Ubina & Szwed
[2025] FedCFamC1F 195
•8 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ubina & Szwed [2025] FedCFamC1F 195
File number: SYC 3837 of 2023 Judgment of: BOYLE J Date of judgment: 8 April 2025 Catchwords: FAMILY LAW – CHILDREN – Whether the mother should have sole parental responsibility – Spend time with arrangements – Where the mother alleges that the father sexually abused his niece – Where the mother alleges family violence by the father – Orders made for sole parental responsibility – Orders for the father to spend time with the child two occasions per week supervised or in a public place – Additional time during school holidays and special occasions Legislation: Family Law Act 1975 (Cth) ss, 60CA, 60CC, 61D, 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited: Hearne & Hearne [2015] FamCAFC 178
Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Mertens & Mertens [2016] FamCAFC 136
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Division: Division 1 First Instance Number of paragraphs: 136 Date of hearing: 10-13 February 2025 Place: Sydney Counsel for the Applicant: Mr Gabriel Solicitor for the Applicant: Checks and Balances Law Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Parks Family Law Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Gonzalez & Co ORDERS
SYC 3837 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS UBINA
Applicant
AND: MR SZWED
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
8 APRIL 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
Parental responsibility
1.The Applicant Mother have sole decision-making responsibility for X born 2019 (“X”).
2.When exercising sole decision-making responsibility in relation to any major long-term issue the Applicant Mother must inform the Respondent Father in writing of the decision that has been made.
Living arrangements for X
3.X live with the Applicant Mother.
Time spent with the Respondent Father
4.X spend time with the Respondent Father as follows:
(a)During the school term:
(i)Every Thursday from the conclusion of school to 7 pm.
(ii)Every Saturday from 11 am to 7 pm.
(iii)Any other times as agreed between the parties.
(b)During school holidays:
(i)Every Monday from 9 am to 7 pm.
(ii)Every Thursday from 9 am to 7 pm.
(iii)Every Saturday from 11 am to 7 pm.
5.X’s time with the Respondent Father as set out in Order 4 herein shall only occur either:
(a)supervised by a trusted family friend as agreed between the parties from time to time in writing; or
(b)occurring unsupervised in a public place.
Special occasion time with the Applicant Mother
6.Notwithstanding any other provision in these orders, X spend time with the Applicant Mother on special occasions as follows:
(a)From 10 am on Christmas Eve until 1.30 pm on Christmas Day in odd-numbered years and from 1.30 pm on Christmas Day until 5.30 pm on Boxing Day in even-numbered years;
(b)From 10 am on Good Friday until 1.30 pm on Easter Saturday in odd-numbered years and from 1.30 pm on Easter Saturday until 5.30 pm on Easter Sunday in even-numbered years;
(c)From 10 am on New Year’s Eve until 1.30 pm on New Year’s Day in odd-numbered years and from l.30 pm until 5.30 pm on New Year’s Day in even-numbered years;
(d)For 4 hours on the Applicant Mother’s birthday, if X is not already spending time with the Applicant Mother;
(e)For 4 hours on X’s birthday, if X is not already spending time with the Applicant Mother;
(f)From 10 am to 5 pm on Country B’s New Year in odd-numbered years, if X is not already spending time with the Applicant Mother;
(g)From 10 am to 5 pm on the first day of religious celebrations in even-numbered years, if X is not already spending time with the Applicant Mother;
(h)On any other special occasions as agreed between the Parties.
Special occasion time with the Respondent Father
7.Notwithstanding any other provisions in these orders, X spend time with the Respondent Father on special occasions as follows:
(a)From 1.30 pm to 8 pm on Christmas Day in odd-numbered years and from 10 am to 8 pm on Christmas Eve and 10 am to 1.30 pm on Christmas Day in even-numbered years;
(b)From 1.30 pm to 8 pm on Easter Saturday and 10 am to 5 pm on Easter Sunday in odd-numbered years and from 10 am to 5 pm on Good Friday and 10 am to 1.30 pm on Easter Saturday in even-numbered years.
(c)From 1.30 pm until 5.30 pm on New Year’s Day in odd-numbered years and from 10 am to 5 pm on New Year’s Eve in even-numbered years;
(d)For 4 hours on the Respondent Father’s birthday, if X is not already spending time with the Respondent Father;
(e)For 4 hours on X’s birthday, if X is not already spending time with the Respondent Father;
(f)For 4 hours on Father's Day;
(g)From 10 am to 5 pm on Country B’s New Year in even-numbered years, if X is not already spending time with the Respondent Father;
(h)From 10 am to 5 pm on the first day of religious celebrations, in odd-numbered years, if X is not already spending time with the Respondent Father;
(i)On any other special occasion as agreed between the Parties.
8.X’s time with the Respondent Father as set out in Order 7 herein shall only occur either:
(a)supervised by a trusted family friend as agreed between the parties from time to time in writing; or
(b)occurring unsupervised in a public place.
Changeovers
9.Unless the parties agree otherwise, if a changeover does not occur at school, it will take place at the Applicant Mother’s residence.
10.If either party is unable to attend a changeover, they must advise the other by text message and nominate another responsible person known to X to attend the changeover at the designated time.
Interstate travel with the Applicant Mother
11.The Applicant Mother may travel interstate with X during any period of time that the Applicant Mother has care of X.
12.The Applicant Mother shall:
(a)Provide the Respondent Father with at least 14 days’ notice in writing of the interstate travel plans;
(b)Provide the Respondent Father with a copy of the travel itinerary and contact details for X while interstate; and
(c)Not travel during school terms.
Overseas travel with the Applicant Mother
13.The Applicant Mother may travel overseas with X during any period of time that the Applicant Mother has the care of X.
14.If the Applicant Mother proposes to travel overseas with X and the Respondent Father’s time will be impacted pursuant to such travel, then the Applicant Mother must:
(a)Provide the Respondent Father with at least 21 days’ notice in writing of the overseas travel plans;
(b)Provide the Respondent Father with a copy of the travel itinerary and contact details for X overseas; and
Family Law Watchlist
15.Mr Szwed (male) born 1983 and his servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of the said child X (female) born 2019 from the Commonwealth of Australia.
