Alphen & Alphen [2025] FedCFamC1F 272 | Case summary

Alphen & Alphen [2025] FedCFamC1F 272 | Case summary | Zoe

[13]

Each party is at liberty to obtain from the child's school all information relating to the child including, but not limited to, school reports, photos and newsletters and this Order is hereby an authority for the child's school to release such information to each of the parties upon request by either of them.
Each party is at liberty to attend the child's school events including but not limited to concerts, assemblies, parent teacher interviews and excursions engaged in by the child PROVIDED THAT the parties use their best endeavours to not come into contact with each other.
Each party shall advise the other and keep the other advised as to their current telephone contact number and residential address, and advise the other party within twenty-four (24) hours of any change to the telephone contact number or residential address.
Each party shall forthwith inform the other of any serious illness or injuries sustained by the child whilst in their care.
Each party shall provide the other with particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.
Each party shall provide the other with any prescription or prescribed medication for the child and the other parent shall administer those medications during periods when the child is living with them.
The parties shall communicate with each other in relation to the child's care, welfare and development by way of "Divvito" parenting application and/or email unless in the event of an emergency in which case telephone communication shall occur.
Each party shall allow the child to reasonably communicate with the other party when they are in their respective care and they shall each facilitate the same without the other party participating in the conversation or call.
Upon the child turning thirteen (13) years of age, the parties shall be at liberty to travel internationally for a period of up to twenty-one (21) days with the child but only after first having provided to the other, no less than twenty-eight (28) days prior to the first day of travel, the following:

[21]

Mr Alphen ("the applicant") and Ms Alphen ("the respondent") are unable to reach agreement in respect of parenting matters for their daughter, X born 2016 ("the child"). The child is now nine years of age.
The parties commenced cohabitation in early 2000 and were married in mid-2003. The child of these proceedings has two adult siblings, namely Ms B born 2001 and Mr C born 2005.
Ms B recently resided with the respondent but now lives independently and has a limited relationship with the applicant spending time with him at her discretion. Mr C resides with the applicant and has a social relationship with the respondent.
The breakdown of the relationship between the parties and their separation on 21 January 2021 was acrimonious and redolent with high conflict, resulting in the two adult children being drawn into the conflict and becoming strongly supportive of their preferred parent.
There is broad agreement between the parties that the child gains significant benefit from continuing and maintaining a relationship with her adult siblings.
The applicant commenced proceedings on 30 September 2022. His initial position was that the parties should have equal shared parental responsibility for the child with decision-making as to all major long-term issues to be the subject of consultation and by necessary implication, agreement.
The applicant sought that the child remain in the primary care of the respondent and that the child should live with the applicant as may be agreed, but in default of agreement, each alternate week from the conclusion of school on Wednesday (or 3.15 pm if a non-school day) to the commencement of school on Monday (or 3.15 pm if a non-school day) (being five nights per fortnight) and one half of all school term holidays.
The initial Response to Final Orders filed by the respondent on 1 November 2022 sought sole parental responsibility with the child to live with her and spend time with the applicant as may be determined.
The competing interlocutory applications were heard and determined by a Senior Judicial Registrar on 15 December 2022. The parties were able to agree that the child would live with the respondent, to utilise a parenting application to enable communication between them in relation to the child, and with the remaining focus on the extent of time that the child would spend with the applicant.
The Senior Judicial Registrar determined that there should be a gradual increase in the time spent by the child with the applicant such that as from the conclusion of Term 1, 2023, the child would spend time with the applicant from Wednesday after school (or 9.00 am on a non-school day) until the commencement of school Monday (or 9.00 am on a non-school day) and each alternate weekend thereafter.
The following further orders are relevant to the current litigation:

[26]

