Urbonas & Alvey - [2023] FedCFamC1F 1099

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Urbonas & Alvey [2023] FedCFamC1F 1099

File number: MLC 5780 of 2020

Judgment of: CARTER J

Date of judgment: 19 December 2023

Catchwords: FAMILY LAW – PARENTING – Where the mother asserts the father poses an unacceptable risk to the child – Allegations of family violence and child sexual abuse perpetrated by the father – Orders made for father to have sole parental responsibility for medical and educational issues for the child – Orders made for change of residence.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Cases cited:
Bielen & Kozma (2022) 66 Fam LR 59

Fitzwater & Fitzwater(2019) 60 Fam LR 212

Isles & Nelissen (2022) 65 Fam LR 288

M v M (1988) 166 CLR 69

Division: Division 1 First Instance

Number of paragraphs: 300

Date of hearing: 22 – 24 November 2023, 5 December 2023

Place: Melbourne

Counsel for the Applicant: Mr Howe

Solicitor for the Applicant: RRR Lawyers

Counsel for the Respondent: Mr Chislett

Solicitor for the Respondent: MMH Lawyers

Counsel for the Independent Children's Lawyer: Mr Allen

Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyer
ORDERS

MLC 5780 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR URBONAS

Applicant

AND:
MS ALVEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

19 DECEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.

Parental Responsibility
2.The father have sole parental responsibility to make decisions regarding medical and educational issues for the child X born 2016.
3.Prior to exercising that sole parental responsibility:
(a)the father shall inform the mother of any decision he intends to make in in exercising that responsibility;
(b)the mother has 14 days to respond to the father’s proposals and advise as to her views;
(c)if the mother so responds, the father shall consider the mother’s views; and
(d)the father shall notify the mother in writing of the decision he has made as soon as practicable after making the decision.

4.The parents otherwise have equal shared parental responsibility for the child.

Care arrangements for the child
5.From the date of these orders until 28 January 2024, the child shall live with her parents as follows:
(a)with the mother from 19 December to the commencement of school on 20 December 2023;
(b)with the father from the conclusion of school on 20 December to 12.00 pm Christmas Day;
(c)with the mother from 12.00 pm Christmas Day until 4.00 pm 1 January 2024;
(d)with the father from 4.00 pm 1 January 2024 until 4.00 pm 8 January 2024;
(e)with the mother from 4.00 pm 8 January 2024 to 4.00 pm 15 January 2024;
(f)with the father from 4.00 pm 15 January 2024 to 4.00 pm 22 January 2024; and
(g)with the mother from 4.00 pm 22 January to 4.00 pm 28 January 2024.

6.Subject to the father’s compliance with Order 20, from 28 January 2024, the child shall live with the father.
7.Subject to the mother’s compliance with Order 21, the child shall spend time with the mother as follows:
(a)during school terms, commencing on the first weekend after the commencement of the new school year in 2024 and each year thereafter, from the conclusion of school on Friday to 5.00 pm Sunday, each alternate weekend;
(b)during school terms, commencing 12 February 2024, from the conclusion of school Monday until 7.00 pm, each alternate Monday;
(c)commencing during the 2024 first term school holidays for half of all school holidays as agreed by the mother and father in writing and in default of agreement the first half in odd numbered years and the second half in even numbered years; and
(d)commencing in term two 2024, and provided the mother confirms in writing by no later than 5 April 2024 that she will be able to deliver the child to school each Monday and Tuesday, time pursuant to Order 7(a) will be extended to conclude at the commencement of school or 9.00 am Monday and time pursuant to Order 7(b) will be extended to conclude at the commencement of school or 9.00 am Tuesday.

Special Occasions
8.For the purposes of special occasions, the child shall spend time with her parents as agreed and failing agreement:
(a)in the event the child would otherwise be with the father, she shall spend time with the mother on the mother’s and child’s birthdays:
(i)if the birthday falls on a school day, from after school until 6.00 pm;
(ii)if the birthday falls on a non-school day, for four hours as agreed and in default of agreement from 10.00 am until 2.00 pm;

(b)in the event the child would otherwise be with the mother, she shall spend time with the father on the father’s and child’s birthdays on a non-school day for four hours as agreed, and in default of agreement from 10.00 am to 2.00 pm;
(c)with the mother from 5.00 pm the day prior to Mothers’ Day until the commencement of school the following day;
(d)with the father from 5.00 pm the day prior to Fathers’ Day until the commencement of school the following day;
(e)for Easter:
(i)with the mother from the conclusion of school Maundy Thursday until 12.00 pm Easter Saturday in 2024 and with the father from 12.00 pm Easter Saturday until 6.00 pm Easter Monday in 2024 and each alternate year thereafter;
(ii)with the father from the conclusion of school Maundy Thursday until 12.00 pm Easter Saturday 2025 and with the mother from 12.00 pm Easter Saturday until 6.00 pm Easter Monday in 2025 and each alternate year thereafter;

(f)for Christmas:
(i)with the mother from 5.00 pm 24 December to 12.00 pm 25 December and with the father from 12.00 pm 25 December to 5.00 pm 26 December in 2024 and each alternate year thereafter;
(ii)with the father from 5.00 pm 24 December to 12.00 pm 25 December and with the mother from 12.00 pm 25 December to 5.00 pm 26 December in 2025 and each alternate year thereafter; and

(g)with the mother for Lunar New Year from 4.00 pm on Lunar New Years Eve until the commencement of school the following day, or until 12.00 pm if the following day is a non-school day.

Changeovers
9.Changeover shall occur:
(a)at school when changeovers are scheduled to occur on a school day; and
(b)on non-school days, the mother shall collect the child from the father’s residence at the commencement of the mother’s time and the father shall collect the child from the mother’s residence at the conclusion of the mother’s time.

Schooling
10.The child remain at B School until the end of the 2023 school year.
11.From 2024 the child be enrolled at and attend C School.
12.The father is at liberty to provide the child’s school/s with a copy of these orders.
13.The father authorise any school attended by the child to provide to the mother at her cost, if any, copies of all newsletters, notices and similar documents normally provided to parents and this order is deemed to constitute such authority.
14.Both parents are at liberty to attend all school and extracurricular events to which parents are normally invited.

Provision of information
15.The parents notify each other as soon as practicable of any serious injury or serious illness affecting the child and inform the other of the treating practitioner’s name and contact details and hereby authorise such practitioner to liaise with the other parent.
16.The father keep the mother informed as to all medical and dental appointments he arranges for the child, together with the names and contact details of all treating practitioners and hereby authorises such practitioners to liaise with the mother as to the child’s attendance upon them.

Restraints
17.Unless requested by the child’s school to do so or in accordance with Order 14 herein, the mother, her servants, and agents shall not attend the child’s school:
(a)before the conclusion of school on any day the child is to come into the mother’s care pursuant to these orders; or
(b)at any time after delivering the child to school at the conclusion of the mother’s time pursuant to these orders.

18.Neither parent:
(a)denigrate, criticise or rebuke the other to or in the presence or hearing of the child or permit any other person to do so;
(b)discuss with or expose the child to these proceedings or discuss the subject matter of these proceedings with her other than to inform her of where she will be living and when she will be spending time with the other parent; or
(c)allow the child to become aware of the contents of any documents created in relation to these proceedings or other court proceedings.

Country D language school
19.Both parties shall ensure the child remains enrolled at and attends Country D language school classes on Saturdays unless otherwise agreed.

Courses and treatment
20.The father forthwith enrol in and complete:
(a)a Tuning into Kids parenting program;
(b)a Men’s Behaviour Change program;

and provide proof of completion of same to the mother within 12 months of the date of these orders.
21.As soon as practicable the mother engage a psychologist to assist her to manage the implementation of these orders, with the mother to attend not less than five sessions with a psychologist within 12 months of the date of these orders, and provide proof of attendance to the father.
22.The mother is at liberty to provide to her psychologist a copy of these Reasons for Judgment.
23.The father is at liberty to provide any counsellor/psychologist he engages for the child with a copy of these Reasons for Judgment.

Explanation to the child and discharge of the Independent Children's Lawyer
24.The order appointing the Independent Children's Lawyer shall be discharged forthwith upon the Independent Children's Lawyer meeting with the child to explain these orders to her.
25.All extant applications are otherwise dismissed and the matter is removed from the list of active cases.