16.It is requested that the Australian Federal Police give effect to Order 15 by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
17.The mother of the said child, Ms Ubina (female) born in 1985, be and is authorised to remove the said child from the Commonwealth of Australia at such times, for such periods and travelling to such destinations as she may desire.
Passports
18.The Applicant Mother provide the Respondent Father with an application for an Australian passport for X, and the Respondent Father sign and return the application within 10 days of receiving the application.
19.If the Respondent Father refuses or neglects to sign the application within 10 days of a written request to do so, then a Registrar of this registry of the Court is appointed in accordance with section 106A of the Family Law Act (Cth) to sign or execute the application on behalf of the Respondent Father.
20.The Applicant Mother meet all expenses associated with the passport application.
21.Forthwith the Respondent Father deliver any and all passports in his possession, care or custody relating to X born 2019 to the Applicant Mother to be held by her.
Communication between the Parents
22.Except as otherwise provided in these Orders or in the case of an emergency, the parties communicate with each other in relation to issues relating to X using the OurFamilyWizard co-parenting application.
Ancillary
23.The parties shall notify each other as soon as reasonably practicable of any medical emergency relating to X.
24.The parties shall keep each other informed of any treating medical or allied health practitioners for X, and the parties are permitted to contact those practitioners to obtain information regarding X’s care.
25.The parties shall keep each other informed of their residential addresses and notify each other within seven days of a change to those details.
26.The parties are permitted to attend all extra-curricular activities, school events and musical performances to which parents are ordinarily invited attend regardless of whose care X is in when those events occur.
27.The parties are permitted to obtain all information from X’s school regarding her educational progress.
28.The parties communicate with each other in a respectful manner and only in relation to issues regarding X.
29.The parties be restrained from discussing the court proceedings in the presence or hearing of X and from showing X documents in relation to this matter.
30.The parties be restrained from questioning X about their parenting arrangements.
31.Each party shall refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of X and each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other party in the presence or hearing of X.
32.Leave is granted to the parties to provide these reasons to any psychologist, psychiatrist or counsellor consulted by either of the parties, or for X.
33.The parties shall equally share the costs of the Independent Children’s Lawyer, being $7,590, with such payment to be made to Legal Aid NSW within six months.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
Both parents seek orders in relation to X, who is aged five.
X lives with the mother. She spends time with the father every Thursday, Friday and Saturday, either supervised or in a public place.
The mother contends that the father has sexually abused his niece many years ago, and perpetrated family violence at times in front of X. The father denies this.
As I will explain in these reasons, I have found that there is an unacceptable risk to X from her father both with respect to sexual abuse and family violence. The orders will continue a pattern of time supervised or in a public place.
BACKGROUND
The parties were both born in Country B. They married in Country B in 2013, and migrated together to Australia in 2015.
X was born in 2019.
The parties separated on a final basis in November 2022, and on 14 November 2022 the father moved from the former matrimonial home.
On 30 May 2023, the mother commenced these proceedings. She sought orders for sole parental responsibility for X, and that X live with her.
The mother filed an Amended Initiating Application on 29 January 2024, including orders for a property adjustment. The proceedings were bifurcated, and directions will be made for the future conduct of the property proceedings as part of these orders.
Interim consent orders were made on 5 July 2023 for X to live with the mother, and spend time with the father every Sunday and Thursday for four hours, supervised by friends. After four weeks, the time on Sunday became unsupervised in public places only.
These orders were extended by consent on 19 October 2023, to time every Monday, Thursday and Saturday, either supervised or in a public place.
DOCUMENTS RELIED UPON
The mother filed a Case Outline Document setting out the documents relied upon:
(a)Affidavit of Ms Ubina filed on 6 February 2025;
(b)Affidavit of Ms C filed on 7 February 2025; and
(c)Affidavit of Ms D filed on 6 February 2025.
The father filed a Case Outline Document setting out the documents relied upon:
(a)Affidavit of Mr Szwed filed on 5 February 2025;
(b)Affidavit of Ms E filed on 5 February 2025;
(c)Affidavit of Mr G filed on 5 February 2025;
(d)Affidavit of Ms F filed on 5 February 2025; and
(e)Affidavit of Mr H filed on 5 February 2025.
The court was assisted by the following reports:
(a)Single Expert Report of Dr J dated 16 January 2024;
(b)Single Expert Report of Dr K dated 22 August 2023; and
(c)Single Expert Report of Dr L dated 28 September 2023.
The parties, Ms C (“Ms C”) and Dr J were cross-examined. Dr K and the remaining witness of the mother were not required for cross-examination. Dr L and the witnesses of the father were not required for cross-examination.
A number of documents were tendered during the course of the proceedings. I have had regard to those documents as well as the material relied upon by the parties.
I will refer to the parties as the mother and the father during these reasons to assist in the anonymisation of the judgment for publication, with no disrespect intended to either.
COMPETING PROPOSALS
The mother seeks sole decision-making authority for X, and that X live with her. She seeks time between X and the father every Thursday from the conclusion of school to 7 pm, and every Saturday from 11 am to 7 pm. The time shall be supervised by an agreed person, or in a public place. She seeks orders for additional daytime periods during school holidays and special occasions.
The Independent Children’s Lawyer (“ICL”) largely supported the mother’s orders.
The father seeks orders that the parties have equal shared parental responsibility and consult with one another about major long-term issues in relation to X. At the beginning of the hearing, he sought increasing time with X, to week about with each parent. At the end of the hearing, he sought time increase to four nights each fortnight, and extended holidays.
Adjournment Application
At the conclusion of the evidence, the father sought an adjournment of the proceedings for a psychosexual risk assessment to be conducted. The ICL supported the application. The mother opposed it. I refused the application and indicated that reasons would be provided within this judgment.
The mother made an oral application for a psychosexual risk assessment at the time of the transfer of the proceedings by Judge Neville to Division 1 of this court. The application followed the recommendation of Dr J. The father and the ICL opposed, contending that the matter should await a finding on whether the father posed a risk of harm or not from the sexual abuse allegations.
At that time, the father sought a Single Expert Report from Mr M for a mental health assessment of each party and to report on issues with respect to X’s welfare. The mother opposed that application because the parties had already undertaken mental health assessments and had a Single Expert Report from Dr J.