The plan proposed by the paediatrician to assist the child in her anxiety and trauma-related behaviour was to recommend the continuation of therapy with Ms G, psychologist ("Ms G"), for the parties to gain a better understanding of the child's behaviours and also to ensure that the child feels safe and supported when in the care of each of them.
As a clear indication of the extent of the conflict between the parties and their inability to heed the advice of the paediatrician as to the effect of the litigation on the child, by the Third Amended Initiating Application filed 7 February 2025, the applicant sought that he have sole decision-making responsibility for the child and that there be a reversal of the primary care arrangements such that the child live with him. After a moratorium period of eight weeks, during which the child would have no contact or communication with the respondent, there would be a graduated reintroduction of time spending with the respondent such that after an extended period, the child would spend time with the respondent each alternate weekend from the conclusion of school on Friday (or 4.00 pm if a non-school day) to the commencement of school on Monday (or 9.00 am if a non-school day) and for school holiday time.
The respondent filed a Second Amended Response to Initiating Application on 7 March 2025, the gravamen of which was to seek sole decision-making responsibility for the child and for the applicant's time to be reduced from five nights per fortnight to three nights per fortnight, being each alternate weekend from Friday at the conclusion of school (or 3.15 pm if a non-school day) until the commencement of school on Monday.
At trial, the applicant abandoned his orders sought as to a moratorium of time between the child and the respondent. The parties were, however, able to reach agreement as to the concept of overseas travel but not the detail of such. Given that the applicant has provided the child with an iPad device, the child is now able to independently contact each of the parties.

[34]

