correction, as well as specific praise.
At paragraph 286, he observes:
The emotional intensity of the mother’s engagement with [X] was disproportionate to [X’s] observed mental state at that time, and in my view reflected the mother’s emotional state, disposition and needs, rather than those of the child. The mother’s appeals for [X] to speak his own truth appear to be differentiated and respectful, but in the context of an established shared mother/[X] abuse narrative, in my view would have been experienced by [X] as appeals to enact the elaboration of that shared narrative.
Notwithstanding the above, the mother was observed to demonstrate the capacity to transition X to a time-limited, adult-supervised visit with the father.
Dr M met with X alone and, as a result of the discussions and assessment, observed that the mother’s current primacy as X’s parental figure was apparent, as was some insecurity in X about the consistency of his parental figures over time. There was no doubt he was favourably disposed towards his mother. But in the context of his father, X told Dr M that he hated him, that he was not very good, not very nice, that he was forced to shower with him, and that his dad was boring.
At paragraph 313, Dr M observed:
[X] appeared distressed and burdened by the clash between his current mother elevating/ father diminishing narrative, and the reality of paternal primary day to day parent role at least for the 18 months prior to parental separation.
At paragraph 320, Dr M notes:
[X] added, “I’ve watched videos of when Mum was teaching me… Dad’s not in those video’s… I’d know if it was photoshopped… When I was three years old, I could count to 300”. I am concerned that the mother may have been engaging with [X] in a narrative about his upbringing, with the aid of childhood video’s, that elevates her own role at the expense of an absent or problematic father. [X] appears to have considered the possibility that the mother may have been deliberately distorting the family narrative to exclude the father, but to have excluded the same on the basis of the video evidence.
(As per the original)
At paragraph 326, Dr M states:
As had the mother, [X] merges with the mother in their shared experience of negative paternal “stuff”, including the father pushing the mother down the stairs and throwing things at her. [X] understood the father to have made a personalised attack against the mother/[X] dyad, by throwing things near the mother’s “tummy” when [X] was inside the same. [X] made clear that he sourced this narrative from the mother, rather than from his own memory.
In subsequent paragraphs, what Dr M described as X’s father-blaming narrative is restated in the context of examples given. At paragraphs 334–335, Dr M makes these observations:
334.…[X] is experiencing grief, loss, anger and disappointment, and is projecting these negative emotions onto the father.
335.…[X’s] separation anxiety about the mother has more an emotional rather than a cognitive basis. My impression is that it arises from [X’s] experience of maternal distress and anxiety
At paragraph 342] Dr M makes this disturbing observation: “[X] appeared to feel entitled to express hatred for his father, and did so in my presence without apparent caution or modulation.”
X was then interviewed with the father. Dr M observed that, whilst he appeared a little activated and anxious, he was able to continue discussing other matters and did not show any signs of panic or severe anxiety.
At paragraph 350, Dr M states:
The father greeted [X], and [X] very quickly “loosened up” into engaged conversation with the father. Initially, [X] said to me, “one thing I will say”, then showed the father his Mobius strip, and explained it. From that time, the two conversed.
Thereafter, Dr M observed playfulness, the absence of vigilance or fear, but then often dramatic reversions back to blaming and challenging in relation to partisan issues. The father was observed not to engage at all with the partisan issues, but instead to give X agency, and to promote an approach of reasoning, problem solving, rectification, rather than blame. At paragraph 361, Dr M states:
[X] appeared familiar with this way of relating to the father. [X] overall was respectful of the father, for example stopping to listen to and respond to the father’s question or challenge. But, [X] did not appear afraid of or inhibited from robustly challenging the father. Again, this pattern of relating would likely be developmentally beneficial for [X], whom the teachers have noted to have deficits in two-way communication.
Dr M observed at paragraph 365 X stating his case about, for example, watching inappropriate movies with his father and then, having done so, letting go “of his adversarial stance, and to move on.”
When X was interviewed alone, following the joint interview with the father, Dr M observed him to reframe his observed positive interactions with the father as acting. Dr M did not believe that X was acting. At paragraph 383, Dr M makes the important observation: “[X] appeared to be assertively re-instating his absolute partisan mother good/father bad stance, which had shifted during the father/child interview.”