The oral applications were not determined by Judge Neville. Her Honour noted that the psychosexual assessment appeared unlikely to address any family violence issues, which may remain a barrier to resolution of the matter. No order was made by Justice Campton for either report when the matter was listed for hearing.
In considering whether to grant an adjournment I have taken into account the matters in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). That directs the court to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.
Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) provides the principles for conducting child related proceedings. These require consideration of the needs of the child, including the possible impact of the proceedings. The court should actively direct, control and manage the proceedings. Conduct of the proceedings should safeguard the parties and child from family violence, and the child from being exposed to risk more broadly. Conduct of the proceedings should promote the parties to co-operate and be child focused. Finally, and significantly in this matter, the proceedings should be conducted without undue delay, and with as little formality and legal technicality as possible.
In Hearne & Hearne [2015] FamCAFC 178, in considering an application for an adjournment, the Full Court held at [56]:
… on an application to adjourn proceedings a court is required to take into account not only the individual circumstances of the parties, but the effect on the court as a publicly funded resource, the effect on other litigants, the court’s case management principles, and “the need to maintain public confidence in the judicial system” (AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, per French CJ, at [5]).
In Mertens & Mertens [2016] FamCAFC 136, Kent J summarised the factors to be taken into account in an application for an adjournment. These include the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by an order for costs, and the impact upon other litigants before the court were an adjournment granted.
The issue of whether the father sexually abused his niece has been identified as a significant issue since at least January 2024, when an affidavit was filed by Ms C and the Report of Dr J became available.
The matter has been before the court since 30 May 2023, when the mother filed an Application for Final Orders. The parenting aspect was bifurcated from the property proceedings so that the parenting dispute could be finalised more expeditiously. The mother and X are entitled to have the matter finalised. There was no clarity around when a report might be available, nor on what basis the report may be prepared. The father had previously raised that a finding would be necessary before a report could be completed. He has made no concession about the allegations of sexual abuse, and the hearing had not concluded so no finding was made.
Allegations of sexual abuse are made, and conclusions made about risk in this court frequently. When there is no concession made by the father, it is unclear what could be expected of such an assessment. Parties who concede that criminal or aberrant conduct has occurred often provide evidence of steps taken, whether counselling or rehabilitation or similar, to address the issue and change their conduct. They do so to persuade the court that their past behaviour would not put a child in their care at an unacceptable risk of harm from them in the future. Where there is simply a blanket denial, the court is left to make an assessment of the evidence about the past conduct. That assessment will inform findings about the past conduct, whether there is a risk of harm to the child, the level of risk, and whether it can be mitigated.
I accept that the mother sought a psychosexual risk assessment because she has been trying to balance risks for X, including the risk that X’s relationship with her father may be damaged by spending insufficient time with him. She was seeking to use such an assessment to assist in resolving the parenting matter. That did not happen and the assessment of past conduct, future risk, and whether it can be mitigated falls to the court as it does in many matters.
Another factor against making an order is it is not known how long it might take. Once the report is available, further hearing time would be required to deal with issues arising from the report, and final submissions. That would cause significant delay to the finalising of the matter. It may require further affidavits form the parties, and cross examination. These parties have been before the court since 2023. They have committed significant financial and emotional resources to the matter. The court has allocated significant resources to the matter at public expense. For all these reasons, the adjournment was not granted.
THE LAW
Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.[1]
[1] Family Law Act s 60CC(2)(f).
In considering what orders would promote the safety of the child, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to any assessment of risk to the child. In a matter where there are allegations of risk such as in this instance, the analysis requires consideration of past conduct to assess whether there is a risk to the child, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion” (Isles & Nelissen (2022) FLC 94-042 at [85]). The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons.
The parties are in dispute about decision-making authority for the children. In determining whether to make an order under s 61D(3) of the Act, the court must consider the best interests of the children and apply the matters set out in s 60CC. That issue will be dealt with in these reasons.
ISSUES
The issues in this matter are:
(a)Did the father sexually abuse his niece in 1999/2000?
(b)Is there a risk to X being exposed to sexual abuse or inappropriate sexual conduct by the father?
(c)If the answer to (b) is yes, what orders may ameliorate the risk for X?
(d)Was there family violence in the parties’ relationship?
(e)If the answer to (d) is yes, what orders may ameliorate the risk for X?
(f)Should the parents jointly hold parental responsibility and decision-making authority, or should the mother hold it solely?
Did the father sexually abuse his niece in 1999/2000?
The mother’s evidence is that in 2020, the father disclosed to her that he had molested his niece, Ms N, when he was 16 years old. He was very ashamed and made the mother promise to never talk about it with anyone. She has never told their friends and family about this.
The mother’s evidence is that Ms N’s sister, Ms C, contacted her in 2020. This was around the time the father raised the matter with her. When asked about this timing, the mother denied that she had contacted Ms C. She thought the call came about due to the publicity around the #MeToo movement at that time.
After contact with Ms C in 2020, the mother confronted the father. The father denied any sexual intercourse or penetration of his niece. He said the conduct began when he hid a ball in his pants and asked Ms N to get it. He then asked her if she wanted to see and touch his private parts. He said the abuse of Ms N occurred several times over a three-month period. He denied wrongdoing towards Ms C, but said he briefly touched her breast and offered to explore more with her. The mother was asked whether the father expressed remorse and that he would not do anything like that to X. She replied that he was remorseful during the marriage, and that being sorry did not stop him doing the same things again.
The father’s position at the hearing was that Ms C was motivated to give evidence due to ill feeling between them. Prior to migrating to Australia, he had argued with her over her activism in Country B. He complained that her conduct had caused her family to leave Country B, and that she had pursued her own interest against the interest of her parents and maternal grandmother.
Further, the father believed that Ms C and the mother were in contact with each other. The mother has told her about the allegations she made against the father in these proceedings. In short, he thought that the mother and Ms C between them made up the story that he sexually abused Ms N.
Ms C gave evidence that she lived with her family in Country B in her grandparent’s home, where the father also resided for a period. When she was in Grade 4 in 1999 or 2000, the father showed her pornography, including child pornography, exposed his genitals to her, and groped her sexually. He was approximately 17 or 18 years old. Whilst she was unsure of his age, she was confident she was in Grade 4 at school.