AND THE COURT NOTES THAT:
A.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

The parties in this matter are unable to agree on appropriate parenting arrangements for their seven year old daughter, X, born 2016.
At the conclusion of the hearing before me, the parties were able to reach an agreement that until the conclusion of the school term this year X will remain in her mother’s primary care and continue to attend at B School. They also agreed that X will spend each weekend from the conclusion of school on Friday to the commencement of school Monday with her father. That reflects interim orders made by consent when the matter was adjourned on a part heard basis on 24 November 2023. The interim orders made on 5 December 2023 by consent continued those arrangements.
However, the parties were not able to agree as to arrangements for time over the long summer holidays, commencing on 20 December 2023, nor the appropriate arrangements for X’s care thereafter.
For the reasons that follow I have determined that X’s best interests are met by residing in her father’s primary care and spending more limited time with the mother.
The father should in no way regard this as a victory. This was a finely balanced case and each parent has demonstrated concerning deficits in their parenting capacity, their insight and their ability to act in a child focussed manner. Sadly for X, both parents have demonstrated a significant lack of insight into the impact upon her of their entrenched and unrelenting conflict. Ultimately, if their inability to reflect on their behaviour and to act in a child focussed manner remains unchanged this will likely have profound consequences on X’s short and long term development and wellbeing.
It is hoped that by making these orders, and bringing the proceedings to an end, the parents will cease their relentless search for ‘evidence’ to use against the other, and instead reflect on the damage their ongoing conflict has caused their daughter. Their conflict will continue to damage their only child – and their relationships with her – if they do not radically change their behaviours and attitudes.
Considerable care must be taken by the father to support and nurture X through this significant change in her care arrangements and to ensure that she maintains a relationship with her mother.
BACKGROUND
The parties commenced a relationship in 2010 and were married in 2014.
The Department of Families, Fairness and Housing first became involved with the family in early 2016. At that time X was a newborn. A report was made that the father had perpetrated family violence on the mother, and that the mother experienced suicidal ideation.
In 2017, the Department again became involved with the parties in relation to the parties’ ongoing family violence and X’s exposure to it. Child protection also received a report in early 2017 that the father was kissing X on the mouth. The following month, they received a report the father had “performed inappropriate sexualised behaviour with neighbours’ [pet]”.
The police were called to the parties’ home in early 2017. The report records that the mother called ‘nurse on call’ and made threats of self-harm. The police then attended at the home, and the mother is reported to have said she was having difficulties with the baby and the father was not providing much assistance. The police left the home, but returned after child protection advised they were aware the mother had made recent and credible suicidal threats and they held serious concerns for the welfare of the mother. The mother was then detained involuntarily under s 351 of the then Mental Health Act 2014 (Vic) and taken by ambulance to P Hospital. She said she was released a few hours later.
According to the Department’s s 69ZW response dated October 2022, when the mother was to be taken to hospital in early 2017, child protection obtained an emergency care order. However, it is reported that the father:
… refused to hand [X] to Child Protection, and held her tightly for around 1 hour. A friend of [the father’s] persuaded him to hand [X] over.
It is also reported that the parents continued to argue in the child’s presence that evening.
The father then refused to give consent for X to reside with the extended maternal family and another protection application was made, resulting in Interim Accommodation Orders being made for X on two occasions in mid-2017.
I do not know the length of time the parties lived separately at that time – if they did – or when X returned to live with the father.
The parties assert that they separated under the one roof in early 2018 according to the mother and early 2019 according to the father.
The police attended the home twice in early 2018 as a result of the parties’ arguments.
A further report was made to child protection in late 2018 in which it was asserted that the father was preventing the mother from providing care to X, that he had taken over bathing her and putting her to bed, was sleeping naked with X, that X lies on top of him when he is naked and he tickles her and that the father kissed X on the mouth.
Child protection determined not to take any action at that time.
The Department received another notification in early 2019 regarding X’s ongoing exposure to verbal family violence. The report sets out the mother’s concerns at that time included that the father may be sexually abusing X, that he had made threats to kill and harm the mother, and that he had attempted to harm her two weeks earlier.
At that time child protection encouraged the mother to obtain an Intervention Order. The s 69ZW response said that the mother however returned to the home. The response says “grounds substantiated with [the father] assessed as responsible”. I do not know what grounds were substantiated.
In mid-2019 another report was received by child protection that the father was preventing the mother from responding to X when she was crying and that he may be grooming X. The mother also said the father did not take enough food or clothing for X when he took her on outings.
In late 2019 the police attended the home. As best as I understand it, the parties had had an altercation over the remote control for the television. The report records the mother as alleging a family violence issue that morning, and the father as making claims of historical physical assaults. It is unclear what occurred when the police arrived on that occasion. However, it appears a decision must have been made to remove the mother from the home. As best as I can tell from the report, the police were in the process of removing the mother from the premises, when she told the police she believed the father was sexually abusing X.
The report records the mother then produced a video said to depict the father blowing raspberries on X’s stomach, blowing on her groin area, and making sure her legs were touching his groin.
Those concerns were reported to child protection. The s 69ZW response records that additional complaints were made by the parties at that time, including that the mother asserted she was then pregnant as a result of the father sexually assaulting her, and that the father asserted the mother had physically abused him and had threatened to kill him and burn the house down.
The s 69ZW response sets out that the father at that time;
… demonstrated significant parental alienation against [the mother] and seeks to continually speak about her in a derogatory and demeaning manor [sic].
Both parties were assessed as being responsible for harm. There was no substantiation of sexual abuse.
The father was excluded from the home for about three months. An Intervention Order was made with the assistance of police for the protection of the mother and X.
X was also interviewed by the Sexual Offences and Child-abuse Investigation Team (“SOCIT”) at that time. She said no one had touched her vagina and she had not touched her father’s penis. X was almost four years old.
The father subsequently cross applied for an Intervention Order against the mother. Final Intervention Orders were then made by consent and without admission for the protection of both parties in early 2020.
At some point in early 2020 the mother said the parties reconciled, before finally separating on 3 April 2020 at which time as I understand it the father was again excluded from the former matrimonial home.