There are also important observations about the reunion between X and the mother in the waiting room. At paragraph 384, Dr M observes:
The mother’s behaviour was similar to that of a parent comforting a child after a tragic or traumatic experience. As was the case with the mother’s farewell to [X] at the commencement of the child/father interview, the nature and the emotional intensity of the mother’s reunion behaviour with [X] was disproportionate to [X’s] observed mental state at that time, and in my view reflected the mother’s emotional state, disposition and needs, rather than those of the child.
Dr M interviewed X’s classroom teacher and deputy principal. It will be recalled that X was taken out of his school by the mother when she moved on separation. He returned to the school in 2019, following a Court order to that effect. Dr M was interested in X’s presentation after return to the school. The relevant paragraphs are 408–416:
408.In mid-2019, at parental separation, [X] had left the school abruptly. When [X] returned a few months later, he was “a very emotional little boy”.
409.When [X] returned from Sydney, the mother reported that [X] was liking his time at the school in Sydney. [X] reported that he didn’t like it.
410.The teacher had not seen this before. [X] would be sobbing in class. [X] was constantly talking about being hungry, even though he had enough to eat and was observed to eat it. The teacher felt that this was more an emotional hunger, like a feeling that “I can never fill up”.
411. [X] at that time needed a lot of 1 on 1 support from the teacher.
412.[X] when upset had expressed a lot of negative things about Dad. He was saying that he hated Dad, that he had experienced a hard life, and that this was Dad’s fault.
413.[X] would be so distraught about Dad. He blamed Dad for his bad life, for taking all of his money. He said that Dad had baths with him and had slept with him, and that adults shouldn’t do that.
414.The Deputy had noted what she felt to be the unusual language used by [X] when speaking of these things. [X] had referred to the paternal grandparents as “his parents” rather than “my grandparents” when he said, “his parents never do anything for me”, and would speak of “he” and “him” rather than Dad.
415.The teacher commented that when [X] had gone back to seeing his dad, he had presented as very distraught, and not coping with that. The mother also was very upset about [X] having to see his dad.
416.The school had made a report to FACS, about [X’]s disclosures about Dad, in particular regarding [X’s] distress about bathing and sleeping with Dad.
Commencing from paragraph 422, Dr M discussed an important issue in this case, that of X’s exposure to family violence within the parental relationship.
At paragraph 422, Dr M succinctly explains the mother’s perspective on this issue:
The mother makes allegations regarding paternal longstanding controlling, entitled, denigrating, deceitful, threatening, verbally and at times physically aggressive and intimidating behaviour towards her, which if true in their entirety would amount to a pattern of family violence perpetrated by the father against the mother, incorporating use of coercive control to constrain the mother’s freedoms and to markedly disrupt her wellbeing.
He notes that the mother describes X witnessing these paternal behaviours towards the mother, and also the father behaving in similar ways towards X at times, such that X fears for his father, as does the mother.
Dr M expresses the view that his overall impression is that there has not been a pattern of family violence perpetrated by either parent against the other. Nonetheless, he explores the implication both if he is correct, and if he is mistaken. Dr M goes on to explore both scenarios comprehensively, by reference to all of the information before him, and having regard to X and his experiences and developmental needs.
As it turns out, the Court finds, with the benefit of observing both parents carefully over many days of cross-examination, that Dr M’s overall impression is, in fact, correct. The Court finds that there has not been a pattern of family violence perpetrated by either parent against the other. In short, the Court’s finding is based on an acceptance of the father’s evidence, rather than that of the mother, for reasons set out above. The Court does not accept the mother’s evidence about physical violence. Indeed, most of the mother’s case seemed to focus on what she considered to be the father’s controlling behaviour. On the mother’s own evidence, however, she had freedom to travel, to study, to spend time away from home, to access her own funds, all of which are inconsistent with her case about the father’s control.
The Court also finds that both parents had a somewhat unusual understanding of what controlling behaviour actually was. The mother, in particular, presented as being quite articulate in the language of family violence and, with the benefit of hindsight, grasped for a series of seemingly unrelated behaviours of the father during the relationship and then sought to join the dots, to create a pattern of coercion and control. But when these behaviours are seen in context, there is nothing about them, either individually or collectively, that create a pattern of coercion or control, or even domination. It could not be said, for example, that coercion or control was, on the evidence, in any sense a characteristic of the father such that would constitute him as a coercive and controlling man.
The father at no time during the evidence presented with a sense of entitlement or self-justification. He was thoroughly cross-examined about these allegations and, on each occasion, was able to provide a cogent explanation based on context. None of these observations are inconsistent with the Court’s finding of a tumultuous relationship that descended into the toxic, particularly after separation. Moreover, there is simply no evidence to support the mother’s contention that the father was coercive and controlling towards X. For these reasons, the Court accepts Dr M’s view that there was no pattern of family violence in this case. Commencing from paragraph 431, he explores the implications of this in this case. At paragraph 431, he states:
If [as is my view] the mother’s allegations against the father of family violence and abuse of [X] lack substance, then her initiating and persisting with these claims, her communicating the substance of these claims to [X], and her active undermining of the [X]/father relationship amount to maternal (witting or unwitting) emotional abuse of the father and of [X].
At paragraph 435, he confirms:
My impression overall is that each parent experienced significant dissatisfaction within the parental relationship and was aggrieved about aspects of the attitudes and behaviour of the other parent, but that there was not a pattern of family violence perpetrated by one parent against the other. An associated view is that there was not a marked power differential between the parents.
Dr M confirms that this was a conflictual relationship, but also that there were times when the parents compromised, collaborated, and even engaged in shared problem solving.
At paragraphs 437–438, he observes:
437.Considering information from all sources, including each parent’s and [X’s] narrative at interview, court documents and subpoenaed material, I do not observe significant indicators of paternal abuse, and I do observe aspects of the mother’s abuse narrative which would appear to be inaccurate or untruthful, when compared with information from other sources.
438.The mother’s narrative is that the father was controlling and constraining of her spending and her movements/ actions throughout the parental relationship, but I observe significant maternal agency and freedom within the parental relationship, in the macro-decisions and in the day to day micro- decisions, over the years.
At paragraphs 439–447, Dr M gives examples to support, and contextualise his views.
The Court observed the mother to readily lapse into exaggeration. For example, after separation, the mother expressed fear of the father harming or killing herself or abducting X. The Court agrees with Dr M’s conclusion at paragraph 451 that there was simply no evidence to support the mother’s fears. It is curious that the mother would insinuate that the father would behave outside the parameters of the law, when she was the one who did not comply with orders for X to spend time with his father.
Thus, the Court concludes, as does Dr M, that whilst in effect this was a highly conflictual, indeed at times toxic relationship, it was not one that experienced patterns of family violence, including coercive control and abuse. Thus, X was clearly exposed to high conflict during the parental relationship, and this was bad enough for him, but the evidence does not support a finding that he was exposed to family violence and, indeed, the evidence in totality suggests the contrary, i.e. it did not occur.
The next risk considered by Dr M was the risk of emotional or physical abuse, or of neglect in the father’s care.
The mother made very serious allegations against the father of sexually abusive and certainly inappropriate behaviour. By the time of the mother’s case before the Court, her case was that she was not concerned any more about these issues, and was, indeed, satisfied as from the time of the JIRT assessment report release. There is no risk of harm, therefore, to X from the father in terms of physical abuse. There was no case about neglect. The focus turns on the mother’s behaviour including, amongst other things, its reasonableness.
Dr M summarises the report and assessment at paragraphs 468–474.
468.I have reviewed the FACS (DCJ) assessment report dated 30th January 2020, at Annex H to the father’s affidavit of February 2020. It would appear that this report was provided to the father by DCJ.
469.I agree with the DCJ summary of the notifications of risk that had occurred from May 2019 onwards, that these all arose from the mother as source, and contained similar information.
470.The assessment report includes summary of a DCJ/Police Joint Investigation Review Team (JIRT) interview of [X] conducted on 19th December 2019.
470.1.The interviewers observed that [X] appeared to have “particular talking points” that were negative about the father, and “stated them at the first possible opportunity”.
470.2These “talking points” were “almost word for word” consistent with the mother’s reports at interview and the help line reports.
470.3.[X] was then “unable to provide any more context or detail” about these issues of concern. He was “unable to provide detail which would reach a threshold of concern for child protection intervention”.
470.4.This inability to provide detail occurred despite the interviewers noting [X] to present as “a child with intense curiosity, a high level of intelligence, and great memory recall for facts”.
470.5.When the interviewers asked an introductory question to [X] about the family, he gave a response which I note to be father-negative partisan, stating “my Dad, he’s very horrible to me, he’s showed me horror movies rated M, he bathes with me, and showers with me”.
470.6.I note that [X’s] described statement to the interviewers mixes the sexual abuse imputations with negative comment about the father which would have source outside his lived experience, for example referencing when he was a baby, and financial matters. [X] said, “he’s made me take off my pants at night. When I was a baby he threw me up and my head hit the ceiling. He never paid for anything, he took my money, and he has lots of money”.
471.The assessing professionals also interviewed each parent, and spoke with the school. The school had commented that [X] was presenting as fearful of the father and was “blaming the father for lots of things”.
472.The assessing professionals expressed concern that maternal allegations might be escalating after the mother had been informed that abuse had not been substantiated. [In] January 2020, a mandatory reported had reported a maternal narrative that [X] had been “raped” by the father.
473.Prior to the above JIRT interview, the family consultant interviewed [X] alone for the Child Responsive Programme report, in October 2019. In that interview, [X] appears to have mostly provided a negative narrative about the father unrelated to issues of sexual abuse. But, he did state that the father has made him feel uncomfortable, that the father had made him sleep in the paternal bed without pants on, that they would bath together, and that it “is wrong to bath with a seven year old”. [X] had not made disclosures of paternal sexual abuse.
474.At interview alone with me, the mother denied holding concerns for [X’s] welfare in the father’s care. She said “I don’t… after the JIRT report”,
At paragraph 479, Dr M states:
I observe commonalities between the reports of the DCJ interview, the family consultant’s interview, and my own interview with [X], in terms of [X’s] broader presentation at interview, his negative narrative about the father, his associated comments about the father bathing or sleeping with him, his lack of elaboration of or context regarding the latter statements, and his presentation in terms of apparent exposure to the broader maternal father-negative narrative.
At paragraph 481, Dr M concludes that based on the above information, he concurred with the conclusion by the Department of Communities and Justice and JIRT that the paternal sexual abuse of X had not been substantiated.