Ms C agreed in cross-examination that she was involved in activism in Country B. In particular, she referred to those of the Q religion not having rights in Country B. She has been arrested in Country B.
It was put to her that whilst her family was in Country O, the father remonstrated with her about her activism causing her family to become refugees. He told her she should show more respect to her father and consideration of her maternal grandmother. He raised with her that her actions had caused her grandmother to effectively lose her daughter.
Ms C denied that there was ever an argument with the father where he criticised her activism and respect for her family. She referred to it not according with the facts: her own mother (the father’s sister) was previously arrested for her role as a leader in the Q religion, and imprisoned. Her grandmother had attended court for her mother to get her out. She referred to those of the Q religion being oppressed in Country B. In her view, the extended family, including her maternal grandmother, supported the family leaving Country B due to the risk of imprisonment for all her family. Her maternal grandmother had visited the family in Country O before they left for Country P, and visited them in Country P. As she understood it, her grandmother was happy and relieved the family left Country B.
Ms C was cross-examined by counsel for the father about her reasons for giving evidence. She said she did not feel pressured to do so by the mother. They had met briefly twice before she migrated to Country P and not since. Their communication was limited. She agreed she felt sympathy for the mother, however, she was clear that she did not know the truth of what happened between the parties. With respect to her conduct towards the mother, she said it was “kind to show kindness”.
Ms C has not seen the father for years. I accept her evidence that she held no animosity towards him. She hoped that his behaviour towards her was in the past, and not who he is now. Her evidence was that she did not know if he was a good father or not, nor who was the best parent as between the father and the mother. She said she does not know either of the parents currently. The only evidence she could give was about what happened to her.
Ms C’s evidence is that she contacted the mother out of a sense of ethical obligation. She works in the health sector as a professional. Her motivation was to protect a child. She felt morally bound to provide an affidavit when requested to do so. She said her family have attacked her for doing so. I accept her evidence that she did not want to be involved.
The father denied all the allegations made by Ms C about his conduct towards her and her sister. He said he was sent screenshots by his sister of texts between the mother and Ms C. No documents were tendered. He maintained that the allegations were made by the mother to get the parenting orders she wants. This is in contrast to the mother’s conduct in ensuring a continuing relationship between X and the father because she regards that as important for X. The mother’s attitude is apparent from her concern about how to weigh risks for X: to maintain a relationship with her father, and keep her safe. I accept her evidence about this is genuine. It is consistent with her conduct following separation. It does not sit with the father’s evidence that she would conspire with his niece to make serious allegations of sexual abuse to further her own ends.
The mother spoke with a counsellor about her concerns arising from the father’s conduct with his nieces. This was not raised by the mother until she had several sessions with her counsellor. The counsellor made a report to the Department of Communities and Justice as a mandatory reporter in late 2022 about the father’s sexual interaction with nieces who were seven and 11 when he was 18 years old in Country B. This evidence supports the mother being reticent to raise this matter, rather than keen to exploit it as the father suggests.
There were times during the evidence of each party where it appeared that cultural matters of shame and privacy influenced their conduct. This was particularly so regarding the evidence about past abuse of the father’s nieces.
I accept there may be errors in Ms C’s evidence as to dates and where, or on what screen, pornography was shown to her. These events took place about 25 years ago. That does not diminish the reliability of the core facts of her evidence: that when she was in Grade 4 and the father was in his late teens, he showed her pornography on at least two occasion; that he referred to the girl as even younger than she was and having sex; that he exposed his genitals to her several times; and that he groped her. His behaviour took place over a few months and was not a one-off incident. At the time, they were living under the same roof. I accept whether the pornography involved a child or adult would not be easy for Ms C to assess, but she was clear about the fact of pornography and the father’s comment.
Ms C’s evidence was compelling. Her distress at giving the evidence was apparent. There was nothing implausible in her account. I accept that she makes very grave allegations against the father, which have serious implications for him. I am satisfied that giving evidence was at a personal cost to her, but that she felt ethically and morally obliged to do so for the benefit of X, not either parent. I accept there was no collusion between Ms C and the mother about her evidence, and that she initiated contact with the mother consistent with the evidence of both of them.
I am satisfied on the balance of probabilities, taking into account the gravity of the matter, that on the evidence available there is an unacceptable risk to X of sexual abuse by the father. The allegation is particularly serious given that Ms C was a younger relative living in the same home, and that it went on over time. I am not required to make a positive finding that abuse occurred in order to determine unacceptable risk. I take into account submissions of counsel for the father that in circumstances where it is not necessary to make a positive finding, I should refrain from doing so. There are potential ramifications for the broader paternal family. I am also mindful of the evidence of mental health issues, and the potential seriousness of such a finding on the father’s mental health.
There was no direct evidence about the father’s conduct towards his niece, Ms N. The allegations are potentially extremely serious in the broader family context for both the father and Ms N. I know nothing of her circumstances. I make no findings about the father’s conduct towards Ms N given the state of the evidence. It is not necessary for me to do so given the findings of unacceptable risk made about the father’s conduct towards Ms C.
Is there a risk to X being exposed to sexual abuse or inappropriate sexual conduct by the father? If the answer is yes, what orders may ameliorate the risk for X?
The mother’s evidence is that the father has used X to meet his needs. For example, after separation he pressured X to choose between spending time with him and family and friends. X told her mother that he hugs her photo when he misses her, and her father is sad and alone and needs her. There was no indication that the mother was seeking to advance her case by exaggerating these comments. I accept that she recognises the importance to X of her relationship with her father, and is concerned with promoting the relationship, whilst maintaining X’s safety.
The Single Expert was concerned about the difficulty of assessing risk for X, given the evidence about the sexual abuse by the father of his niece. The particular concerns for the Single Expert were the power dynamic, in that he was 17 or 18 years, his niece was a child, and it occurred on more than one occasion.
I accept these concerns raised by the Single Expert as being significant in assessing X’s safety with her father. I am also concerned about the father’s denials, given it supports a finding that he has limited capacity for insight into his past behaviour. It means he has neither sought nor received psychological assistance with respect to this conduct, although he has engaged with a psychologist.