X spent limited time with the father after 10 December 2019. It is the father’s case that the mother was unnecessarily controlling of his time with X. For instance, the mother required that visits in 2020 occur at her home, and these occurred only intermittently.
The father issued these proceedings on 4 June 2020 seeking to orders to spend time with X on a regular, unsupervised basis.
An order was made for the preparation of a child inclusive report.
An order was then made for the appointment of an Independent Children’s Lawyer.
In December 2020 interim orders were made by consent for X to commence spending time with her father on a twice weekly basis for daytime visits, and to communicate with her father twice a week by zoom or telephone.
On 4 June 2021, further interim orders were made for the child’s time with the father to increase to three visits per week, together with a weekly telephone or video call.
In mid-2021, the mother vacated what had been the matrimonial home, and the father moved back in. There was another report to child protection that the mother had witnessed X jumping on the father, biting and licking his ear, and licking his mouth and that the father just laughed. The s 69ZW response included this observation:
School noted that both parents appear to ‘baby’ [X], and that [the father] picks her up like a baby and carries her, talking in baby voices to each other. [X] is struggling socially at school.
In mid-2021, child protection received a further report about inappropriate touching and affection between the father and X. That included reports he kissed her on the lips, they licked each other’s ears and upon return to her mother’s care, she was overly affectionate towards the mother and wanted to lick the mother’s face, suck her ears, and be cuddled.
In late 2021, the parties agreed X would commence spending overnight visits with her father, increasing to two-night visits and an evening during term and three night visits each week during holidays. The mother was to collect X from and return her to the father’s home for the changeovers that did not occur at school. The father said the mother breached those orders on a number of occasions by withholding X from school so that the father could not collect her at the start of his time with her.
In about early 2022, the mother began taking X to F Centre. I do not know how often she attended, or whether she is still attending. Child protection received a report in early 2022 that X saw her father put his hands down his pants, and that the father may be grooming X. SOCIT were contacted and determined in the absence of disclosures by the child and a lack of corroborative evidence to take no action.
In early 2022, child protection received further complaints that the father may be sexually abusing X. It was reported that:
[X] disclosed that [the father] opened her legs, tickled, and kissed her, he kissed her everywhere including the legs. [X] laid down and she wanted [the mother] to do the same to her as [the father] did… [X] is reported to be having issues with sleeping, nightmares, stomach-ache, and she has been constipated.
It appears that these purported disclosures were made to the mother and not to a third party.
It was determined by the Department and SOCIT to take no further action.
In June 2022, child protection was advised the mother had taken X to hospital with abdominal pain. Presumably the mother asserted X may have suffered sexual abuse by the father as the child protection response refers to the E Medical Service determining to take no action “as no disclosure of sexual abuse by [X]”. She was treated for constipation and discharged.
In about late 2022, child protection received a complaint that X had returned from her father’s care with a red and swollen vulva. The mother does not depose anywhere that X has ever had a red and swollen vulva. Child protection supported the mother’s decision at that time to withhold X from the father, pending their investigation. SOCIT were involved. X again made no disclosures. Child protection closed their investigation, finding the concerns not to be substantiated.
X did not spend time with her father for about six weeks while that investigation was taking place.
In November 2022, the parties further agreed that X’s time with the father would extend to each Sunday to Wednesday, being three nights a week.
From May 2023 until about July 2023 the mother substantially did not comply with the orders for X to spend time with the father. On occasion X attended. However, it was the mother’s evidence that X was frequently unwell, and had stomach pains, or had vomited, or had a cold, and did not want to spend time with the father.
In mid-2023 the police attended at the mother’s home when the father arrived to collect X for time. The mother said X was unwell, and told the police X preferred to stay with her. The report then sets out:
The [mother] then disclosed to police previous possible grooming behaviour and possible sexual abuse occurring for the last two years. Some of these behaviours include the [father] kissing their daughter on the lips, neck and ears.
The report further records the police officer was able to ascertain the allegations had been investigated previously and would not be re-investigated. The police then told the mother she would need to comply with the court order and as best as I can tell X went with her father. I do not know whether X was aware the police attended, but it seems highly likely that she would have seen them at the home. The police recorded they had nil immediate concerns for X’s welfare.
In mid-2023, the mother obtained a further Intervention Order against the father, on an interim basis. The order names the mother and X. I do not have the complaint tendered in evidence before me, so I do not know the basis upon which that Intervention Order was granted. However, the Intervention Order contains the usual clause that allows the father to do anything permitted by a Family Law Act order.
I understand X spent some time with her father in July 2023. However, from 6 August 2023 the mother ceased all time. In her trial affidavit the mother deposes that she was acting protectively in doing so, responding to “the recent concerns against [the father], the decline in [X’s] health and [X’s] express wishes that she felt unsafe with the Father”. I note there is no medical evidence before me about X’s health. Additionally, there is no independent evidence that X feels or has ever felt unsafe with her father.
A short time later, the mother again reported to child protection that the father was sexually abusing the child. The alleged sexual abuse by the father of X is recorded in the report of that date as follows:
… kissing her on the lips, playing with his feet on her, sucking her ear and private parts and laying on the bed with her.
These complaints were then forwarded to the police. In her oral evidence the mother denied she ever reported that the father had “sucked” on X’s “private parts”.
In late 2023, the father attended at B School and collected X. She had not seen him since August 2023. He retained her in his care until Wednesday 22 November, being the first day of trial. The mother did not consent to the father taking X from school that day. However, the police and the principal agreed the father could do so.
It does not appear to be in dispute that X left the school happily with the father, and that she enjoyed spending time with him.
As already observed, by consent the parties were able to agree that X’s time with her father would occur each weekend from Friday after school to before school on Monday until the end of the school year in 2023. The mother said, however, that X was unwell again upon returning from the father’s care.
The mother’s case
It is the mother’s case that X is at risk of harm in the father’s care. She has an unshakeable view that the father engages in an inappropriate and overly affectionate manner with X and that he has or may in the future sexually abuse X. She could not be confident that he had not had sexual intercourse with X. If he had not already had sexual intercourse with X, the mother was worried it would happen in the future, when X was a little older.
The mother also has a firm view that the father is unable to attend to X’s medical, emotional, and physical needs. It was her evidence that the father has caused X to experience injuries, and ill-health, and that it was inappropriate for the father to care for X at any time she was unwell.
As set out, the mother has reported her concerns to the Department and to Victoria Police on multiple occasions. There has been no substantiated allegations of sexual abuse or risk of abuse by the father.
The mother proposes she have sole parental responsibility for X and that X live with her. She further proposes that X’s time with the father occur on a supervised basis for twelve occasions and that after the father obtains “a positive Supervised Progress Report from the contact service” (whatever that might be), time progress to unsupervised, short, daytime visits including on special occasions. In addition she proposes weekly electronic communication occur.
The mother also wishes for X to continue at B School, being a school into which the mother unilaterally enrolled X commencing term four 2023. Prior to that X was attending C School. It is the mother’s case that she has now secured housing for herself and X in Suburb N. She also said X did not like attending C School as X has urinary issues which were not accepted by the teachers at C School and that on occasion X had wet herself in front of her peers. The mother said X had become reluctant to attend at C School, and indeed the mother had been attending to home school X for part of 2023. Accordingly the mother determined to change X’s enrolment. The mother says X is settled at B School and that her needs are better met there.
Counsel for the mother acknowledged in closing that the evidence would not support a positive finding that the father had sexually abused X. He also conceded that based on the evidence, the court would not be likely to consider that the father posed an unacceptable risk to X moving forward. However, the mother’s position remained that supervised time should be imposed, and thereafter limited day time visits only. It was his submission that the mother was unlikely to manage supporting more extensive time between the father and the child. He emphasized that the mother was the child’s primary carer, had been throughout her life and that a change in residence would likely be confusing and upsetting for X.
The case advanced by the father and the Independent Children's Lawyer
It is the father’s case – and that of the Independent Children's Lawyer – that if X remains living with the mother, she will likely be deprived of the benefit of having both parents meaningfully involved in her life.
The father says the mother has unnecessarily limited and interfered with X’s time with her father since separation. Although court orders were made by consent on 2 November 2022 for X to spend six nights a fortnight with the father, as of May 2023 that arrangement had significantly broken down. As already set out, from 6 August 2023 the mother had not made X available at all to spend time with the father until shortly before the commencement of this final hearing.
The father and the Independent Children's Lawyer proposed that the father have sole parental responsibility regarding medical and educational decisions for X. They proposed she live with the father, with the transition into her father’s care being made over the long summer holidays with time being shared on a week about basis. Thereafter it was proposed X live with her father, and spend time with the mother from term one 2024 on alternate weekends, on alternate Monday afternoons, for half of all school holidays and on special occasions.
Accordingly, the matters I must determine are:
(a)what are the appropriate care arrangements for X; and
(b)how should parental responsibility be allocated for X.
In determining the appropriate care arrangements I must consider the risk issues raised by the parties.
THE EVIDENCE
The mother relied on:
(a)her Further Amended Response to an Initiating Application filed 17 November 2023; and
(b)her affidavit filed 20 November 2023.
The father relied on;
(a)his Further Amended Initiating Application filed on 6 November 2023; and
(b)his affidavit filed 29 October 2023.
Counsel was reminded at the outset that pursuant to rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) none of the voluminous annexures in the parties’ affidavits were admitted into evidence and would need to be tendered in the usual course if they were sought to be relied upon. Only a few documents were so tendered.
I note that the affidavit material for the mother in particular was poorly prepared. It was repetitive, and contained many conclusions without setting out with precision the evidence which provided the foundation for those conclusions. It was disorganised, and at times inconsistent.
The father’s affidavit also contained summaries of child protection reports, and quoted from those reports as well as from Family Reports. Additionally, it contained purported summaries of material produced under subpoena, statements of opinion, and submissions. None of this was helpful. It is unnecessary and is not evidence. Affidavits are to be confined to a deponent’s evidence – what they themselves have observed, or heard.
Both trial affidavits were unnecessarily long. There had also been some obvious ‘cutting and pasting’ from earlier affidavits. For instance, the father deposes in his trial affidavit sworn 27 October 2023 that he had not yet been informed of the outcome of the child protection investigation conducted in September 2022. The department closed their investigation prior to the interim hearing in November 2022 at which time the outcome was known by the parties and the court. He also deposed to Mr G Family Report having been prepared “some six months ago”. Mr G’s report had been filed some 18 months before he filed his trial material, and a further Family Report had been prepared by Ms J.
This poor drafting is not acceptable. It does not assist the court, and it does not assist the parties. The solicitors need to take better care to ensure that affidavits are properly prepared, are limited to relevant evidence, and of assistance to the court. Their responsibility to do so arises irrespective of whether they are privately funded or funded pursuant to a grant of aid or under the cross-examination scheme.
Both parents were cross-examined. Neither was an impressive witness. Their evidence revealed significant deficits in their parenting capacity, an inability to consider circumstances from X’s point of view, their poor attitude towards each other, and a lack of insight into their role in the conflict.
Both parents impressed as focussed on gathering evidence and using that information strategically to forward their application in this Court rather than looking for ways to resolve disputes in a manner that advanced X’s best interests. For instance, the mother video recorded X making statements about being unwell and wanting to remain in her mother’s care. They have also both clearly involved X in their dispute and both appear unable to perceive the impact this has on their child.
The Court also had the benefit of reports as follows:
(a)affidavit of Dr H filed 21 November 2023;
(b)affidavit of Ms K filed 21 November 2023;
(c)the Family Report prepared by Mr G on 25 March 2022; and
(d)the Family Report prepared by Ms J on 5 April 2023.
Only Ms J was required for cross-examination. In her report, Ms J had recommended that X live primarily with the mother and spend four to five nights a fortnight with her father. That recommendation was substantially based on X having a closer relationship with her mother, the inability of the parents to work cooperatively to co-parent, the manner in which X’s parents had embroiled her in their conflict, and the consequent stress moving frequently between two households was causing X. In her oral evidence, Ms J confirmed she had not recommended a reduction in time out of concerns X was at risk of being abused in the father’s care.
Notably at the time Ms J saw the family, time was largely taking place in accordance with the November 2022 orders.
Ms J was provided with the parties’ trial material and with a transcript of the evidence given by both parties prior to giving her oral evidence. Ms J indicated that she had changed her recommendation to supporting the position adopted by the father and the Independent Children's Lawyer. Significantly, Ms J was troubled by the mother’s strong view that the father has behaved in sexually aberrant ways, including with X. Ms J agreed that the mother would find it very difficult to support and encourage X’s relationship with her father if X remained living with the mother.
THE LAW
Section 60CA of the Family Law Act 1975 (Cth) sets out that when deciding whether to make a particular parenting order in relation to children, the paramount consideration must be the best interests of the child. That requires me to focus on the effect on the child of the respective proposals of the parties, and to consider the short and longer term impacts on the child’s wellbeing of the proposed orders: Bielen & Kozma (2022) 66 Fam LR 59 at [71] and [30].
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. Those objects include ensuring the child has the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the child’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to their best interests, a child has a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
Section 60CC of the Family Law Act sets out a raft of considerations I must take into account in determining what is in the child’s best interests. The primary considerations set out at Section 60CC(2) require me to consider:
·the benefit to the child of having a meaningful relationship with both of their parents; and
·the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect a child from harm.
The additional considerations are contained at s 60CC(3). The Full Court in Bielen at [35] recently conveniently grouped those as follows:
·Issues relating to the child – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with the child, whether a parent has fulfilled obligations, their attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
Whilst the mother asserts the father presents a sexual risk to X, there is no separate category of sexual abuse cases. This is a parenting case, and my central duty remains to make orders in X’s best interests. I am not under the same duty to determine a disputed allegation of sexual abuse in the way a court determining a criminal charge would be. Clearly, if a finding is made of sexual abuse, that would have an important, if not decisive impact on the determination of what orders are in a child’s best interests; M v M (1988) 166 CLR 69 at [23]-[24].
DOES THE FATHER POSE AN UNACCEPTABLE RISK TO X?