The consequential risk of emotional abuse or neglect in the mother’s care is discussed by Dr M at paragraphs 490–492:
490.In terms of day to day life, I do not perceive significant risk of physical or emotional abuse of [X] in maternal care. There is some risk of neglect of [X’s] emotional, social, intellectual and developmental needs in maternal care, associated with maternal personality vulnerabilities.
491.Currently, it is my view that [X] is experiencing emotional abuse by the mother, in terms of her persisting with her claims regarding paternal maltreatment of herself and [X], her communicating the substance of these claims to [X] and thus engendering fear and other negative cognitive and mood states in [X], and her active undermining of the [X]/father relationship.
492.Currently, it is my view that the above process of emotional abuse is causing developmental harm to [X], for example him developing patterns of distorted partisan thinking, patterns of relational cut-off, and patterns of externalising of blame for negative personal or relational experiences.
In this context, it is important to remember the chronology. X spent no time with his father between 12 January 2020 and 16 October 2020. The mother became aware of the closure of the JIRT investigation in or about January 2020. Dr M’s report of 14 July 2020 became available shortly after that date. There are multiple events before the Courts, finally culminating in the interim hearing before Harper J on 16 November 2020, which resulted in an order that X live with the father. It is very hard to understand why, if the mother’s concerns about the risk of physical abuse to X from the father ended, or at least abated, in January 2020, it had to take an order of this Court in November 2020 for X to see the father once again.
In the mother’s trial affidavit, she explains the breakdown in the father’s time with X to be attributable to X’s behaviour. In effect, she describes X resisting and refusing to spend time with his father. This is even though X’s time with his father was to be supervised. The mother gives evidence about the JIRT investigation in her trial affidavit. Specifically, at paragraph 222, she acknowledged that they closed the case as there was not enough evidence. She deposes that: “I was relieved at this conclusion and accepted the findings.” It was in cross-examination that the mother conceded that she was aware of the findings as at January, or giving her the benefit of the doubt, February 2020. It is very surprising indeed that the mother, in her trial affidavit, seems to gloss over the period between February–November 2020, and seemingly makes no attempt to explain why, if she was indeed “relieved at this conclusion and accepted the findings” she did not do more to facilitate the resumption of X’s time with the father. The most likely explanation, the Court finds, is that the mother was disingenuous in stating that she was both relieved at the conclusion, and accepting of the findings of the JIRT report. Indeed, this Court will share what will be seen to be Dr M’s ongoing concern in relation to this issue.
Related to the issue of risk is the question of the mother’s relationship with X. There is no doubt, not only from Dr M’s expert observations and opinion, but also from the totality of the evidence, that X has a close, mostly positive relationship with the mother, which is clearly an attachment relationship. Dr M opined that when the mother was in a positive mood state, she was more than adequately able to meet all of X’s needs. She would be protective, and not a danger to him. Dr M, however, expresses his concerns at paragraphs 514–519 and 521–522:
514.My impression is that when the mother is feeling reasonably secure and stable, that mother/[X] relationship is positive, and mostly secure for [X].
515.But I am concerned that in the context of the stresses leading up to and since parental separation, the mother has not been able to maintain an accurate appraisal of [X’s] experience or of his needs, nor a strong and child-focussed parental role for [X], leading to disruption of [X’s] wellbeing and development.
516.I am concerned that the mother has not been able to maintain good self/other boundaries with [X]. She has burdened [X] with adult opinion and information. The mother projects her own opinions, feelings and experiences onto [X], perceiving and presuming these to be shared experiences.
517.This has become quite a burdensome and coercive process, of the mother imposing her own experience and perspectives onto [X].
518.I observe that this occurred post-separation, with regard to the mother’s stance regarding the father. [X] has now taken on this projected maternal stance as his own, in a way that is potentially quite distorting and damaging for his own personality development, as well as disrupting of his relationship with the father.
519.Concordant with my impression, the family consultant commented after interview with [X] alone in October 2019 that [X] “seems like he has been told a lot of information about adult matters, which could influence his view of the father”. The DCJ staff considering [X’s] December 2019 JIRT interview also appeared to come to similar conclusions about [X] taking on maternal narratives as his own.
521.In my view, maternal projection of her own thoughts and feelings onto [X] was observed in the mismatch between her emotionally intense farewell to [X] and reunion with [X] before and after [X’s] interview with the father and myself, which was not proportionate to [X’s] actual presentation, nor his needs, in those moments.
522.Part of this process has been that the mother has not been able to buffer [X] from a full experience of maternal disrupted emotional states.
From the Court’s perspective, a number of observations need to be made which are consistent with Dr M’s observation and opinion above. The factual matters set out at paragraph 519 are correct. The mother’s negative stance regarding the father pervaded her trial affidavit, and was palpably present during her cross-examination at the hearing. This is of concern given that the hearing took place in October 2021, but these interviews occurred in May 2020. Even though the mother insisted in her evidence that she had, in effect, moved on in terms of the father and her views and feelings about him, that is plainly inconsistent with the facts. In many ways, this phenomenon is reflected at paragraph 524 of Dr M’s report where he states:
This process of maternal projection onto [X] is made more stressful and burdensome for him, because I observe that the mother then at key decision-making moments disavows her own projected stance, and places the burden of rejection of the father onto [X]. In my view, this is an emotionally abusive process.