In assessing risk to a child’s safety, “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not” (Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28]). I accept this is relevant to these circumstances.
X is not able to exercise any self-protective behaviour. She is five years old. It is the evidence of both parties, and the court Single Expert, that she would like more time with the father. An element of risk to X comes from her desire for a relationship with her father. He has already, I accept, manipulated her to meet his emotional needs by getting her to be concerned that he is lonely and misses her. By doing so, the father makes X responsible for his emotional wellbeing. This leaves her open to further manipulation by him. The father has poor boundaries around his conduct. If something occurred which made X uncomfortable, she may be less likely to raise that with her mother, or another adult, because she wanted to protect her father and spend time with him.
The Single Expert recommended a psychosexual risk assessment of the father be done. Her Report has been available since late January 2024. The mother sought that such an assessment be prepared in October 2024 before Judge Neville, when the matter was transferred to Division 1. The father and ICL opposed that, contending that if there was a finding of risk of harm an assessment could be conducted at that point.
When cross-examined, the Single Expert was concerned that if there was a finding that the father had sexually abused his niece, there could be no unsupervised time without a psychosexual assessment. She did not regard herself as able to comment on the competing risks for X in those circumstances.
During the relationship, the mother resumed work part-time when X was about five months old. The father cared for X when she worked from 8 am to 12 pm. From early to mid-2021, the mother worked longer hours, and the parties engaged a nanny. That was off and on due to COVID-19 lockdowns and ceased finally in mid-2022. The mother’s parents came to Australia in late 2021 and became involved in caring for X. That was initially for one day a week and increased over time. The father continued to spend time alone caring for X.
The mother’s evidence of her concerns was compelling. She described reading articles to try to understand the risk. She came to the view that there was less risk when X was a baby and toddler, as his nieces were around eight to 11 years when he abused them. She referred to learning to manage her anxiety, as otherwise she could not have left the house. She referred to altering work commitments, such as when she was to attend a function interstate for three days. I accept she reduced her attendance so that she away for one night instead of three. On occasions when she had to go to Melbourne, she left very early in the morning to minimise the time the father was alone caring for X.
There have been occasions where time has occurred sanctioned by her at the father’s home without others present, including overnight. She permitted the father to drive X to City Y and back on one occasion in October 2023, so X could attend a birthday party. Additional time has occurred when she has needed the father to provide care for X, and at other times where it could be described as convenient.
I accept that it has been difficult for the mother to navigate time between X and the father. She has been under pressure from the father to extend the time. She has also had the difficulties of a working single parent with at times limited family assistance. I accept these factors have caused her to provide extended time with X that otherwise may not seem consistent with her concerns.
The mother accepts X has a very close relationship with her father, which is in X’s interests. She would like that relationship to flourish in a manner that is safe for X.
The mother has sought to manage X’s need for a relationship with her father, whilst mitigating the risk to X of sexually abusive or inappropriate behaviour by the father. The mother has attempted to assess the level of risk for X rationally. She regards the father as being constrained by the views of others, so that he would not behave poorly in the presence of others, nor in a public place. Having heard all the evidence, I accept the mother’s assessment of the father in this regard.
I have found that X is at an unacceptable risk of sexual abuse by the father. He denies any untoward conduct. There is no evidence he has raised these matters in counselling, nor done anything to address these issues. I cannot be satisfied that orders for unsupervised time, or outside a public place would promote X’s safety.
The affidavits of those who have supervised the father’s time suggest he is caring, engaged and playful with X. I accept that he loves X and wants a close relationship with her. X’s relationship with her father has been able to develop and strengthen notwithstanding the limitations on their time together. I accept the mother’s view that the father’s conduct is constrained by the presence of others, which provides a safety net for X.
The orders do not inhibit the father from attending at X’s school and sporting events. I accept that it will be important for her to be cheered on by both her parents and be able to rely on their continued involvement and interest in her life. I appreciate the father is concerned that orders for supervised time would relegate him to an uncle role rather than father. His ability to participate in her school activities and progress acknowledges the importance of his role in X’s life. It has the benefit for X of limiting her reliance on the father’s capacity to meet her psychological and emotional needs.
There will no doubt come a time when X starts to query why she cannot spend longer periods of time with her father. She already wants more time with him. This is a matter that the parents will have to manage. I have no doubt that the mother will approach this thoughtfully, as she has other issues around X’s time with her father. Her conduct demonstrates her capacity to provide for all X’s needs. It may be that she will seek advice from psychologists or similar. I propose granting leave to the parties to provide these reasons to any psychologist, psychiatrist or counsellor consulted by either of the parties for their own benefit or advice about X.
Was there family violence in the parties’ relationship? If the answer is yes, what orders may ameliorate the risk for X?
I note that the findings with respect to risk set out above have resolved the issue of unsupervised time. There are also issues of family violence and concerns about mental health, raised by each party about the other. I propose dealing with these matters briefly as it is not necessary to make detailed findings to ground the orders for time in a public place or supervised given the findings already made. Family violence and mental health are relevant matters to consider in relation to whether there should be orders for shared parental responsibility and decision-making.
The mother refers to family violence before and after separation, which includes threats, threats of suicide or self-harm, and coercive and controlling behaviour. Counsel for the father in submissions referred to there being “blow ups” between the parties that were situational, rather than pervasive. He submitted that the parties were deeply unhappy at times in the relationship and the aftermath, which has resolved. Whilst the father may have previously engaged in manipulative behaviour, it does not meet the criteria for coercive and controlling behaviour, particularly over the 12 months prior to the hearing.
The maternal family were a frequent subject of argument between the parties. The mother views this as the father attempting to control and limit her relationship with her family. Her evidence is this commenced prior to her parents moving to Australia, where he sought to limit her communication with them. In cross-examination, the mother referred to arguments between them as, “I listened and he shouted”. She agreed that she occasionally raised her voice.
The maternal grandparents stayed with the parties and at the mother’s sister home prior to moving to reside in Australia. Tensions began between the father and the maternal grandparents grew over these visits and increased once they migrated to Australia. The father was resentful that they were obliged to spend every day with the maternal grandparents when they were visiting Australia. The mother was concerned that the opportunity to spend time together was limited, and she wanted to make the most of the time available. The father regarded them as interfering in his family.