The parties commenced cohabitation in Region N in the United Kingdom. The applicant's connection with the United Kingdom is relevant to the orders that he seeks that, subject to certain terms and conditions, each of the parties be permitted to travel with the child overseas to a country of the Hague Convention on the Civil Aspects of International Child Abduction. In particular, the applicant seeks to travel with the child to Region N in the United Kingdom where he has extended family. Whilst the orders sought by the applicant do not refer to the respondent, a concession was made at trial that the drafting of the order for overseas travel was an oversight and should have included and applied equally to the respondent. A further aspect of the applicant's orders sought for overseas travel is that he be permitted to travel with the child on at least one extended occasion in each calendar year with the likely intention of the applicant to travel overseas with the child on multiple occasions.
The extent of the applicant's predilection for overseas travel with Mr C is highlighted in the evidence.
The issue of travel generally has been a source of conflict between the parties in circumstances where the respondent complains that the applicant provides no notice of an intention to travel with the child nationally. To some degree, the applicant conceded that his travel arrangements may have been a separate and independent source of conflict given his evidence that thought it would be less problematic for the respondent and, therefore, less traumatic for the child if limited or no notice of intention to travel was given to the respondent.
The respondent sets out an extended history of alleged aggressive conduct by the applicant consistent with family violence.
The respondent's trial affidavit alleges that the applicant demonstrated poor anger management from as early as 2003 resulting in the police having to be called.
The respondent also contends that the applicant was aggressive and coercively controlling, and that his conduct was exacerbated by excess consumption of alcohol. The complaint by the respondent is not limited to conduct directed to her but also includes an allegation of verbal abuse and physical assault on the paternal grandfather. Significant evidence was taken up with the respondent detailing the circumstances of a physical altercation with the paternal grandfather on 30 June 2020, an incident that the applicant trenchantly denies took place.
The applicant concedes that by December 2020, the deterioration in the parties' relationship had engendered hostility by Ms B towards him. For his part, the underlying explanation for the breakdown of the relationship and the applicant's aggressive conduct is his belief that the respondent entered into a sexual relationship with her now current partner Mr K ("Mr K"). The hostility between the parties was further inflamed by the applicant inspecting the respondent's phone and an argument with the applicant who then moved out of the former matrimonial home to live with the maternal grandparents. Soon thereafter, the applicant drove to Mr K's home with the intention of confronting him to elicit confirmation of the affair.
Regrettably, the animosity between Mr K and the applicant continued for some time and they continued to confront each other until mid-2022. The concern is not necessarily the respondent's assertion that the applicant's conduct towards Mr K is consistent with him being a perpetrator of family violence, but rather that, on occasion, X and Mr C were witness to the aggressive interactions between the parties and Mr K, and that this is likely to be a relevant stressor capable of triggering an anxiety response.
As discussed, the applicant commenced spending time with the child each Wednesday from 6.00 pm to 7.00 pm and each alternate weekend from the conclusion of school Friday until the commencement of school Monday. The applicant's time increased to five nights per fortnight leading up to the interim orders made by a Senior Judicial Registrar on 15 December 2022.
The evidence of each of the parties is replete with allegation and counter allegation of aggressive and controlling behaviour on the part of the applicant, and increasing resistance on the part of the respondent to support the child's time with her father.
Whilst at first blush the incident might appear as insignificant, the applicant concedes that the respondent purchased a mug for the child to gift to him for Father's Day in September 2021. Whilst the applicant does not concede that he told the child he did not want a present from "that crazy bitch", he does concede that he refused to accept the mug and caused the child to return it to the respondent.