27.1.Such supervision to be supervised by a nominated agency.
27.2.The Mother is at liberty to choose the venue of supervised spend time, but the venue cannot be her home and must be within a radius of 10 kilometres of the Father's residence
27.3.That the parties equally share the cost of the supervised time

In the alternative to Order 27, above, the Father seeks the following Orders
28. That for the first six months from the date of the Orders
28.1.That the child shall spend a supervised period of 4 hours per month with the Mother.
28.1.1.Such supervision to be supervised by a nominated agency.
28.1.2.The Mother is at liberty to choose the venue of supervised spend time, but the venue cannot be her home and must be within a radius of 10 kilometres of the Father's residence
28.1.3.That the parties equally share the cost of the supervised time

28.2.Thereafter for a further year, the Child shall spend unsupervised time with the Mother for period of 8 hours per fortnight on alternate Sundays.
28.3.Thereafter the Child shall spend unsupervised period every alternate Friday night during school terms from Friday after school until the following Saturday at 6pm: as well as:
28.3.1.for two additional Friday nights from 3pm on the Friday until the following Saturday at 6pm, being on the third and fifth Fridays of the December and January summer school holidays

schedule c
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY (Div 1)
File No. (P)SYC3986/2019
BETWEEN
[MR THUKRAL]
(Applicant)
AND
[MS TRISHNA]
(Respondent)
AND
INDEPENDENT CHILDREN'S LAWYER
MOTHER'S MINUTE OF ORDERS
PARENTING
1.   That all previous orders are hereby discharged.
Parental Responsibility
2.   That the parents have equal shared parental responsibility for the child [X] born […] 2011 (the "child").
3.   That the Mother and Father be responsible for the day to day care of the child including his attendance and involvement in extra-curricular activities whilst the child is in their respective care.
Live With/Spend Time With
4.   That the child live with the Mother.
5.   That the child spend time with the Father as follows:-
5.1.Each alternate weekend from after school or 3.00pm Friday until before school or 9.00am Monday;
5.2.Other times as agreed between the parents in writing.

6. That the child spend time with the Father during NSW school holiday periods as follows:
6.1.During school holiday periods following Terms 1, 2 and 3, for half the school holiday period as agreed and failing agreement, for the first half in even numbered years and the second half in odd numbered years.
6.2.During the school holiday period following Term 4, for half the school holiday period as agreed and failing agreement on a week about basis, commencing from the first week on the holiday period in even years, and the second week in odd numbered years.

7. That unless otherwise provided for in these Orders, for the purpose of calculating the school holiday periods the mother and father agree that school holidays:
7.1.Commence at the conclusion of school on the last day of Term for students at the school that the child is enrolled at and attending;
7.2.Conclude at the commencement of school on the first day of the new school Term for students at the school that the child is enrolled at and attending;
7.3.Conclude at the commencement of school on the first day of the new school Term for students at the school that the child is enrolled at and attending;
7.4.For the purpose of calculating half of the NSW school holidays, the mother and father will count the number of nights from the night of the commencement of the school holidays (as stipulated in Order 9.1) to the last night of the school holidays (as stipulated in Order 9.2). In the event that there are an uneven amount of nights in the school holiday period then the parent spending the first half of the school holiday period with the child shall spend the additional night with the child for that school holiday period; and
7.5.Changeover during school holidays, unless otherwise provided for in these Orders or agreed between the mother and father, shall be at 9.00am.

8. That each parent be entitled to attend all events involving the child/ren including, but not limited to:-
8.1.Sporting fixtures;
8.2.Extra curricular activities that allow for parental attendance or participation;
8.3.School functions and events that allow for parental attendance or participation –

AND the parent who has the child/ren in their care on the day of such activity will be responsible for the day-to-day care of the child/ren at such event including the child/ren’s transportation to and from the event unless otherwise agreed upon between the parents.
Special Occasions
9. That the Mother's time be suspended and the child spend additional time with the Father as follows:
9.1.From 9.00am Good Friday until 9.00am Easter Sunday in odd numbered years.
9.2.From 9.00am Easter Sunday until 4.00pm Easter Monday in even numbered years.
9.3.From 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years.
9.4.From 4.00pm Christmas Eve until 4.00pm Christmas Day in odd numbered years.
9.5.From 9.00am Father's Day until the commencement of school or 9.00am the following day.
9.6.On the child's birthday from 3.00pm until 7.00pm if the child's birthday falls on a school day the child is in the care of the Mother, and from 10.00am until 2.00pm if the child's birthday falls on a non-school day.

10. That the Father's time be suspended and the Mother spend additional time with the Mother as follows:
10.1.From 9.00am Good Friday until 9.00am Easter Sunday in even numbered years.
10.2.From 9.00am Easter Sunday until 4.00pm Easter Monday in odd numbered years.
10.3.From 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years.
10.4.From 4.00pm Christmas Day until 4.00pm Christmas Eve in odd numbered years.
10.5.From 9.00am Mother's Day until the commencement of school or 9.00am the following day.
10.6.On the child's birthday from 3.00pm until 7.00pm if the child's birthday falls on a school day the child is in the care of the Father, and from 10.00am until 2.00pm if the child's birthday falls on a non-school day.

Changeover
11. That unless otherwise agreed by the parents in writing, where changeover does not occur from school, the Father shall be responsible for collecting the child from the Mother at the commencement of the time, and the Mother shall be responsible for collecting the child from the Father at the conclusion of the time.
Restraints
11. That the Mother and Father each be restrained from: -
11.1.Discussing these proceedings or showing any document filed or produced in any legal proceedings relating to [X] and shall ensure that all documentation is stored securely away from [X's] access; and
11.2.Criticising or denigrating the other parent or any member of the other person's extended family; and
11.3.Criticising or denigrating the other parent's cultural background, heritage, country of origin, religion and religious beliefs; and
11.4.Using any form of physical discipline with [X].