The father and maternal family have different approaches to parenting, where the father’s protectiveness of X was at times criticised as excessive or paranoid. The father regards the maternal grandmother as having held herself out to him as a psychologist, when she was not. He spoke to the mother’s sister about his difficulties with her parents, which increased tensions with the maternal family. This led to arguments between the father and the mother’s sister and her husband. The father regarded her sister and husband as condescending. There were other difficulties where the father disagreed with the mother’s sister posting a video of X on social media.
The police attended the parties’ home in 2020, following X’s first birthday party. The father was angry that the mother invited her sister and her husband. He wanted her to return the gift they gave to X. He was angry that she had apologised to her sister on his behalf. The argument moved to the involvement of the mother’s family in their lives. The father was concerned that the maternal grandparents planned to come to Australia and stay. He was worried about implications for his mother visiting Australia if they overstayed their visa.
When the mother attempted to call the police, the father took the telephone from her. She went to the bedroom where she called the police. The father also called the police. His evidence was this was an “on the spot” decision. He spoke to the police about people wanting to stay in Australia illegally. The father’s evidence was difficult to follow. The mother called the police from another room asking for assistance over the father’s conduct. When the police arrived, the records note that the father was calm and apologised. The police left without taking any action.
The mother made a report to police in late 2022 at the police station. She wanted an AVO. She was concerned that the father was about to receive a proposal from her solicitor for time with their daughter, and he would likely respond badly. The police advised that only verbal altercations had taken place, and they would not seek an AVO. The mother told the police that during an argument in early 2020, the father said he would rape her sister. No steps were taken by the Police.
In late 2022, the parties were at a retailer. They had been arguing the day before, which continued at the retailer. The father knelt in front of X, who was three years old. He told her that mum and dad would be separating. Both parties agree this occurred.
The father’s evidence is that he made an educated decision to tell X at that time that her parents were separating. He thought X was looking for an answer. He wanted her to know that her life was not falling apart. He did not consult with the mother about telling X in this manner, or at all.
The mother’s evidence is that the father’s behaviour was not in X’s interests. In her view, it mattered how they told X something so serious. She wanted the information to be given calmly to her, with the parties having resolved between them in advance what would be happening. Instead, the father told X in the middle of a retailer, after a heated argument between her parents. The parties had not discussed separating, and had no plan about what would happen.
If I find that the father’s actions satisfied his need to tell X. It robbed the mother, and more importantly X, of having such information provided in a calm way by both her parents. It put X in the middle of her parents’ dispute. It was not in X’s interest for that to happen in the way it did, and supports the submission that the father lacks the capacity to understand and provide for her emotional and psychological needs.
In May 2023, the father arrived unannounced at X’s sports lesson. There were no orders for time between X and the father. The father regarded discussions at mediation as meaning he could start overnight time. The mother says there was no agreement. X wanted to go to the café they used to go to after sport. The mother agreed to X travelling there with her father. Instead of simply driving to the café, the father drove into a carpark. The mother rang to ask what he was doing, and followed him into the carpark. She drove in front of his car to stop him. She was worried he would take X away. They argued. The mother refused to agree to overnight time, which the father wanted. The mother called the police.
The police attended and attempted to mediate between the parties. The mother offered that X could leave with him for time during the day, but not overnight. The father would not agree. As a consequence, the father did not get time with X, and the police escorted the mother and X back to her car. This all occurred in X’s presence. X wanted to spend time with her father. I accept that this is an example of the father attempting to impose his view, which put X at the centre of the dispute. It supports the submission he has limited capacity to consider her needs above his own.
The mother referred to the problems for X of seeing the police attend. Her evidence is that X, like most children, associates the police with arresting criminals. I accept that it was upsetting for X to see the police attend on her family. It involved her in the parent’s conflict. I accept that the mother was concerned about the father’s conduct, and her calling the police was a reasonable response to the situation.
The mother referred to occasions where she supervised the father’s time, as a supervisor was unavailable. She did things like sit in a car when the father and X were at a park. They went together to the aquarium. I accept that she did so to ensure X was able to see her father, whilst keeping her safe. This demonstrates the mother’s capacity to put X’s needs above her own to ensure a safe relationship with her father.
From 5 July 2023, orders were in place for time in a public place or supervised. Supervision has been by a friend or family member as agreed, rather than formal supervision.
The mother’s evidence is that on a number of occasions, the father told her he felt like self-harming or killing himself. The father took issue with texts annexed to the mother’s affidavit. He suggested he did not send some of the messages. He said he had checked his mobile phone, and messages did not appear as they did it in the versions the mother produced, and had interpreted. He denied he had deleted messages from the thread.
The father complained about the accuracy of translations from the language of Country B. For example, in a text exchange in July 2020: “I walk in front of the car, but there is something inside me that pulls me away from the car.” The father argues that it is a mistranslation of the text, and he did not threaten to jump in front of a car. The mother’s evidence is that not only did he did threaten to, he actually walked in front of cars in mid-2019.
When he was cross-examined in detail about this, the father’s evidence became more erratic, with long pauses. He accepted sending texts similar to those in evidence, for example, “Yes, I take off my clothes, but when I hear the lift, I come home.” The father thought the text looked familiar. He took issue with the use of “clothes”, and said the language of Country B has a word for singular, as in one item, of clothing; he agreed he may have deleted the message. He agreed he took off his shirt. He otherwise did not explain this conduct.
When the translation of messages was gone through in detail with the father, with the assistance of the interpreter, much of the dispute over interpretation fell away. For example, he disagreed he sent, “I have a strong desire to commit suicide right now” and agreed he sent, “I have a desire to kill myself now”. There were nonetheless problems in matching the texts sent and received by the parties in the language of Country B with the interpretation.
I accept that the father has had mental health issues at times during the relationship and after separation. I accept that he made statements about self-harm which manipulated and controlled the mother’s behaviour, and caused her fear. It is not enough for the father to say he has had help and has not behaved in that way with the mother recently. She experienced his conduct. It caused her to fear his erratic behaviour may be experienced by X more than it already has. I accept that the orders for time supervised or in a public place provide protection for X from this type of conduct.