In determining X’s best interests, I must consider whether the father poses an unacceptable risk to her. It has been clarified in the Full Court in the case of Isles & Nelissen (2022) 65 Fam LR 288 that in determining whether there is an unacceptable risk I must:
(a)first consider the allegations of abuse as made and determine on the balance of probabilities whether or not the abuse occurred;
(b)secondly, I must then consider whether, moving forward, there is an unacceptable risk to the child. That involves a consideration of where on the continuum of chance – between remotely possible, and highly possible – the risk for this child lies, and whether “the risk [is] so potent it cannot be tolerated: it is unacceptable”: Austin J in Fitzwater & Fitzwater(2019) 60 Fam LR 212 at [139].
These are two separate enquiries. The second predictive step it is an evidence-based conclusion which will inform my overall determination of what is in the child’s best interests. It is not a determination made on the balance of probabilities.
I will consider the mother’s allegations of abuse, and the question of whether the father poses an unacceptable risk to X. I will then turn to the primary and additional considerations as set out in the legislation.
What are the allegations made by the mother?
The mother referred to people having an “area”, or a “front section”. She clarified that to mean she was referring to the genital area.
As best as I could understand the mother’s concerns about the risks to X include that the father has acted in a sexually inappropriate manner with X, including that:
(a)he kisses her on the lips, neck, face and tummy “next to the front section”
(b)that the kissing and cuddling is “too long and too much”;
(c)he has blown raspberries on her abdomen/groin;
(d)he lies on top of X, and rubs his body on hers;
(e)in 2021 he sucked X’s ear;
(f)he sucked her mouth when she was 14 months old;
(g)he has put his foot on her vagina, and used his feet “to tickle and twisted [X’s] front section”. In another part of her affidavit the mother deposed when X was three years old, she saw the father “putting his feet on [X’s] private parts to tickle and play with her”;
(h)he allowed X to touch her genitals when she was four years old, despite the mother telling her not to do so; and
(i)he kisses X and plays with her “between the legs”.
According to the report of August 2023, there was an allegation that the father had sucked X’s “private parts”. As already set out, the mother denied she made that allegation. She said she told the police:
[THE MOTHER]: Number (1) is suck tongues. Number (2) – yes. Number (1) is suck her tongues like adult. Number (2) suck her ears. Number (3) he lie on top of her days and nights and days and nights, many days like that.
The mother said when X was 14 months old, she kissed the mother and her brother “like adult”. In another part of her affidavit she said X kissed the mother’s brother “on the mouth by sucking his tongue”. It remains unclear to me how it would be that the maternal uncle would have his tongue near enough to X’s mouth that she was able to suck it.
The mother said when she facilitated visits at her home in 2020 when the father arrived, X would lie down on the floor, open her legs, and ask her father to cuddle her. She said the father would then “lie on top of her, and then twisting and playing in front of me”. She said that the father lying on top of X has caused X to develop issues with frequent urination. She said that when the father was staying in a hotel in 2021, she again saw X lie down, and that he would lie on top of X and kiss her “everywhere”.
The mother also said that in June 2021 at a family wedding she saw X “hold father front section [sic]”, which was clarified to mean that the child grabbed at the father’s penis. The father told X not to do that again. It is difficult to understand why the mother felt that incident suggested X would be at risk in her father’s care.
The mother said X has also reported to her that when she spent time with the father in 2021, they spent hours in bed, kissing, cuddling and playing with each other. She said in June 2021 X put her hands inside her own underwear and told the mother “I copy Daddy”. This event was re-told later in the mother’s affidavit, and given another date, of January 2022. At that part of the affidavit the mother said she observed X putting her fingers down her underwear and saying “I copied Daddy”.
The mother said in September 2022, X returned home from her father’s care with “scratches on both sides of her vagina”. At that time child protection record they received a complaint the child returned from her father’s home with a red and swollen vulva. That was not a complaint to which the mother specifically deposed. In relation to the scratches, the mother said X could not tell her how they were caused.
The mother said around this time X would wake up teary, complaining of stomach-aches and refusing to go to school.
The mother said by engaging in these overly affectionate and boundary blurring behaviours, the father was grooming X either so he could sexually abuse her himself in the future, or he was exposing her to the risk of being sexually abused by another adult.
The mother said when X returns home after spending time in the father’s care, she wants lots of kisses and cuddles from her mother. She said X is also overly affectionate to her friends at school, and “disinhibited with complete strangers”. She described that X pays particular attention towards men, with almost no explanation as to what that might mean.
The mother prevaricated in her evidence as to whether the father had sexually abused X or not, saying she could not confirm she had actually witnessed sexual abuse, but neither could she be satisfied that it had not occurred.
The mother said she expected the father would ultimately be criminally charged as a result of his behaviours, and that only she could properly protect X. She also said she believes the father has told X not to tell anyone what he is doing to her.
Some of these allegations were not contained in the mother’s affidavit, but raised by her in her oral evidence.
The mother also referred to other suspicions and concerns she had around what she regarded as sexually aberrant behaviours of the father as follows:
(a)that the father has engaged in a sexual relationship with his sister, which the mother believes is ongoing;
(b)that the father had engaged in a sexual relationship with an older male friend with whom he travelled around Europe; and
(c)that the father “played weird and unacceptable” with the neighbour’s pet, insinuating there was something sexually deviant in the way he played with the pet, and let it sleep on his lap.
The information upon which the mother appeared to form a view that the father was in an incestuous relationship with his sister included:
·the mother smelt the sister’s perfume in the father’s bedroom;
·the father told her his sister had slept in his bed when the mother was at the hospital giving birth to X;
·that she heard his sister offer to massage him;
·that he has been on holidays with his sister;
·that his sister sent very dirty jokes to the father on his phone; and
·that when X went to spend time with her aunt and cousin, she came back talking about getting married.
The mother also said the father disclosed to her that he had been sexually abused as a child. That was put to the father who denied ever having been abused, or ever telling the mother that he had been.
In addition to the allegations of sexual misconduct, the mother said the father does not attend to X’s physical needs. That includes that he does not dress her appropriately, he does not attend to her medical needs, he does not administer medicine appropriately, and he cannot feed her properly. The mother also complained he did not feed X lunch or snacks, and that the father played outside with X for too long, when she has been dressed insufficiently for the weather and has caused X injuries or bruises as a result of playing with her. The mother also deposed to X returning sick, exhausted, and unwell from the father’s care, causing her to miss many days of school.
It was also the mother’s evidence that all of X’s physical ailments were caused by the father’s interactions with her. As best I can tell the mother said X’s abdominal pain and school refusal began in late 2021. The mother attributed X’s stomach aches, constipation, urinary tract infections and even her contraction of COVID-19 to the father and what she regards as his deficient care of her.
In her trial affidavit, when explaining why she ceased time the mother said;
I became concerned [X’s] body was getting sick easily being in her father’s care because she ate too much processed food too early and too much for so long, and her father groomed her too much at a very young age, which caused her urinary system to become ill easily and cause stomach aches.
The mother’s assertions as to X’s pain, illnesses or the causes of these issues were not corroborated by medical evidence. At its highest, the mother said X had suffered frequent urinary tract infections and constipation. There was absolutely no evidence before me that linked these issues with possible sexual abuse, or poor or neglectful parenting by the father. It is the mother’s belief that X has to go to the toilet frequently and experiences abdominal pain because the father has lain on top of her too much. The mother remained steadfast in her belief that X’s physical complaints arose from the father having ‘played too much’ on X’s “tummy area”, and having lain on top of her and rubbing “in that section”. This evidence was difficult to understand.
The mother relied on a small and grainy video taken by her in about December 2019 of the father interacting with X. X was three years old and lying on her back on the floor. The father is on his hands and knees over her, playing with her, blowing raspberries on her abdomen, and laughing with her. It appears he is aware the mother is recording the event. X is squealing with delight.