12. That the Mother and Father each be restrained by injunction from filing or recording the child's electronic video call with the Mother.
13. That unless otherwise agreed between the Mother and Father in writing, the Mother be restrained from relocating with the child outside of the [Region K] and Sydney Metropolitan areas.
Communication and Other Orders
14. That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-
14.1.any medical problems or illness suffered by the child, whilst in the care of the Father;
14.2.any medication that has been prescribed for the child;
14.3.any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
14.4.any social, school or religious functions which the child is to attend;
14.5.the residential address of the Father;
14.6.the telephone contact number and email address of the Father;
14.7.any other matter relevant to the welfare of the child.

15. That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-
15.1.any medical problems of illness suffered by the child, whilst in the care of the Mother;
15.2.any medication that has been prescribed for the child;
15.3.any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
15.4.any social, school or religious functions which the child/ren is to attend;
15.5.the telephone contact number and email address of the Mother;
15.6.any other matter relevant to the welfare of the child.

16. That during any period when the child is with the Father, in the event that the child is hospitalised or receives medical attention for serious illness or serious injury, the Father shall notify the Mother as soon as practicable (and in any event within two (2) hours) after the child's first contact with either the medical practitioner, medical centre, or hospital AND provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment for the child.
17. That during any period when the child is with the Mother, in the event that the child is hospitalised or receives medical attention for serious illness or serious injury, the Mother shall notify the Father as soon as practicable (and in any event within two (2) hours) after the child's first contact with either the medical practitioner, medical centre, or hospital AND provide the Father with details including the details of the illness, injury, treating doctor and the prognosis and treatment for the child.
18. That both parties be authorised to communicate with the child's school and any treating medical practitioners, and receive any reports, writings or other documents from them relating to the child.
19. That the Mother, Father and child continue to attend upon their current treaters and shall follow all recommendations and referrals made to them by their current treaters.
Travel and Passports
20. That the Mother be permitted to travel overseas with the child as agreed and failing agreement, on not less than one occasion per year for a period of four (4) weeks provided the following conditions are met:
20.1.The Mother shall travel only to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction 1980.
20.2.Unless otherwise agreed, such travel shall occur during school holiday periods only and during such time that the travelling parent spends with the child pursuant to these Orders.
20.3.The travelling parent shall notify the other party if their intention to travel with the child not less than two (2) months to the date of departure and provide the other party with an itinerary, details of the travel destination, accommodation details (including contact details), flight details, and accommodation details.
20.4.Not less than fourteen (14) days prior to the date of departure, the travelling parent shall provide a telephone number or numbers to which the child will be contactable during the duration of the travel.

21. That the parties be specifically restrained by injunction from travelling to or through countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction and in which the Hague Convention is not in force between Australia and that Country.
22. That the child's Passport be held by the Judicial Registrar of the Federal Circuit and Family Court of Australia at Sydney and the following shall apply:
22.1.The travelling parent shall notify the Registry of their intention to travel and request the release of the Passport not less than two (2) months prior to proposed travel.
22.2.The child's Passport shall be returned to the Registry within forty-eight (48) hours of the child's return to Australia.

Miscellaneous
23. That leave be granted to the Independent Children's Lawyer to provide a copy of these Orders herein to:-
23.1.[D School];
23.2.[Ms N], Clinical Psychologist;
23.3.[Organisation P], [X’s] occupational therapist;
23.4.[Dr Q], Psychologist; and
23.5.[Ms S], Psychologist

24. That the Independent Children's Lawyer be otherwise discharged.
In the alternative to Orders 4 to 6 herein, and subject to the Court's findings as to risk:-
25. That the child live with the Father.
26. That the child spend time with the Mother as follows:-
Stage One:
26.1.For a period of eight (8) weeks, each Sunday from 10.00am to 5.00pm;

Stage Two:
26.2.From the conclusion of Order 26.1 and for a period of four (4) weeks, each Saturday from 10.00am until 10.00am Sunday;

Stage Three:
26.3.From the conclusion of Order 26.2 and for a period of eight weeks, each alternate weekend from after school or 3.00pm Friday until 4.00pm Sunday;

Stage Four:-
26.4.During NSW School terms, each alternate weekend from after school or 3.00pm Friday until before school or 9.00am Monday;
26.5.During NSW School holiday periods following Terms 1, 2 and 3, for half the school holiday period as agreed and failing agreement, for the first half in even numbered years and the second half in odd numbered years;
26.6.During the NSW school holiday periods following Term 4, for half the school holiday period as agreed, and failing agreement, on a week about basis commencing from the first week in even numbered years and from the second week in odd numbered years.