The applicant alleges that on 31 August 2022, the respondent did not take the child to school knowing that it was the first day of the applicant's five-night block as part of orders that had been in place for sixteen months. The respondent concedes that there were times when she did not make the child available to the applicant, but it is her contention that she made the applicant aware that the child was not coping with the current arrangements, that she was experiencing a high level of separation anxiety and that it was her preferred position that the child spend three nights a fortnight with the applicant rather than five.
The determination of whether the child was and is able to spend extended time with the applicant is at the heart of the proceedings.
In summary, whilst the applicant initially sought five nights per fortnight, the respondent argued that it was too long for the child to be separated from her, was a source of the child's deteriorating behaviour and high levels of anxiety, and an explanation for the child's occasional opposition to easily transition into the applicant's care. Five nights per fortnight was considered to be too long, with the respondent being of the view that three nights per fortnight was the limit of time away from her that the child was able to cope with.
The Third Amended Initiating Application filed by the applicant sought orders that the child live in his primary care. The applicant did not seek an alternate position that had been reflected in the earlier iteration of the Initiating Application as follows:
1. That the child shall live with the mother at all times save as specifically provided hereunder.
2. That the child shall live with the father at such times as are agreed or in default of agreement each alternate week from the conclusion of school on Wednesday (or 3.15pm if a non-school day) to the commencement of school on Monday (or 3.15pm if a non-school day) or in the event Monday falls on a public holiday, then until the commencement of school Tuesday.
During the cross-examination of the expert witness, the applicant's counsel for the first time asked questions that indicated the applicant may have an alternate position namely that if he was not successful in seeking primary care of the child then he wanted to retain the current interim arrangements of five nights per fortnight.
Counsel did not make a formal application for leave to amend orders sought by him as to an alternate position.
There is no suggestion that the respondent had been put on notice of any proposed amendment, nor could it be said that the alternate proposal was made with any degree of formality. It was presented as either an afterthought consequent upon a realisation that there had been a significant omission in the drafting of orders sought by the applicant or there was an assumption that the interim orders would of necessity be considered as an alternate position.
The Court has power to give leave to amend pursuant to r 2.50 on terms as set out in r 2.52(2) of the Rules, and can further dispense with full compliance of the Rules "in the interests of justice" pursuant to r 1.31. Pursuant to s 43 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Court has an obligation where consistent with the proper administration of justice to bring matter to finality.
The intention of the Rules and orders made by way of case management is to ensure that, consistent with the principles of natural justice, parties have appropriate notice of the case they are to meet.
Leave is required for an amendment to an Initiating Application if the amendment is sought after a procedural hearing at which the proceedings have been allocated a date for trial.
In Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175, the High Court considered the circumstances arising from a litigant's decision to significantly amend the statement of claim to add a substantial new claim during the course of the trial.
The High Court declared that parties do not have an absolute, untrammelled "right" to amend pleadings at any stage of litigation, subject to costs. Rather, at least regarding amendments which are not "necessary" to determine the "real issues" in the proceedings, correct defects in pleadings or avoid multiple proceedings, leave to amend is dependent upon the discretion of the trial judge who must take all relevant matters into account, including, crucially, "the concerns of case management". In some cases, these "concerns" may require that a party be "shut out" from raising an arguable case. This approach overturned the High Court's earlier decision in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which held that case management considerations could only "perhaps" have this effect in "extreme" circumstances.
Questions as to whether to grant or refuse an application to amend, or to amend particulars thereof, would result in an injustice requires a consideration of the following:

[36]