There is nothing in that video that could be described as problematic. However, in her oral evidence the mother said that video showed the father kissing X on the stomach and “down to the private section”. When asked if she asserted he put his mouth on X’s vagina the mother said she could not see that exactly, but “I saw in that section … kissing her and playing with her that section [sic]”. She later said she did not see him kissing X’s vagina in that video but “that area, that’s where he kiss and play with her every day [sic]”. She also said that X told her that the father kisses her “everywhere” and that the father “every day he play with her at that section. Too much, too long [sic]”. When asked what did she mean by “that section”, the mother said she was referring to “between the legs” and that in the video “I believe he touched that area when he play like that”.
The father strenuously denied being sexually inappropriate in any way at any time with X. He acknowledged that he does kiss X on the lips, and demonstrated a very quick ‘peck’ on the back of his hand. He denied there was anything sexual or inappropriate about that. He said that on the very odd occasion he had made X laugh by nibbling on her earlobe, which he said was a funny thing his grandmother had done to him as a child. He denied licking X anywhere or permitting her to lick him. He denied ever ‘opening her legs’ or tickling or kissing her between her legs or on her genitals. He said he had not put X’s fingers on her own vagina and the only time he ever touched her genitals was when he was changing her nappy and wiping her as an infant. His evidence was to the effect that the mother had repeatedly – and perhaps mischievously – misinterpreted innocent, loving play, and interactions in a sinister and disturbing way.
The father also denied that he did not appropriately meet X’s needs. He further denied the mother’s allegations that he had an incestuous relationship with his sister or that he had ever interfered with the neighbours’ pet.
There have been multiple reports to the Department regarding risks to X to which I have already referred. X has never made a disclosure to child protection or to the police that her father is inappropriate towards her in any way. X was interviewed by the police in late 2019 and denied that the father had touched her genitals, or that she had touched her father’s penis.
When it was put to the mother that the Department and SOCIT had investigated her complaints of sexual abuse/potential sexual abuse and found the claims unsubstantiated, the mother said that the police and child protection do not like her. She also asserted that the father may know someone who works in child protection, suggesting that the investigations have been stymied as a result.
I note X had attended with F Centre. There was no material produced from F Centre or any evidence from any counsellor there to indicate X ever made a disclosure in the course of that counselling of any inappropriate behaviour by the father towards her. Whilst the mother repeatedly said F Centre formed the view that the father was grooming X, I note they never met the father, and had only the mother’s reports to go by. Nothing from F Centre was tendered into evidence.
The mother’s evidence as to the risk of sexual abuse/incidents of potential abuse was unconvincing, perplexing, and implausible.
This is, accordingly, not a case in which I could, on the balance of probabilities, and bearing in mind the gravity of the allegations, come to a positive finding that the mother’s allegations are well founded.
Is there an unacceptable risk moving forward?
That does not end my consideration. I must also consider and weigh the evidence, focussing on future risks. This is a predictive exercise, which as the Full Court said in Isles & Nelissen “entails a forecast” (at [125]), based on the known facts and circumstances.
In my view the risk to X of being abused by her father in the future is remote. There was nothing in the evidence before the Court that that could be said to raise an unacceptable risk of harm to the child. The mother’s concerns appeared to reflect a conservative outlook, which could be explained by her cultural expectation that as the mother she would raise and tend to the child, and the father should play a very ‘hands off’ role. The mother’s allegations did not appear to have a foundation in reality, and at times were difficult to follow, with the mother referring to the father touching X in “the area” which was used by the mother to mean her abdomen at times, and her genitals at other times. The mother conceded she had never actually seen the father kiss X on her genitals. Nor did X ever tell the mother, or anyone else, that her father has touched or kissed her genitals.
I have also had the benefit of a risk assessment completed by Dr H in November 2023. Dr H assessed the father to be at low risk of abuse or neglect of X. Dr H was not required for cross-examination. I note this was not a psycho–sexual assessment. However, in my view this report provides some support to my assessment that the risk to X in her father’s care is remote.
Having made the determination that the father does not pose an unacceptable risk to X, I now turn to the primary and additional considerations to determine what arrangements for X’s care are in her best interests.
THE PRIMARY CONSIDERATIONS
The parties agree X will benefit from having her mother meaningfully involved in her life. I agree. Notwithstanding the criticisms I make of the mother in these reasons, it is clear that she otherwise cares very well for X, that X is very bonded to her, and that the mother loves X deeply.
The mother seems to have some reservations about the benefit to X of the father being meaningfully involved in her life. Indeed, the mother’s evidence about the father and the role he should play in X’s life was confusing and contradictory. On the one hand the mother repeatedly said the father’s role in X’s life was “very important” and that she would not interfere with that relationship and indeed she promoted that relationship. However, the mother also insisted that it was necessary for X’s safety and wellbeing to curtail her time with her father, and repeatedly referred to her belief that the father was grooming X, and that he may have, or likely would sexually abuse her in the future. The mother has also repeatedly prevented X from spending time with her father, even when this has been in breach of orders.
THE ADDITIONAL CONSIDERATIONS
Issues relating to the child – including their views, level of maturity, culture and relationships
At interview in March 2022, Mr G recorded X indicated she wanted equal time with her parents. He said that was typical for children of her age, who tend to say they want equal time in the hope that their parents will stop fighting. However, X then went on to provide what Mr G described as “too elaborate an explanation” as to how that time should be structured. The father subsequently admitted to Mr G he had discussed those arrangements with X the night before.
Mr G also recorded:
44.… [X] is aware her mother wants her to have less time with her father and she was clear that she didn’t want less time.
Accordingly, it is apparent that both parents have made their views clear to X.
The observations sessions indicated X had relaxed and comfortable relationships with both parents.
When interviewed in March 2023, X told Ms J that she has fun at her father’s home, and was “excited” when she thought about spending time with him. It was apparent to Ms J that X knew her parents distrust each other, and was aware of the conflict. She heard her parents yelling, and described her experience of moving between their two homes as “disappointed and frustrated”. Ideally, X wanted the two houses to be combined.
The observation session between X and her father indicated a playful and affectionate relationship. However the Family Report writer noted the father appeared to question X about what had occurred that morning, which gave the impression he was attempting to obtain information from X to use against the mother.
The observation session between X and her mother was described as being calm and comfortable.
Ms J said X clearly enjoyed a close bond with each of her parents. However, Ms J also expressed concern about X being embroiled in the parental dispute. She observed as at March 2023:
58. … [X] is currently of an age where she remains loyal to each parent and is pleasing in nature. It is common for children of this age to say they want equal time, or relay information they know will keep a parent happy. This can place enormous pressure on a child as they navigate not only two households and parenting styles, but parental conflict. The parties are not able to co-parent or communicate effectively about [X], again, placing burden on [X] to be organised with belongings and at times be the messenger between the parties. This was observed during the parties’ time at Registry when [the father] was observed making statements to [X] that were considered a direct message to [the mother]. In this instance, it did not seem appropriate to place [X] with this pressure and burden of [the father’s] frustration. It was an adult issue, one in which [X] does not need to be a part of. It was of concern this was occurring in full view of the writer, which could pose the question of how often this may happen when not in the presence of others.
It is the mother’s evidence that X only wants to spend daytime visits with her father, and that more recently X had expressed a view that she did not want to see her father ‘at the moment’. The deposed that from early 2023 “[X] was sad and terrified every week when she returned back to my care”. She confirmed this in her oral evidence, and described that X is sometimes terrified of her father. That is very much at odds with the observations made by Ms J.