27. That for the purposes of the time provided for in Order 26 herein, it is noted that the Mother is permitted to spend such time with the child in the Mother's home.
28. That, unless otherwise agreed by the Mother and Father in writing, the Father be restrained by injunction from relocating with the child with the child outside of the [Region K] and Sydney Metropolitan areas.
schedule d
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
AT SYDNEY
File No. SYC3986/2019
BETWEEN
[MR THUKRAL]
(Applicant Father)
AND
[MS TRISHNA]
(Respondent Mother)
AND
INDEPENDENT CHILDREN’S LAWYER
PROPOSED ORDERS OF THE INDEPENDENT CHILDREN'S LAWYER
1.   That all previous orders are hereby discharged.
2.   That the child [X] born […] 2011 (“[X]”) live with the Father.
3.   That the Father have sole parental responsibility for [X].
4.   That in relation to any any non-urgent major proposed decision for [X’s] medical, schooling (including change of school) and religious matters:
4.1.The Father shall inform the Mother by email of his proposal;
4.2.If the Mother wishes to provide input on the Fathers proposal then,
4.2.1.the Mother shall have 21 days to respond to the Father’s email providing him with her input;
4.2.2.in making her investigations to provide the Father with her input, the Mother be at liberty to communicate with any relevant professionals for [X]; and,
4.2.3.that the Mother shall have an opportunity to discuss the matter with [X];

4.3.That upon receipt of any input by the Mother, the Father shall then give consideration to such input AND after the Father has considered the Mothers comments, he shall make a decision and electronically advise the Mother of the outcome immediately after making that decision.
4.4.If the Mother does not provide any input (as per Order 4.2), the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue accordingly AND shall thereafter electronically advise the Mother of the outcome immediately after making that decision.

5.   That [X] shall continue to attend [D School] until the completion of Year 6 primary schooling, and that in relation to High School for [X], the Father shall give genuine consideration to [X] continuing to attend [D School] unless the Father is otherwise advised by [X’s] treating paediatrician or other specialist treater to enrol [X] in another school.
6.   That the Father and Mother shall keep the other informed of their residential address, telephone contact details and email address and shall inform the other within 3 days of any such change to these details.
7.   That unless otherwise agreed by the Mother and the Father in writing, the Father be restrained from relocating with [X] outside of the [Region K] and Sydney metropolitan areas.
8.   That the Father and the Mother be responsible for the day to day care of [X] including his attendance and involvement in extra-curricular activities whilst [X] is in their respective care.
9.   That during any period during when [X] with the Father, in the event that [X] is hospitalised or receives medical attention for serious illness or serious injury, the Father shall notify the Mother as soon as practicable (and in any event within two (2) hours) after [X’s] first contact with either the medical practitioner, medical centre or hospital, AND provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment for [X].
10. That during any period during when [X] with the Mother, in the event that [X] requires medical attention for serious illness or serious injury, the Mother shall notify the Father as soon as practicable AND provide the Father with details including the details of the illness, injury, for [X] and the Father is permitted to forthwith attend on [X] and collect [X] from the Mother and/or make any necessary arrangements for [X].
11. That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by [X] while in the care of the Father and any medication that has been prescribed to be given to [X] to be taken while [X] is in the care of the Mother.
12. [X] spend time with the Mother as follows:
12.1.for six months (26 weeks) from the date of these orders in each two week cycle as follows:
12.1.1.Week 1 Supervised time for a period of 6 hours, such time to take place on a non-school day and at times as agreed but failing agreement on a Saturday from 10am to 4pm, and
Week 2 By electronic video call (Facetime, Zoom or Teams) for up to one hour each fortnight with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm to 7.30pm on a Thursday AND THAT such electronic video calls be in the absence of professional supervision.
12.1.2.That for the purposes of such supervised time the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place (subject to the supervision service engagement) and is also permitted to spend such supervised time with [X] in the Mother’s home.

12.2.Thereafter for a further period of six months (26 weeks) in each two-week cycle as follows:
12.2.1.Week 1 Unsupervised time from 10am to 6pm Saturday for each alternate Saturday.
Week 2 By electronic video call (Facetime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm to 7.30pm on a Thursday AND THAT such electronic video calls be in the absence of professional supervision.
12.2.2.That for the purposes of such time the Mother and Father shall agree to the place of changeover provided that such place be a public place (and it is noted that the Mother is permitted to spend such time with [X] in the Mother’s home).

12.3.That once the time that [X] spends with the Mother become unsupervised (pursuant to Order 12.2) [X] shall spend additional unsupervised time with the Mother for special occasions each year as follows:

12.3.1.On [X’s] Birthday from after school (or 3pm if a non-school day) until 6pm.
12.3.2.On Mother’s Day from 10am until 6pm.
12.3.3.On Christmas Day from 1pm until 6pm.
12.3.4.On such other special days as agreed in writing between the Mother and Father.

AND that for the purposes of such time the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place and is also permitted to spend such supervised time with [X] in the Mother’s home
12.4.That after the six period of six months (26 weeks) of unsupervised with the Mother (as per Order 12.2) each two week cycle as follows:
12.4.1.Week 1 Unsupervised time from after school Friday (or 3pm Friday if a non-school day) to 6pm Saturday for each alternate week.
Week 2 By electronic video call (Facetime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm to 7.30pm on a Thursday AND THAT such electronic video calls be in the absence of professional supervision.
12.4.2.On such other days (including overnight periods) as agreed in writing between the Mother and Father.
12.4.3.That for the purposes of such time the Mother shall be at liberty to arrange the contact venue and nominate the place of changeover being a public place and is also permitted to spend such supervised time with [X] in the Mother’s home

12.5.That commencing after 6 months (26 weeks) of overnight time [X’s] face to time with his Mother has occurred then such face to face time in 12.4.1 shall be suspended during each school holiday period and that [X] shall spend face to face time with the Mother during each school holiday period as follows:-
12.5.1.[X] shall spend time with the Mother during each of the holiday periods at the end of Terms 1, 2 and 3 school terms from the conclusion of the last day of school term for the first three consecutive nights until 6pm on the fourth day in each mid-term school holiday period thereafter; and
12.5.2.In the Term 4 summer school holiday period [X] shall spend time with the Mother for the first three consecutive nights following the conclusion of the school year until 6pm on the fourth day; and also
12.5.3.In the Term 4 summer school holiday period [X] shall spend time with the Mother from 10am on the Monday of the fifth week of the school holidays for three consecutive nights following to 6pm Thursday of that week.