Proceedings in this Court do not involve pleadings. Moreover, the best interests of the child and the interests of justice require that all outstanding issues be resolved.
Whilst there may be a difficulty for the applicant in that his trial material and the evidence upon which he seeks to rely may not have been prepared in contemplation of the alternate position now sought, it is likely by the silence of counsel for the respondent that either there was an assumption that the current interim arrangements represented the applicant's default position or that there is a concession that no prejudice is caused.
In the absence of opposition and noting that the extent of time the child was to spend with the applicant was a central focus of the respondent and had been considered by Ms O, Family Assessment Report writer and psychologist at Q Psychologists ("Ms O"), leave is given for the applicant to seek the alternate orders.
The respondent obtained a mental health care plan for the child in October 2022 with the focus being to assist in the management of the child's anxiety. The respondent concedes that she did not give the applicant prior notice of either the mental health care plan or the intention for the child to attend upon Ms E, Psychologist.
The deteriorating relationship between the parties resulted in the respondent filing an Application in a Proceeding on 9 May 2023 seeking that the Orders of 15 December 2022 be discharged and the child spend three nights per fortnight with the applicant as opposed to the then current period of five nights per fortnight.
Each of the parties place their own gloss on the parenting arrangements in 2023 and 2024. It is uncontroversial that their parenting difficulties increased exponentially, as is readily apparent from a consideration of the correspondence passing between the parties' solicitors as appears in the trial affidavits. It is an unfortunate observation that, at times, the correspondence between the parties' solicitors is intemperate and did nothing to de-escalate the obvious hostility.
The respondent asserts that the child suffers from panic and anxiety attacks, has wet her pants whilst out shopping with the applicant and his partner, reported that she did not wish to go to school, suffered from chest pains and was fearful of the applicant.
For his part, the applicant does not accept that the child presents with anxiety that would manifest itself in a panic attack. It is his contention that when in his care, the child does not display any overt behaviour that would be consistent with anxiety or panic.
In September 2024, the applicant took the child on a surprise trip to Sydney. In January 2025, the applicant took the child on a surprise trip to Region P informing the respondent the night prior to departure. A further surprise trip was taken later in January 2025.
A surprising feature of the parenting arrangements is the concession by the applicant that since the Orders of 15 December 2022, the child has spent time with him without interruption.
A further aspect is that despite the focus of the conflict being the purported propensity of the applicant to take the child interstate without notice to the respondent, neither of the parties seek any orders that would regulate the arrangements in terms of interstate travel.

[37]

Whilst the applicant was prepared to concede that the respondent was a good parent, it is his contention that increasingly since separation, the respondent has wrongly alleged that the applicant perpetrated family violence and that, as a result, the child is afraid of him. There is some uncertainty on the applicant's case as to whether he accepts that the child genuinely presents overwhelming anxiety either generally or in respect of spending time with him.
The applicant considers that the respondent's actions in either asserting the level and extent of the child's anxiety is genuine or the respondent's conduct in subjecting the child to unnecessary therapeutic intervention, are not child focussed but rather intended to undermine the child's relationship with the applicant.
The applicant goes further and argues that if the primary care remains with the respondent, her conduct and behaviour will likely escalate to the end result where irreparable damage will be inflicted on the applicant's relationship with the child.
The applicant considers that he is able to properly parent the child, and manage any anxiety that the child presents both as to her current presentation but also the likely upset that will result from a change in primary care. Furthermore, the applicant asks the Court to accept that he understands the importance of the child's relationship with the respondent and would ensure the continuation of a meaningful relationship with the respondent.
Again, it is a relevant observation that the applicant no longer pursues recently sought orders that upon the child transitioning to his primary care, there be an eight-week moratorium to the child communicating or spending time with the respondent.
The respondent highlights that the parties had a clear delineation of parenting roles during the course of their marriage. It is likely that the applicant would concede that the respondent provided the primary care for all three children, and certainly as to continuing primary care for the child of these proceedings.
The applicant acknowledges that his primary role was to provide a financial foundation for the family, although the parties are not agreed as to the extent of the applicant's role in the more broad suite of activities with the children, in particular after work hours, on weekends and in relation to extra-curricular activities.
The parties acknowledge that they have limited capacity to communicate and whilst communication could occur by text messaging or email, their ability to co-parent is effectively non-existent.
If the parties come into physical proximity of each other, it is likely to be an acrimonious exchange and only exacerbate the child's anxiety were she to be present.
Communication between the parties is, therefore, difficult.
The respondent alleges that she has been the victim of family violence and as considered, asserts that the applicant was abusive and engaged in conduct consistent with coercive control. The complaint of the respondent extends to an assertion that the applicant engaged in the excess consumption of alcohol which then fuelled his aggressive and, at times, violent conduct.
The respondent opines that the child's exposure to the applicant's anger and inability to regulate and control his emotions may well play a part, perhaps significantly so, in explaining the child's reluctance to remain with the applicant for extended periods.
As further corroboration for the respondent's contention that the applicant engaged in family violence is her evidence, admitted by the applicant in his affidavit filed 7 February 2024, of his attempts to keep the respondent under surveillance. On one occasion, the applicant placed a listening device in the respondent's motor vehicle with the intention of finding evidence that would establish the respondent was in a relationship with Mr K.
The applicant highlights that if the allegations of family violence were true it would be a basis for the child spending limited time with the applicant (and possibly under supervision) rather than the respondent's more problematic contention that the risk to the child of family violence perpetrated by the applicant can be ameliorated by reducing the current interim arrangements from five nights per fortnight to three nights per fortnight (noting the retention of extended periods during school holidays).
In summary, the orders sought by the respondent are inconsistent with the more florid aspects of her case.
The evidence requires a consideration of whether the child displays anxiety and distress and if so, to what extent. As is often considered, the focus of the Court is to consider the advantages and disadvantages to the child of the parties' separate proposals.
Broadly speaking, the focus is to consider, on the applicant's case, the advantage of the child transitioning to his primary care and spending three nights per fortnight and half school holidays with the respondent, as opposed to the extent of the disadvantage to the child of an exacerbation of her underlying anxiety if such an order was made.
The issues for determination, therefore, are as follows:

[41]

It is agreed between the parties that Mr C currently resides with the applicant and has done so for some time. Moreover, Mr C now works with the applicant in his business. Mr C is recorded as having a close relationship with each of the parties.
It is acknowledged that the applicant denies that he perpetrated family violence comprising overt aggression including threats to kill.
It should be unnecessary to observe that if there was a real and genuine fear that the applicant might kill or seriously harm any of the children and/or the respondent, the orders sought by her would be totally inappropriate.
The applicant alleges that in 2020, the parties were hosting Ms B's 18th birthday during which time the applicant consumed alcohol to excess and was observed to give Mr C and his cousin shots of Tequila.
The applicant denied that he then forcibly shoved the respondent out of the way when she confronted him and denied that he then grabbed the paternal grandfather with both hands threatening and swearing at him. The respondent, when relating the incident, presented as emotionally affected given that her father was frail and terminally ill. Whatever took place, even if not as asserted by the respondent, was clearly emotionally charged and distressing.
The applicant denied physical interaction with the respondent but his further denial that he was intoxicated was not credible. I accept that on the occasion of Ms B's birthday, the applicant consumed alcohol to excess which had a deleterious impact on his behaviour. I am not able to find as to the accuracy of the matters set out by the respondent but at least on this particular occasion, the evidence supports a finding that the applicant consumed alcohol to excess with a consequential outcome that he reacted aggressively.
The respondent contends that the applicant had limited involvement with the children's early childhood. She accepted the role of primary carer for the children and whilst there is argument as to the extent of the applicant's involvement, his concession that the respondent was a good mother and that but for his altered view of her post-separation conduct towards him, he would not have challenged the applicant retaining primary care of the child.
The applicant devoted much of his affidavit evidence to the circumstances of the parties' separation but in particular, his belief that the respondent had entered into a sexual relationship with Mr K.
The evidence of the applicant, the respondent and Mr K cannot be reconciled as to the precise circumstances of their engagement, and in particular the instances of the interactions between the applicant and Mr K.[3] However, I am satisfied that the applicant was determined to confront Mr K as to his belief that he and the respondent were engaging in a sexual relationship and, thereafter, did not shy away from using every opportunity to confront Mr K.
The relevance of at least some of the occasions that the applicant confronted Mr K is not necessarily that it demonstrated poor anger management control by the applicant, but rather the interactions in October 2021, February 2022, another date in February 2022 and May 2022 took place in the presence of Mr C and the child. The relevance of the evidence is as to the applicant's lack of insight as to the desirability of the child and Mr C being subjected to aggressive and angry behaviour by the applicant.
On 4 November 2024, the respondent confirmed that the child was scheduled to have a medical appointment with AA Psychologists in November 2024.
There was some issue between the parties as to whether the respondent had attempted to dissuade the applicant from attending the said appointment, however, he considered that the Orders of 31 January 2024 permitted the parties to attend all appointments made concerning an autism assessment of the child and as such, the applicant gave notice to the respondent via his solicitor of his intention to be present during the anticipated assessment.
The applicant concedes at paragraph 358 of his trial affidavit that the appointment did not proceed without difficulty or incident. The applicant acknowledges that he was told the child would not get out of the car given his presence.
The concern of the applicant was heightened. He observed that Mr K had accompanied the respondent and the child.
After some considerable effort, the child was able to be assessed with some interaction between the parties, the child and the doctor.
In his trial affidavit, the applicant summarised his view of what took place at the assessment in November 2024 as follows:
1. I was upset that the mother told me via the communication app that I was not permitted to attend [X's] appointment, but that she had thought fit to bring [Mr K] to the appointment. I was hesitant to attend the appointment that day because I was concerned that the mother would cause a scene, which is what occurred. I tried to follow the direction of the doctor and ensure that I was not contributing to any confrontation so that it did not affect [X]. Despite my feelings that day regarding the mother and [Mr K's] behaviour, I did not let my feelings be known to [X] and acted normally in front of her. The mother however presented as hostile and I am concerned that her attitude towards me in front of [X] was extremely negative.
Whilst the respondent and Mr K have a different version of the events in terms of who was the aggressor, I do not accept the applicant's evidence that the child was unaffected by the conduct of each of the parties.
As has been considered, the best interests of the child must be the paramount consideration. In this case, it is the ability of the parties to conduct themselves in a manner that is least likely to upset and cause distress to the child and heighten her anxiety.
The applicant was unconvincing in his assertion that he has developed a sufficient understanding of the importance to this child of ensuring that she is not exposed to angry outbursts, high conflict between the parties and aggressive interaction.
I do accept that since 2022 the applicant appears to have compartmentalised his dislike for Mr K and is no longer looking for any opportunity to confront him.
The applicant accepts that his behaviour leading up to the parties' separation, and for some time thereafter, was not acceptable. It is his contention that it does not reflect his usual behaviour, he does not condone his conduct, and on reflection regrets his behaviour.
The issue, therefore, is whether each of the parties has gained sufficient insight such that the child's underlying fragility is not likely to be exacerbated by continuing conflict.
The concerns in respect of the child's emotional presentation and lability is best exemplified by information relayed from Ms R, of the child's school ("Ms R"), in late 2024 that a teacher had "observed suspicious marks on [the child's] arms, and upon questioning [the child] about those marks, she stated they were "mozzie bites"."[4]
Ms R reported a subsequent conversation with the child to the effect of:

[47]

The respondent relies upon her trial affidavit filed 7 March 2025.
Not dissimilar to the focus of the applicant, the respondent's evidence was keen to emphasise the history of conflict between the parties.
In mid-2021, the respondent says that there was an agreement that the applicant return the child to her on Sunday afternoon at about 1.30 pm.
The respondent asserts that she received information from the maternal grandmother that the applicant may have taken the child to his Town T house.
The respondent and a friend then drove to Town T where she entered the applicant's property and effectively removed the child from the applicant's care. The respondent's observation of the child was that she was upset, distressed and anxious.
It was put to the respondent that there had been an agreement between the parties that the child would remain with the applicant until Monday morning. The respondent denied that there had been an agreement to that effect.
The uncertainty between the parties as to whether the applicant's time with the child would end on Sunday as was the applicant's contention, or on Monday morning at the commencement of school as was the applicant's position, remained unresolved until interim orders were made on 15 December 2022.
The respondent conceded that the issue escalated to the point where the applicant called the police.
Again, what appears to confound the parties is their inability or failure to recognise that whichever of them may have been at fault in terms of any agreement reached, the outcome is that the child observed her parents in high conflict.
A similar dispute arose in December 2021 when the respondent attended at the applicant's home seeking that the child be returned to her. Again, the applicant's evidence confirms that there was a distressing and aggressive interaction between the parties.
A further consequence of the adverse interaction between the parties is a concession by the respondent that the child was so distressed that she was not able to attend school on the following Monday.
Paragraphs 149 to 152 of the applicant's affidavit allege that the respondent took steps to ensure that the child was not able to be collected by the applicant from school after not having seen her for 24 days. The applicant asserts that he did not accept that his time with the child should end on Sunday but given there was a significant duration of no time he was prepared to accept a reduction.
Thereafter, it is uncontroversial that the ability for the parties to communicate and make arrangements for the child to spend time with the applicant was non-existent and the communication between the solicitors became progressively more emotive and less conciliatory.
In October 2022, the child was taken to Dr U for a mental health care plan with the intention that the child would then be referred to Ms E for therapeutic support.
It is apparent that in terms of the information provided to Dr U no mention was made of the applicant as a second or alternative parent. The respondent conceded that the applicant had not been advised of the intention to engage with Ms E.
Paragraph 24.4.7 of the respondent's affidavit refers to remarks made by the child to the respondent upon collection from school on 11 May 2023. The precursor to the affidavit is an assertion that the child had told the respondent that "she had been upset during a lesson of the Rights of a Child in their health class that day and that she subsequently spent some time with the wellbeing teacher to help her". The child's teacher sent a message to the respondent alerting her to the teacher's observation that the child had become upset resulting in tears and sadness following the discussion on the United Nations Convention on the Rights of the Child. The topic was part of the "Child Safe Curriculum" promoted by the school.
The respondent sought to link the child's distress at school with the circumstances of her spending time with the applicant.
The respondent's evidence was unconvincing. Moreover, the message from the teacher supports a finding that there was a significant and wide-ranging discussion with the cohort of students including the child. The mischief is compounded by the manner in which the affidavit on this issue has been drafted by extracting statements purportedly made by the child, potentially taken out context presented as if it was a continuing conversation rather than separate remarks.
Again, the matters raised by the teacher in her message are important not because of any relationship issues between the applicant and the child, but rather as a clear indicator that the child presents with anxiety and is upset by the ongoing conflict between the parties.
A similar consideration arises in respect of paragraph 24.4.9. The references to the child missing "Grandad", and not feeling safe with the applicant because "he doesn't know the right parenting" and does not want the child to have emotions, is misleading.
The drafting does not reflect that the statements attributed to the child are arbitrary and not part of a comprehensive conversation.
It is the contention of the respondent that the child does not want to go to the father.
On 20 February 2024, the respondent instructed her solicitors to set out the particulars of her allegations which asserted that:

[55]

Pursuant to the Order, documents were produced by the Department for Child Protection South Australia ("DCP") on 7 March 2025.
Section 67ZBH(1) of the Act requires that the Court admit into evidence any particulars, documents or information provided under an order made pursuant to s 67ZBE or under s 67ZBE(5) in which the Court intends to rely. The documents provided by DCP were tendered and marked as Exhibit "4" in the proceedings.
The documents were produced in a redacted form such that the Court is not able to identify or ascertain the identity of a notifier pursuant to s 67ZBF(3)(b).
No application was made, nor did the Court consider that pursuant to s 67ZBH(3)(b) that it was "critically important to the proceedings" to ascertain the identity of the notifier.
As such, the evidence is to be given such weight as the Court thinks fit given that the provisions of the Evidence Act 1995 (Cth) do not apply.
Exhibit "4" contains three separate case notes.
The first is dated November 2024 and involves a notification made by ... at 7.49 pm. The case note refers to an alleged incident in November 2024 wherein the applicant took the child to a store at Town W and left her waiting in the car whilst he made a purchase. The child reported to the respondent later that day that she was beginning to feel anxious, was hot and had been in the car for about 15 minutes before the applicant returned.
The notification refers to an alleged conversation between the child and the applicant as to whether heat was a risk factor. The child allegedly reported to the mother that she was "scared of the father, felt like she was walking on eggshells" when with him and was concerned that he was quick to temper.
The notification was considered and a decision was made that no reasonable grounds existed to suspect that the child was at risk of harm.
The second case note refers to a report made in December 2024 at 2.07 pm. The allegations raised were that after recently spending time with the applicant, the child felt like she wanted to die and she could not stop hurting herself.
The notifier reported the following statement from the child:

[61]