In circumstances where there had been a complete cessation of time between X and her father from August until 20 November 2023, the Independent Children's Lawyer met with X on 21 November 2023. With the agreement of the parties, counsel for the Independent Children's Lawyer advised the Court in relation to that meeting as follows:
(a)X had reported to the Independent Children's Lawyer she would like to see her father on Sunday during the day and Tuesday after school. That appeared to reflect the mother’s proposals. I note the specificity of that strongly suggests the mother has discussed these arrangements with X;
(b)The Independent Children's Lawyer said X also said she likes her new school, is not scared of either parent, and says it is “good” with both her parents;
(c)According to the Independent Children's Lawyer X did not appear to have been upset or distressed that her father had unexpectedly collected her from school the day before. She appeared content for her father to collect her from school on that day as well.
Given X is only seven, and in light of the attempts by her parents to influence her views, I put little weight on her views as to the time she should spend with either parent.
I am satisfied that X has close and loving attachments to both her parents. It is common ground that the father has been very involved with X since she was born. She has lived primarily with her mother since the parties’ separation. The time with her father was initially limited and confined to daytime visits only. Since overnight visits commenced, they have at times been interrupted. X has spent limited time with her father since about May this year. Time ceased entirely in August 2023 and has only recently resumed. It is not in dispute that X was quite happy to see her father when he collected her from school on a Monday in late 2023. This suggests X’s connection to her father is strong, having not apparently been significantly impaired despite an absence of over three months.
Issues relating to the parents – including decision making, time spent with the child, whether a parent has fulfilled obligations, their attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
Both parents clearly love X very deeply and wish to play an important role in her life.
As already observed, both parents revealed significant deficiencies in their ability to be child focussed. They both readily see what they regard as flaws in the other’s parenting, but demonstrated no real capacity to reflect on their own shortcomings. They were both emotionally quite immature. They have both embroiled X in the parental dispute and neither appeared to appreciate the burden they placed on their young daughter in doing so. As Ms J opined, both parents remain adult focused and demonstrated:
65. … little insight into how their actions are affecting [X]. There is significant mistrust in one another, and [X] is acutely aware of this. Should this continue, the parties are at risk of paving the way for setting up a scenario where [X] may choose to reject a parent, and the emergence of resist and refuse behaviours in the future.
I share those concerns.
It was also evident that each of the parents perceive themselves to be the superior parent and that the way they parent and provide for X should be adopted by the other. I note the father described himself as “better at” a number of parenting skills to the Family Report writer. This attitude has resulted in the parents arguing over routine medical treatment for X, and simple matters such as her bedding and diet. For instance, the father regards the mother’s provision of food for X when she is to spend time with him as invasive and unwarranted.
It was also apparent that each of the parents, somewhat immaturely, believes any criticism X expresses about the other parent, in so far as those criticisms accord with their own view of the other parent. For instance, the father said X thinks her mother is a liar, and he has not corrected her. He acknowledged that he also thinks her mother is a liar. I note the father’s entry in his diary note from 1 April 2023 records:
[The mother] is such a liar. Even [X] says so.
The father also said X had complained about the mother’s house having mould on the wall and the mother being messy.
Similarly the mother said that the father cannot care for X properly when she is unwell, as X told her that the father never lets her take her medication.
The father in particular seemed somewhat fixated on his “rights” and entitlements as a parent. It did not reflect well on him that he refused to stop kissing X on the lips and instead just give her a kiss on the cheek despite knowing how much discomfort this causes the mother. It appeared it had not occurred to him that it may be appropriate for him to make a small modification to his behaviour in order to reassure the mother and remove a point of conflict. Rather, he felt he was entitled to show affection to X as he pleased, and not required to take into account the mother’s views.
The father
The father is 59 years old. He lives in Suburb L, and works for himself. He said he can tailor his commitments to ensure he is available to care for X outside school hours. He has not re-partnered.
Prior to separation the father described himself as very engaged in the raising of X, including bathing her, feeding her, putting her to bed and taking her on outings. Post-separation he has tried to remain an involved and engaged father, but says the mother has sought to exclude him from X’s life, and limit her time with him.
The father presented as quite rigid and fixed about his ‘rights’, and what was ‘fair’. At trial the father struggled to acknowledge the moratorium he initially sought on the mother’s time would be difficult for X. He felt it was only ‘fair’ that the mother be deprived of time with X just as she had deprived him of time for over three months preceding the trial. This could not be described as being at all child focussed.
I note the father said he has meticulously recorded all incidents and events. That diary covers six years and spans over 400 pages of notes about X and his interactions with the mother.
Whilst the father presented as somewhat rigid, Dr H did not form the view that the father suffered from any formal mental health issues and presented as low risk to X.
The father took opportunities to denigrate the mother in his oral evidence and in his affidavit material. For instance, he referred to the mother having driving infringements, and gambling issues which seemed to have little relevance to the issue at hand.
Until the mother ceased all time in August 2023, the father had been firmly of the view that time should be equitable and fair. At trial he explained that he had sought equal time as this was “about fairness. I think mothers and fathers should have equal rights … equal time, equal rights … In fairness to the child”. The father reported to Ms J in March 2023 that he wanted seven nights a fortnight and that any lesser amount of time in his care would be “discriminatory”. Ms J said:
26. … [i]t was the writer’s impression he will continue with litigation until he obtains the outcome he desires. [The father] was adult focussed with his views about time, and rigid with his calculations, stating exactly how much time he believed was owed to him due to current orders “not being adhered to”.
Ms J further observed that the father appeared to find it difficult to consider the question of X’s time with her parents from X’s point of view. Instead he remained “focused on his own needs and what he believes to be fair” and that he displayed little insight into how his attitude may contribute to X’s distress.
I formed a similar impression.
It seemed to me that the father’s ability to consider the parental conflict, the stress that causes X, or the proposed care arrangements from X’s perspective was very limited. His adult centric attitude was reflected in the father’s ‘tit for tat’ reasoning about the necessity of a moratorium. Whilst that proposal was ultimately abandoned, the fact that the father ever proposed it for the reasons he articulated remains troubling. He also referred to him not having X on a Friday or Saturday night for years.
Another example of the father prioritising his needs can be found in the father’s insistence of electronic communication going over time. The father acknowledged that on occasion, he had encouraged X not to terminate the call at 6.30 pm being the end point stipulated under the orders. He justified his action, saying X was not ready for the call to end, that at times the mother had not facilitated calls, and that he did not think there was any harm in talking to her for extra time. He acknowledged at times the calls would continue for another half an hour. He did not seem to have any regard for the evening routine in the mother’s home that his extended communication was interrupting. Nor did he appear to have any insight into the position he put X in when her mother was asking her to end the call and he was telling her she could remain talking to him as long as she liked.
The mother deposed to the father being unrelenting in his desire for increased time with X. She deposed that he frequently sought additional time with X, and that if the mother agreed, he would not have X ready at the agreed time for the conclusion of the visit, and the mother often had to wait for more than an hour for X to be returned. That evidence fitted with the impression I had of the father.
I have some concerns that the father is somewhat dismissive of the mother’s, and X’s rich Country D heritage. The father acknowledged that he did not like X and the mother speaking in Country D language when he felt they were talking about him. He also said that prior to separation he did ask the mother to speak in English to X when he was present. He felt it was rude and disrespectful otherwise.
The father also was somewhat dismissive about X’s attendance at a religious site, and it appears he did not really support her attendance there.
In his trial affidavit the father deposed:
c. The [mother] has her [Country D] culture, her family influence and her set ideas. I, on the other hand, have Western upbringing which is very different to the [mother’s] [Country D] upbringing. We live here in a Western society.
The father denied this suggested he regarded his upbringing and Western society as superior. His oral evidence was that he appreciates the importance of ensuring X remains connected to her Country D heritage, and I am somewhat comforted that the father said he would ensure X attended Country D language school on Saturdays. He also said he would take X to practise her religion on Sundays on occasion, if she wanted to attend. However, he also said that X no longer wants to attend “so I would not bother about that”.
It is not surprising that X might tell her father that she does not want to attend, in an effort to tell him what he wants to hear. The father needs to become more attuned to these sorts of issues.
Whilst the father said that the mother could be a good mother, at other points in his evidence he was critical of her and her parenting. At one point he gave evidence that X had disclosed her mother had smacked her so hard with an object that it broke. He did not contact the mother about this allegation, or X’s school. In his trial affidavit filed 29 October 2023 the father said the disclosure was made “recently” and that he advised child protection of that disclosure “recently”. In his oral evidence the father could not accurately remember when X was said to have made this disclosure, but thought it was about five or six months ago. He said he reported it to child protection about two months ago, when the mother was overholding X and he called them to see if they could assist. He said he was informing child protection that the mother was perpetrating family violence on X by hitting her and by withholding her. The father checked his phone and confirmed he had called child protection on two occasions in late 2023.
On the second day of the trial, the father produced his diary entry that suggested the statement was made by X considerably earlier than he remembered, on about mid-2022. He was unable to adequately explain why it took him well over a year to report the matter to child protection, or indeed why he did report the matter when he said he had done so. He also said that incident was not the main reason he called child protection.
The father was taken to an earlier affidavit sworn by him in which he deposed he had informed the police in early 2020 about X having been hit. The father said that was the same incident. That time frame cannot be correct, as the alleged incident did not occur for another three months.
There is nothing in the police material to which the Court was taken to that confirmed the police were ever informed that the mother had hit X with a ruler.
The father also told the Court that he did not discuss this matter with X or make any comments about it. However in his trial affidavit he deposed that he told X “mummy is not allowed to hit you and that if she does it again then you should call or tell me immediately”. His diary entry was similar. He was not able to explain this inconsistency.
The father’s evidence in relation to his perpetration of family violence was somewhat evasive and minimising. The father deposed to vehemently denying any family violence. However, under cross-examination he conceded that was not accurate. I will consider this aspect later in these reasons. Notwithstanding that the father deposed having undertaken six sessions of a Men’s Behaviour Change Program, when asked about the program he said he did not actually remember attending any sessions.
It also became apparent that X stays up quite late in the father’s care. The father must ensure that he implements a child focussed routine in his household. That will require X being put to bed at an appropriately early time so that she is able to have sufficient sleep for the next day at school.
The mother
The mother is 49 years old. She currently works about three days a week within school hours at M Hospital. She has not re-partnered. She currently lives in Suburb N, which is close to the maternal grandmother. The mother was born in Country D and came to Australia in 1990. She is an Australian citizen, but remains closely connected to her culture and her religion. The mother wishes for X to also remained connected to culture. Whilst in the mother’s care X attends Country D language classes on Saturdays and a religious site on Sundays.
The mother gave her evidence partially in English and partially through the interpreter. Even allowing for cultural differences, and the mother’s language issues, her evidence was not compelling. The mother frequently did not answer the question asked, and instead took opportunities to plead her case and criticise the father in lengthy, rambling answers.
The mother’s evidence at times was confusing, convoluted and quite difficult to follow. Her evidence as to why she stopped time between X and the father was explained at various times as being in accordance with X’s wishes, being as result of the child feeling unwell, and being necessary to protect X. Notwithstanding that she did not make X available for time at all after 6 August 2023 in her oral evidence, the mother said that she always made the child available and was “always happy for her to go to the father [sic] care” provided she was protected. The mother oscillated between saying she would make X available to spend time with her father, and saying she would not do so, adding that she would need the father to agree he would not groom X, that she may need to get the police to speak to X first and that X may not want to go.
What was clear was that the mother regards the father as incapable of properly caring for X, and that she is at risk in his care. I have already addressed significantly the mother’s allegations of abuse. Many of her other complaints against the father were quite minor – such as that he feeds X processed foods, or plays with her outside for too long.
The mother was not truthful on occasion. For instance, she deposed in her trial affidavit that her lease in Suburb O had ended. That was not true and her lease was still on foot at the time of the hearing. She also deposed that she and X were living in their own home in Suburb N. At the time she deposed her affidavit that was also not true. Her lease did not commence until late 2023 – the day before she swore her trial affidavit – and she agreed under cross-examination that she and X had in fact been staying at her mother’s house, that she had not moved out of the Suburb O property and into the Suburb N property, but was preparing to do so.
It was apparent the mother holds the view that the parents should adopt ‘traditional’ roles in parenting X. She regarded herself as the mother as being more suited to providing care to X, and that the father’s role should be focused on financially providing for the family. His desire to be a hands-on father appeared to perplex her. To Mr G, she somewhat oddly described the father’s desire to be involved with X as “he wanted to be a woman and would have breast fed [X] if he could”. Mr G observed:
50. It is not clear why [the mother] has decided that [the father’s] wish to be an active and engaged father with his daughter is not just simply different to the way she was raised. It is concerning that she has a negative and sinister view of his motives in wanting to display affection toward his daughter.
I share those concerns.
I agree with the submissions by counsel for the father and for the Independent Children's Lawyer that the mother appears unable to encourage and promote X’s relationship with her father. Indeed, the evidence suggests the mother actively undermines that relationship, that she involves X very much in the dispute and that she has deliberately withheld X from spending time with her father for protracted periods, notwithstanding court orders.
It was the mother’s evidence that the father attended at her home on Sunday mornings in 2023 to collect X in accordance with the November 2022 orders. However, when the mother had determined X would not be attending, she and X would “hide” in X’s bedroom whilst the father knocked on the door and remained there until he left the premises. In her oral evidence, the mother said:
… me and [X] have to hide inside of her bedroom shaking the whole day and, you know, every Sunday, Monday and Tuesday …
The mother denied that X would have seen the mother shaking. In her trial affidavit the mother said that she and X “would stay scared inside” suggesting that X, too, was frightened by her father’s presence. In her oral evidence, the mother said the police attended at the home on many occasions when she called them “to rescue [X] and myself”.
It is difficult to imagine that these events would not have been deeply confusing and upsetting to X. The mother’s lack of insight into the impact on X of being required to hide in her bedroom with her terrified mother when her father was outside to collect her and that on occasion the police were called “to rescue” the mother and daughter, is extremely troubling.
As set out, it was the mother’s evidence that she withheld X on a number of occasions from spending time with her father, asserting that X was unwell. The mother said that X’s stomach aches, nausea and “symptoms of urinary frequency” peaked from March/April 2023 to August 2023. She referred to X having to undergo an ultrasound, having multiple hospital admissions, seeing a general practitioner many times and the ambulance being called regarding X’s stomach and urinary issues. The mother regarded her decision to cease time in August 2023 as justified, saying in her oral evidence that if she had not done so, and had kept sending X for the last three months, X’s health may have deteriorated to the point she required hospitalisation or an operation. There was no medical evidence tendered before me and no medical or allied health professional was on affidavit in to corroborate the mother’s concerns.