AND IT IS NOTED
[X] time with his mother by electronic video call (Facetime, Zoom or Teams) for up to one hour each fortnight on a day with such call taking place as agreed by the Mother and Father in writing but failing agreement from 6.30pm to 7.30pm on a Thursday in the absence of professional supervision shall continue during these times.

13. That unless otherwise agreed in writing, for the purposes of supervision in Order 12:
13.1.The Father and Mother shall engage [Supervision Service L] PROVIDED THAT in the event that [Supervision Service L]is unable to supervise then such other supervision service agreed by the Mother and Father in writing ; and
13.2.The costs charged by the supervision service shall be equally borne by the Mother and Father ; and
13.3.The Father and Mother have leave to provide a copy of these Orders to [Supervision Service L]or such other supervision service agreed by the Mother and Father in writing;
13.4.That the Mother shall be at liberty to arrange the contact venue (subject to the supervision service engagement) and is permitted to spend supervised time with [X] in her home.

14. That for the purposes of all non-school or supervised time changeovers, the Father shall be responsible for delivering [X] to the Mother at the commencement of such time and the Mother shall be responsible to return [X] to the Father at the conclusion of such time.
15. That the Father and Mother each be restrained from:
15.1.Discussing these proceedings or showing any document filed or produced in any legal proceedings relating to [X] and shall ensure that all documentation is stored securely away from [X’s] access; and
15.2.Criticising or denigrating the other parent or any member of the other person’s extended family; and
15.3.Criticising or denigrating the other parent’s cultural background, heritage, country of origin, religion and religious beliefs; and
15.4.Using any form of physical discipline with [X].

16. That Mother and Father each be restrained by injunction from filming or recording [X’s] electronic video call with the Mother.
17. That leave be granted to Independent Children’s Lawyer to provide to the Department of Communities and Justice (DCJ) pursuant to the memorandum of understanding, a copy of the following:-
17.1.Single Expert Report of [Dr M] dated 14 July 2020;
17.2.Single Expert Report of [Dr M] dated 14 September 2021;
17.3.Orders made 15 September 2021; and
17.4.A copy of these Orders herein.

AND that it be requested that DCJ add such documentation to the files held with DCJ for [X].
18. That leave be granted to the Independent Children’s Lawyer to provide a copy of these Orders herein to:
18.1.[D School];
18.2.[Ms N], Clinical Psychologist;
18.3.[Dr O], Psychiatrist;
18.4.[Organisation P], [X’s] occupational therapist;
18.5.[Dr Q], General Practitioner;
18.6.[Mr R], Psychologist; and
18.7.[Ms S], Psychologist.

19. That the Father, the Mother and [X] continue to attend upon their current treaters and shall follow all recommendations and referrals made to them by their current treaters.
20. That leave be granted to give [X’s] treating therapist and school permission to communicate with each other as deemed necessary to assist [X].
21. That the Independent Children's Lawyer be otherwise discharged.
NOTATION:
A.It is noted that [X’s] treating therapist is [Ms N], Clinical Psychologist and it is intended that [X] will continue to attend upon [Ms N] for therapy until at least he reaches the age of 13 but that [X’s] therapy may continue into his adolescence.
B.It is noted that the Mother’s current treating therapist is [Ms S], Psychologist and [Dr O], Psychiatrist.
C.It is noted that the Father’s current treating therapist is [Mr R], Psychologist.

File number(s):	SYC 3986 of 2019
Judgment of:	ALTOBELLI J
Date of judgment:	10 August 2022
Catchwords:	FAMILY LAW – PARENTING – Parental responsibility – Where the mother makes allegations of child sexual abuse and inappropriate conduct against the father – Finding that the father does not pose a risk to the child – Where the appointed expert opines the mother poses a risk in making unreasonably unfounded allegations against the father – Finding that the mother does pose a risk as posited by the expert – Order that father have sole parental responsibility – Order for child to live with the father and spend gradually increased time with the mother.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D, 65DAA
Cases cited:	MRR v GR (2010) 240 CLR 461; [2010] HCA 4,
Division:	Division 1 First Instance
Number of paragraphs:	197
Date of last submission/s:	12 April 2022
Date of hearing:	18–22 October 2021
Place:	Sydney (via videoconference)
Counsel for the Applicant:	Mr Jackson
Solicitor for the Applicant:	Sharah & Associates Solicitors and Conveyancers
Counsel for the Respondent:	Mr Alexander
Solicitor for the Respondent:	Acorn Lawyers
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 3986 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR THUKRAL Applicant
AND:	MS TRISHNA Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	10 August 2022