The father was aware of the recommendation in the Single Expert Report that he attend a men’s behaviour programme. He did not make any enquiries about attending at a course. His evidence is that he was prepared to go to counselling with the mother, which he understood was an alternate to a behaviour change programme. When the mother did not participate in counselling to address co-parenting issues, he did not take steps to enrol in the men’s behaviour change programme as recommended.
Counsel for the father argued that there was situational violence between the parties in the context of a deeply unhappy marriage. It was submitted that Dr J approached the matter through the lens of coercion and control, but that was not a feature of the parties’ relationship. It was put that possible past manipulative behaviour by the father is not part of a pattern, and should not be regarded as supporting a finding of coercive and controlling behaviour.
I accept that the father has engaged in family violence during the marriage and after separation. He has argued and yelled at the mother in front of X to achieve his aims. He has made threats to the mother that he would self-harm so as to manipulate the mother and cause her to be frightened. I accept it was pervasive in their relationship. This led to the mother being concerned about having to manage his behaviour. She has been frightened that he would lose his temper or behave erratically with X as he did with her. This has spilled into her concerns for X spending unsupervised time with him.
The mother never raised with police nor other authorities the allegations of historical sexual abuse. Ultimately, she talked to her counsellor about it, and a report was made to the Department of Communities and Justice. I accept that during the parties’ evidence there were times each gave answers which suggested elements of shame and a desire for privacy of family or personal matters. I accept this applied to both parties, and despite a great deal of counselling engaged in by both, neither fully shared some highly personal information.
The father obtained a psychological assessment dated May 2023 from Mr S (“Mr S”) (Exhibit 8). He was referred to the psychologist for anxiety, depression, panic attacks, family relationship problems and issues post-migration to Australia. Although Mr S was referred to as the father’s treating psychologist, his Report did not make clear how frequently he met with the father.
The father described to Mr S poor sleep, which led to “very low tolerance threshold for normal, every-day stressors”. The father blamed his mother-in-law and wife for a variety of problems, including monitoring his behaviour, bullying, and humiliating him. The Report notes that the father “feels permanently drowsy, fatigued, anxious and unhappy”.
Under the heading ‘Diagnosis and recommendation’, the psychologist opined that evaluation and testing conducted “[a range of conditions] which trigger negative emotions such as anxiety and fear”. He advised that the father should “avoid mental pressure of any kind … and must not be subjected to additional stressors which can aggravate his mental health which is at a critical stage.” The psychologist indicated that he was treating the father therapy for his depression and anxiety. There was no indication how the father responded to this treatment.
A Single Expert Report from Dr L, psychiatrist, dated September 2023 concluded there was no evidence the father suffered from any psychiatric disorder, or specifically any personality disorder. At the time of assessment, he found no evidence of an anxiety or depression disorder. He thought it likely that the father had some level of anxiety, panic attacks and depression at the time he saw the psychologist at the height of a conflictual separation, but that he had recovered. The father adamantly denied any abuse of his nieces, and the psychiatrist prepared the Report on the basis that abuse had not occurred, absent evidence other than from the mother.
Dr L was not cross-examined. Submissions were made on the basis that limited weight could be attached to the Report given the psychiatrist’s acceptance of the father’s denial of abuse of Ms C. I accept the difficulties in placing reliance on the Report give the findings made in these proceedings.
The reports by Mr S and Dr L are written about four months apart. Given the disparity in opinion about the father’s mental health, it suggests that the father has had significant fluctuations in his mental health. It is difficult to reconcile his dramatically different presentations over such a short period. As the father’s treating psychologist, I accept Mr S saw him on at least several occasions. The father’s evidence is that he saw him “many” times between February 2023 and April/May 2023, prior to him providing the assessment. After that, he saw him once or twice. The father’s explanation for the difference in the reports is that when he saw Mr S everything was new, and it came as a shock to him. I accept that when first consulted, separation had occurred two to three months earlier. However, it would be anticipated his circumstances would not be “shocking” to him after six to seven months, and many appointments with a psychologist.
The father also consulted a psychologist in City U, Ms V, after separation. He gave evidence that he had seen her weekly, sometimes twice weekly, via Zoom. He still consults with her about every six months. His evidence is he did not do any work with her on anger management or family violence issues. He provided no evidence about this engagement in his affidavit.
The father has also consulted with Dr T. in Australia. He could not recall when he last saw him, but thought it was about six months before the hearing. There is no reference to treatment by that psychologist in his affidavit.
A Report was prepared with respect to the mother by a psychologist, Dr K. The psychologist concluded there was no evidence of a psychological or psychiatric condition, including personality disorder.
Ms D (“Ms D”) was not required for cross-examination, and her evidence was not challenged. She refers to instances when she observed the father being very concerned with cleanliness for X. She stated that he maintained a “dirty zone” near the front door of the parties’ home where, for example, the children’s outdoor clothing should remain (affidavit of Ms D filed on 6 February 2025, paragraph 3). That included pizza boxes on one occasion. She observed that when X was a baby, nappy changes were stressful because the father required a lengthy cleaning process. Some of Ms D’s observations were made around the time of the COVID-19 pandemic I accept many people became focused on concerns over cleanliness during this period, and I make no finding as a consequence of her evidence.
The unchallenged evidence of the father’s friends who spend time with X and the father as supervisors does not support that there are current issues of excessive cleanliness in the father’s parenting of X. The evidence supports X having a close relationship with her father and enjoying their time together. I accept that their relationship has been able to develop with the restraints around time arrangements.
The orders I make will support regular time between X and her father in a similar manner as has been occurring. This will enable their relationship to continue and develop whilst promoting her safety. In particular, the orders will mitigate against risks from exposure to family violence from her father.
Should the parents jointly hold parental responsibility and decision-making authority, or should the mother hold it solely?
The parties do not trust each other. They both confirmed that to Dr J, and it was apparent from their evidence. The property proceedings are not concluded, so they will continue to be in litigation with each other for some period.