The father only admitted having kicked the mother in 2016 when he was taken to the Department’s report in which it is stated that the father:
… appeared open in discussion regarding his perpetration of family violence when he kicked [the mother].
The father then said he did remember it clearly, and that it was “the slightest kick imaginable” when the mother was trying to remove X from his arms. Shortly after he gave that evidence, the father then seemed a bit confused about the incident, suggesting that he only “vaguely” recalled the event, that X was one or two (she was about a week old), and then said he was holding X at the time “if this is in the incident we’re talking about”, which suggested perhaps there had been more than one time he had kicked her. He denied that was the case. The father said the mother tried to grab X and kicked him “and then I just kicked her sideways in reaction”. However he then said he could not recall if she kicked him first, but he remembered he kicked her, but said:
It wasn’t a kick. It was just a sideways tap like that with the side of my foot.
He also described it as “one little kick in 14 years”.
The father admitted that in early 2018 the parties argued over X. The father said he had X in a bed next to his bed, which upset the mother. He said the mother did not like that he was sleeping in the same room as X. He said the mother came in and punched him in the face and
… with my finger, I poked her in the face. I said, “Don’t you ever hit me again”.
He admitted that her nose started bleeding. He said later:
I never hit her. I poked her with my finger on her cheek there, and her nose did bleed, and I was remorseful. I never hit her.
It is difficult to understand how a poke with a finger on the cheek could have caused the mother’s nose to bleed.
In relation to the incident in which he grabbed her wrist, the father said that was because she was threatening to throw his phone across the kitchen. He then went on to say she called the police, and an Intervention Order was taken out against him, and “I was removed from my family home”. He clearly regarded that Intervention Order and his removal from the home as an affront to him.
At one point in his oral evidence the father also acknowledged that he had sworn at the mother, telling her “don’t effing punch me and don’t effing touch me again” after she punched in him the back of the head. He denied having called the mother “poison” in X’s presence. However, he had deposed to having done so in his affidavit. When this inconsistency was pointed out to him, the father said X was not near the front door, and that he only vaguely recalled the incident. He then said he only said it quietly and X would not have heard, but that maybe he had the incident confused.
The wife similarly minimised her abusive behaviours. Under cross-examination she acknowledged that she has told the father that she hates him, and that she has told him she wished he would die. Her explanation for doing so was that she told him she hates him if he had hurt X, and that on occasions connected to her menstrual cycle, she becomes very angry, and cannot control her speech or her patience. Curiously however, the mother denied that she hates the father, and insisted that in fact she loves him.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
Moving to live primarily with her father, and spending time with her mother on alternate weekends would be a significant change for X. She has a strong bond with her mother, and regards her mother as able to look after her and protect her. She is likely to really miss her mother, and experience a sense of loss and sadness. I have concerns that the father is not emotionally equipped to sensitively manage X’s upset or to be able to let X freely express her emotions, which could result in X’s become more upset, or potentially unsettled or withdrawn.
A move into the father’s care would also mean X would change schools. She would be returning to C School. Whilst that would be a change, it would also be a return to a school she has attended throughout her education, save for the last term of this year.
If X remains with her mother, and her time with her father is reduced to supervised, and then short, day visits, this would also be a significant change for X. Her relationship with her father is strong and loving, and she would likely feel a sense of loss and sadness. I also have concerns the mother would not be emotionally able to appropriately reassure X, nor that she could promote and encourage X’s relationship with her father.
It seems to me in light of the mother’s views and actions particularly since May this year that the mother would continue to seek ways to marginalise the father from X’s life. There is, in my view, a high risk that X’s time with her father will continue to be interrupted and undermined if she remains living in her mother’s primary care.
It is, accordingly, plain that there are clear disadvantages to X on the proposals of each of her parents.
Practical difficulty of implementation: s 60CC(3)(e);
The mother lives in Suburb N having moved there from Suburb O over the last few months. The father lives in Suburb Q. The parents’ homes are not significantly geographically distant. However, Melbourne traffic and congestion can make the trip between the households prolonged.
If X were to reside primarily with the mother, it would make practical sense she would remain at B School. Time with the father could still occur on some weekdays. Whilst the commute between Suburb Q and Suburb N might take more than 40 minutes if the traffic is bad, it is not such an arduous journey that it could be described as a practical difficulty.
Similarly if X were to reside primarily with the father, it would make practical sense she would return to C School. Again, it would not be impracticable for the mother to deliver X to C School some weekdays.
Avoiding further proceedings: s 60CC(3)(l); and
It may well be that any orders I make will not avoid further proceedings.
If I make the orders the mother proposes, it seems highly likely either that the father will continue to agitate for increased time – given his strong view that he should at least have equal time with X.
Alternatively, if X remains in her mother’s primary care, the mother may refuse to comply with orders. Contravention applications may be made, or a further application to change residence could be brought.
If I make the orders the father proposes, the mother says she will appeal. She said:
I will comply but I will keep searching for appeal again until the government hear my voice and until [X] be safe under my care. Because I never give up until I die.
and that X does not have a bright future “if she finds out … what her father did to her.”
This is regrettable, as X desperately needs her parents to stop this conflict.
Other relevant matters: s 60CC(3)(m).
In his closing, counsel for the mother said the mother has been the child’s primary carer, and that position should be preserved. That included implementing time arrangements between X and her father that the mother was able to manage and support – which would need to be limited, daytime visits only.
I anticipate orders changing X’s residence will be difficult for the mother to manage emotionally. She told the Court she would “rather die” than see orders to that effect. She also said if she was unable to protect X she would walk out of her life and never see X again until she is an adult. She said:
I can’t see her ruin her life and going down and down. I will go […] and become a nun and then I will wait for her. When she grow up she will find me.
At trial, there was no real exploration of these comments, or indeed of the impact on the mother of orders changing residence. However, it seems that the mother will need considerable supports to assist her to adjust to the orders I am making.
ORDERS TO BE MADE
Live with/spend time with
In my view X will benefit from maintaining a relationship with both of her parents. Being able to do so is fundamentally important to X’s sense of self, and her understanding of her identity. Both her parents are extremely important people in X’s life and she loves them deeply. Aside from the conflict, both parents have much to offer X, who clearly delights in their attention and love.
Having carefully listened to and considered the evidence, I do not share the mother’s concerns that the father has abused, or may abuse X, or allow her to be abused by anyone else. As already set out, I do not accept the father poses an unacceptable risk to X. Nor, in the absence of medical evidence, do I regard his interactions with X or parenting of her as causing her pain and suffering, or contributing to her medical conditions.
However, the mother’s fixed belief that the father poses a risk to the child – and the mother’s overholding of the child in response to that belief on the basis that she believes she is acting protectively – gives me considerable concern that if X remains living primarily with the mother the mother will be unable to encourage X to maintain a relationship with her father. Rather, it seems highly likely the mother will continue to undermine that relationship, and encourage X to regard her father as unfit, unsafe, and unable to provide appropriate care for her.
I also am very concerned that if the mother continues to have primary care for X, she is likely to become exposed to her mother’s beliefs. X may come to believe that her father is unsafe, and that he has subjected her to abuse, or seeks to do so, and that he is causing her to become unwell. I note Ms J expressed that if the allegations continued, X may form a sense of unease and a belief that she is not safe or able to trust her caregivers. I share that concern. Ms J noted that there was already a dynamic emerging – according to the mother – whereby X was becoming resistant and refusing time with the father. Ms J expressed concern that if X remains in the mother’s primary care, she may ultimately reject her father.
Moreover, I note the mother’s evidence that when she was not spending time with her father this year ostensibly because she was unwell, the mother said:
[X] would say, “Mum, you know Daddy can’t take care of you. Why you force me to go like other people?” And I say, “But I have to, because I have to listen to the – the law and Mum can’t risk the law” – and she doesn’t understand and she say, “But, Mum, if you do like that I will get more sick and get serious sick from Daddy care and I’m not going. [sic]”
(Emphasis added)
That suggests X is already forming a view that her father is unable to prevent her from becoming well, and that indeed, she will potentially fall seriously ill in her father’s care.
My concerns are not wholly negated by X’s time with her mother being reduced to alternate weekends. However, less time in the mother’s household will mean X has less time being exposed to her mother’s beliefs and views. Additionally, if X is living primarily with her father, she will increasingly have her own experiences with him which may counteract the mother’s narrative.
Fortunately, and notwithstanding the months ter mother refused to let X spend time with her father, X’s relationship with her father has not become irreparably damaged at this time. That does suggest the mother has to some extent been able to shield X from her negative views of the father. Moreover, it would be extremely upsetting and destabilising for X if she had even less time with her mother. The mother/daughter relationship is obviously extremely important to X.
It will be plain from my reasons that I have concerns about the father’s ability to act in a child focussed manner. I note the mother’s evidence that the father had been “manipulating [X] to reject me”, and saying derogatory things about the mother to the child. This issue was not explored at trial. The father will need to take great care to ensure that he does not belittle or denigrate the mother to X or in her hearing. It would cause X significant distress and discomfort, and ultimately impact on her sense of identity and feelings of safety and security.
My general impression, however, was that the father would be able to support X’s relationship with her mother. Despite the significant allegations that have been made against the father, he has maintained that substantial and significant time should occur between X and her mother.
In all the circumstances I am satisfied that X’s best interests will be met by living primarily with her father and spending time with her mother on alternate weekends, alternate Mondays, during school holidays and on special occasions. In my view, these orders strike the appropriate balance – enabling X to have the benefit of both of her parents being involved in her life, and ensuring she remains connected to her Country D heritage and identity. The level of conflict between the parties – and lack of co-parenting capacity – currently means that X’s needs will be better met by having a consistent, stable home base, rather than sharing her time more equally between her parents.
However, my orders will only work as well as the parents are able to make them. What really needs to change, for X, is the conflict between her parents. If the parties do not take serious and significant steps to change their own behaviours, as X matures, she will likely find it increasingly difficult to move between her parents’ homes.
The orders I am making for X to spend time with the mother after the long summer holidays will ensure that X will continue to enjoy substantial and significant time with her mother. My orders will also minimise the number of changeovers the parties will need to effect between themselves.
I am limiting the mother’s time during first term in 2024 to conclude on Sunday evenings and on Monday evenings in the alternate weeks (save for Mother’s Day weekend, when X shall spend the Sunday night with the mother, so that an additional changeover is avoided). Although this means the parents will need to come into contact with each other on those evenings, I am more concerned that X’s schooling could be interrupted, if for instance, the mother experiences difficulties in getting X up in time to attend school. That has been a significant issue for the mother this year.
Once X is well settled back into C School and into the father’s primary care, that time can be regularly extended to the following mornings. It is of course extremely important that X attend school every day, on time, and that neither parent interferes with her attendance at school. The mother will need to confirm that she can get X to school on time.
It is imperative that the mother ensure she complies with these orders. If she continues to withhold X from her father, or interrupt her education, it may become necessary for more restrictive time spent orders to be implemented.
The mother has also said the father has spoken negatively about her to the school teachers and principal. Again, the father will need to take great care to ensure that he does not involve other parties in the conflict, and that X’s school and wider community remain welcoming to the mother. If the mother feels uncomfortable at X’s school, or if X becomes aware that her mother is not welcome or feels uncomfortable at the school, this will also likely cause X upset and confusion.
Both parents should also remind themselves that X may misreport to them as to her experiences in the household of the other parent in an effort to please that parent. Rather than accepting without question any negative reports X may make about the other parent, each of them should think carefully about the messaging they are giving X, and whether their actions, words and attitudes may be influencing X to make statements about her other parent.
Similarly, I note the mother deposed that she is concerned the father and X “have secrets”, as X refuses to talk to the mother about her time with the father. The mother imports a sinister interpretation to X’s reluctance to discuss her time with her father. However, this is regrettably an issue that arises for many children of separated parents where that separation is conflictual – where children feel disloyal and uncomfortable expressing any positive experiences in the home of the other parent. Both parents should strive to see the conflict between them from X’s perspective, and how it impacts on her, rather than interpreting X’s behaviour as being a result of some deficiency in the other parent.
Special occasions
There was no evidence adduced as to special occasions. However, it seems to me that the proposals put forward by the Independent Children's Lawyer and supported by the father are reasonable, practicable and will ensure X has the opportunity to celebrate important events and milestones with each of her parents.
The mother did not adduce much evidence as to additional festivals she celebrates. She does refer to celebrating New Year’s Eve at a Country D religious site in early 2023, which appears to have been the Lunar New Year celebrations. Whilst the Independent Children's Lawyer did not include that event in their proposals it seems to me that it is an important cultural event which X should enjoy with her mother.
Allocation of parental responsibility
It was agreed between the parties that the parent with whom X primarily lives should have sole parental responsibility for medical and educational matters. It is common ground that the parents have no ability to communicate effectively or to negotiate and liaise respectfully with each other and come to a joint agreement about X’s long-term needs.
In my view, that is appropriate. Decisions need to be made in a timely manner for X.
I have concerns that the mother’s attitude towards X’s health could be problematic. As set out, the mother attributes X’s stomach aches, abdominal pains, urinary tract infections and other ailments as arising from the father’s neglectful or abusive parenting. The mother has apparently taken X repeatedly to seek medical attention for these matters. Whilst no medical evidence was tendered to corroborate the mother’s concerns, I note she deposes that her general practitioner has recommended X attend upon a psychologist. That suggests to me that the doctor has some concerns that X’s symptoms may have a psychological rather than a physical explanation. Given the hostility and conflict between her parents, that may not be surprising.
The mother’s evidence was that X has required multiple hospital attendances, multiple attendances upon a general practitioner, attendances upon a paediatrician, that the mother has had to call an ambulance for X and that X needed to undergo investigative procedures. None of the mother’s concerns were supported by evidence from any medical professional. Notwithstanding X being subjected to what appears to be reasonably extensive medical attention in the mother’s care, at its highest the mother said X suffered from constipation and urinary tract infections.
In light of the mother’s beliefs, there is a risk that if she had sole parental responsibility for X’s medical issues, X may be exposed to a narrative that her father has made her – and will continue to make her – unwell.
It is also concerning that the mother was prepared to act unilaterally in changing X’s school, and that in the mother’s care X has apparently not attended school on a number of occasions. The mother also said she did not make X go to school when she did not want to do so. These matters give me some concern as to the mother’s ability to make child focussed decisions for X’s long term educational needs.
Country D language school
I am making an order that both parents ensure X attends at the Country D language school, unless they both agree otherwise. I am making that order as I do have some concerns that the father’s attitude towards X's Country D heritage and culture was problematic. However, I also note that the father said he would take X to the classes on the weekends she is in his care. It is clearly important that she be able to maintain a strong connection with her Country D language and culture.
Courses/treatment