X has commenced school. The parties each had competing proposals about where she should attend. This was of limited scope, as the mother observed, because they both wanted a public school and choices were limited as a consequence of schools within the area for them. The father ultimately agreed to the mother’s proposal, being the school local to her.
The father believes that the mother has colluded with Ms C to support an allegation of sexual abuse against him. Whilst this remains his position, it is difficult to accept that they would be able to sensibly discuss important matters relating to X and reach agreement, despite his evidence that he trusts the mother to act in X’s best interests.
The mother has had medical episodes associated with stress where she has experienced heaviness, pain and pressure to her body. Additionally, she experienced heart palpitations. After this occurred in July and August 2021, her GP conducted various tests. She was referred her to a psychologist on the basis that the underlying issue may be high stress. The mother has attended upon a psychologist for assistance. In mid-2024, she was taken to hospital emergency by a colleague after experiencing similar symptoms at work. She reported initially she was unable to get out of her chair, although her mobility had returned by the time she was seen in the emergency department.
Making orders that minimise stress on the mother is in X’s best interests. She needs her mother well and able to function to care for her. The mother is the unchallenged primary carer for X and orders should support her continuing in that role. The mother is the person who will be meeting X’s emotional and psychological needs, as she has been.
The parties have been able to co-operate on some issues for X, particularly from 2024. For example, the father attended X’s sports lesson in November 2024. The mother requested his help because she had an injury and could not lift X.
At Christmas 2024, the mother proposed going to Tasmania with X. She suggested to the father that he also go and could spend time with X with his relative in City W. There was some overnight time spent at his relative’s home organised between the parties. The father brought X back to Sydney.
Whilst I accept there has been some co-operation between the parties, I do not regard it as being significant enough to weigh against the history of family violence by the father. I do not accept that it would promote the safety of X or the mother to require the parties to consult with each other with respect to major long-term parenting decisions. This is both with respect to stress on the mother, and disputes which have occurred in front of X, as referred to previously in these reasons. The evidence of Dr J was clear as to the long- and short-term issues for X that arise from exposure to conflict.
For these reasons I do not accept that the parties are able to jointly make decisions about X’s long-term interests. She has only just started primary school. There will no doubt be many decisions required with respect to her education and health. The mother has competently been making decisions in X’s best interest, and I accept will continue to do so. She will be required to keep the father informed about decisions she makes about X’s long-term interests. It is important for X’s relationship with her father that he know what is happening for her. He will also continue to attend school and other events for X.
The parties have the same cultural background and religious beliefs. They are both able to give X a strong connection to her rich Q religious culture. The mother can make decisions which promote their shared culture.
Ancillary matters
I accept that the mother should be able to travel overseas with X. She is concerned about the risk of the father taking X to Country B, and risk to her if she travels to Country B. The father could prohibit her from leaving Country B on the mother’s view. The time orders do not permit overseas travel by the father as it is day time only.
The mother seeks orders that would place X on the Family Law Watchlist to prevent her being removed from the Commonwealth of Australia by the father. Although the risk of that occurring is small in the circumstances of the orders for supervised time, I propose making the order in the terms that she seeks. The orders are drafted in a manner that would allow her to remove X, but not the father.
The mother proposed an order for make-up time after overseas travel. X under these orders will be spending time with her father every week. In those circumstances, make-up time is unlikely to be significant to X, because she will resume seeing her father as soon as she returns from travel. Fitting in additional periods when there is weekly time can cause dispute between parties. That would not be in X’s interests, and I will not make that order for these reasons.
The mother seeks that the father sign a passport application for X to obtain an Australian passport, and return the application to her to lodge. There was no opposition to that order, and I will make it.
There should be no barrier to the mother travelling interstate with X. Her orders provide for notice to be given to the father. There was no issue raised with her proposed order by the father, and I propose making that order.
The orders I make include time on days special to the parties and X, and of cultural significance. These are made to promote time for X occurring. The mother’s orders with respect to time during Christmas and Easter are confusing, and contain inconsistencies of days in odd and even years, for example. The father did not seek specific orders about these occasions. Neither party made any submissions about them. I have ordered time for each party on these occasions in a manner consistent with the mother’s orders for time generally, so that each party spends time with X around the Christmas and Easter period.
The mother seeks time with X on the Saturday of the Mother’s Day weekend. No submissions were made in support of why that would be in X’s best interests. I do not propose to make that order. X will spend time with the mother on Mother’s Day because she is with her mother on Sundays. The mother also sought an order for X to spend time with the father for four hours on the Saturday of the Father’s Day weekend. The father will ordinarily have time on Saturdays. Father’s Day is always a Sunday. I will order that he spend time with X on Father’s Day.
Both parties seek that where possible changeovers occur at school. The mother seeks that otherwise it occur at her home. The father seeks that changeovers occur at either home. There was very little evidence about this. I accept, however, given the finding about family violence, that the changeover orders that the mother is more comfortable with are preferable.
The ICL and the father seek similar orders with respect to non-denigration and restraints. I will make the orders proposed by the ICL because they provide a broad promotion of respectful communication between the parties. The mother indicated at final submissions that she did not press paragraphs 24 to 30 of her Minute of order.
I have included the father’s orders permitting attendance at extra-curricular and other activities. The mother did not oppose those orders. I have not made an order for each party to be an emergency contact because in my view, that is a matter for the mother in the exercise of long-term decision-making for X.
I will make orders sought by the father for information about X’s medical and allied health, and education. These are framed as orders for information only, and do not impinge on the mother’s decision-making responsibility.
Orders for the parties to keep each other advised of their address are necessary for the changeover orders made, and I will make the father’s orders for that.
The ICL seeks an order for costs of $7,590 to be divided equally between the parties. Neither party made any submission against the order, but requested that it be dealt with at the time of the property orders. I requested that a Minute of orders be provided. That has not occurred. I shall order that each party meet the ICL’s costs equally with six months to pay because that allows a significant amount of time for payment of a modest amount. There is no timeframe of when the property proceedings may be concluded, and the parties have not taken the opportunity to provide an order as requested.
CONCLUSION
These orders finalise parenting arrangements for X. The father will continue to have a role in her life that promotes her safety. I anticipate that the conclusion of parenting proceedings will assist both parties focus on X’s needs.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 8 April 2025
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