It was proposed by the Independent Children's Lawyer that the father attend a Tuning into Kids course and a Men’s Behaviour Change Program.
There are limits to the court’s power to make such orders. If the order is not tethered to a parenting order, the only source of power for me to make such an order must be s67ZC of the Act, being orders relating to the welfare of children. The Full Court in in Oberlin & Infeld (2021) 63 Fam LR 88 expressed a view that ordinarily an order directing a party to accept therapeutic treatment would not be made under s67ZC.
In this matter it appears clearly to be in X’s best interests that her father better educate himself on parenting matters, and that he address his behaviours by attending a Men’s Behaviour Change Program. As is apparent, the father’s level of insight and ability to see things from X’s point of view is quite impoverished. His minimisation of family violence was also quite troubling.
I note Ms J also said she had some concern about the father’s self-focus and difficulty in viewing the dispute between the parents from X’s point of view. She said the father may need some assistance to develop insight into what is going on for X.
In relation to the mother, I have significant concerns about the impact on the mother of the orders that I am making. Those concerns arise out of the mother’s statements that she would rather die than see residence changed or that she would walk out of X’s life until she is an adult.
I am satisfied that X’s best interest will also be met by her mother obtaining psychological support to assist her in managing the impact on her of the orders I am making. Without that support I have real concerns that she will struggle to properly parent X, that she may behave in a distressed manner when spending time with X, or that she may even absent herself from X’s life. These outcomes would very much be to X’s disadvantage.
For these reasons I am making the orders for treatment and courses. These interventions will be tethered to the parenting orders I am making, as I regard the parents compliance with those supports as essential.
It would be ideal for X to attend upon a therapist so that she has a space in which she can express her feelings without concern as to the impact those feelings will have on her parents. I have concerns about the narrative X will be told by both of her parents as to the reasons she is moving to live primarily with her father.
I note X has already commenced upon a psychologist or counsellor, and during the trial the father advised he was agreeable to X continuing with that therapy.
I am not, however, going to order that therapy occur. It would be to X’s advantage if it did take place, but I will leave it to the father to determine and to arrange, depending on the commitments he has in his home. If he does take X to a therapist, it will be of assistance to the treater to have a copy of these reasons.
Very helpfully the Independent Children's Lawyer has said he will meet with X and explain the orders to her. The Court is grateful for that, as it will be plain from these reasons that I have considerable concern about how each of X’s parents will frame my decision and the reasons for it to her.

I certify that the preceding three hundred (300) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 19 December 2023

File number:	MLC 5780 of 2020
Judgment of:	CARTER J
Date of judgment:	19 December 2023
Catchwords:	FAMILY LAW – PARENTING – Where the mother asserts the father poses an unacceptable risk to the child – Allegations of family violence and child sexual abuse perpetrated by the father – Orders made for father to have sole parental responsibility for medical and educational issues for the child – Orders made for change of residence.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited:	Bielen & Kozma (2022) 66 Fam LR 59 Fitzwater & Fitzwater(2019) 60 Fam LR 212 Isles & Nelissen (2022) 65 Fam LR 288 M v M (1988) 166 CLR 69
Division:	Division 1 First Instance
Number of paragraphs:	300
Date of hearing:	22 – 24 November 2023, 5 December 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Howe
Solicitor for the Applicant:	RRR Lawyers
Counsel for the Respondent:	Mr Chislett
Solicitor for the Respondent:	MMH Lawyers
Counsel for the Independent Children's Lawyer:	Mr Allen
Solicitor for the Independent Children's Lawyer:	Peter Lynch Lawyer

MLC 5780 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR URBONAS Applicant
AND:	MS ALVEY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	19 DECEMBER 2023