On 2 August 2023, a Senior Judicial Registrar ordered the preparation of a Family Assessment Report. The said report was prepared and completed on 5 December 2023 by Court Child Expert Ms V ("Ms V").
Ms V was not called to give evidence, however, the parties rely upon the evidence of Ms O of Q Psychologists who prepared a Family Assessment Report on 25 February 2025 pursuant to the Orders of 27 September 2024.
It is apparent from paragraph 15 of the report of Ms O that she considered and has placed some importance on Ms V's report as follows:
1. A Family Assessment was subsequently conducted by [Ms V] with a report dated 05.12.23. During the observation session between [the applicant] and [the child], [Ms V] noted that [the applicant] talked a lot, limiting [the child's] "responsiveness and involvement". When with her mother, [the child] was noted to present as relaxed, and would initiate conversations. [Ms V] reported that [the child] presented as more comfortable and confident in the presence of [the respondent] (as well as [Mr K], [Mr C] and [Ms B]) than with [the applicant]. [The child] was noted to be a sensitive, somewhat anxious child, potentially impacted by the different parenting styles. [Ms V] reported [the child] having expressed a wish to spend three nights per fortnight with [the applicant] (i.e. each alternate weekend). In her report [Ms V] speaks to the risks of children being exposed to family violence, but also of the importance of [the respondent] containing her feelings about [the applicant] (i.e. from [the child]), with the possibility noted of [the child] having been influenced by her mother's views. Further, [Ms V] considered [the applicant's] emotional attunement to [the child] and his capacity to learn in his parenting to be an "important consideration". [Ms V] recommended that [the child] continue spending five nights per fortnight with [the applicant], expressing concern about the impact on [the child] of further changes in her life. She also recommended that if time during school holidays was to be shared equally it occur on a week about basis (i.e. and no longer). It was recommended that therapy be provided for [the child], that consideration be given to [the respondent] be able to make decisions about [the child's] welfare in circumstances where the parents are unable to agree, and that [the applicant] undertake further interventions regarding his parenting and anger management.
Whilst there was an initial objection from the applicant's counsel to the Court receiving the Family Assessment Report prepared by Ms V, the reliance upon the information contained in the Family Assessment Report prepared by Ms O justifies its admission into evidence. Again, I am cognisant that Ms V was not called for cross-examination. I suspect the parties' focus was upon the assessment and Family Assessment Report of Ms O and as such did not think that the Court would be assisted by the Family Assessment Report of Ms V.
Ms V recorded each of the parties' descriptions of the child, and at paragraph 9 the following is set out:
1. [The child] has allegedly experienced emotional struggles whereby she has previously developed some anxieties around certain sensory factors and received professional support for such. There are also allegations by [the respondent] that [the child] continues to experience emotional difficulties such as emotional dysregulation, anxiety, and meltdowns. [The respondent] said she believes these are related to her contact with her father and/or the parties poor co-parenting relationship. ...
The applicant is recorded as having no concerns about the child's safety in the care of the respondent noting that the interviews were conducted on 31 October 2023.
Ms V explored with the parties the extent to which they considered it was important to the child to have a meaningful relationship with each of them. The respondent agreed that the child needed to maintain a relationship with the applicant providing it was safe to do so.
For his part, the applicant acknowledged that the child loved the respondent and at that time, he thought that the respondent was a "great mum" who he could not fault describing her as "caring and loving."
The concern of the respondent was his view that the respondent would continue to undermine his relationship with the child.
Ms V explored the separate proposals of the parties. The applicant expressed his regret at leaving major decision-making to the respondent and conceded that because of the long hours that he worked, the respondent was the primary caregiver.
In interview, the child referred to the parties, Ms B and Mr C as the most important people in her life and whilst she felt safe in the care of the respondent, at times she felt unsafe when with the applicant.
The child expressed concern at the propensity of the applicant to get angry and that he often shouted and used poor language.
It is likely that at times the applicant used derogatory language when referring to the respondent and when asked what might assist her to feel safer in the applicant's care and not feel sick, she said that he "needs to not get angry" and to "change his behaviour".
In assessment, the child identified the applicant as an important person in her life but also recognised that his anger and aggressive conduct made her feel anxious and unsafe.
Ms V supported a continuation of the interim orders on the basis that they provide the child with an opportunity to maintain current arrangements and hopefully develop into a settled caregiving arrangement.
Ms V did consider the disadvantages to a continuation of the interim arrangements based upon the poor co-parenting relationship that existed between the parties and their apparent inability to negotiate and agree arrangements for the child.
Ms V properly considered the advantages and the disadvantages of the proposals of the parties as presented to her in 2023. To a significant degree, the issues that confronted Ms V are not dissimilar to the current circumstances.
At the time, the respondent sought that the child's time with the applicant be reduced from five nights per fortnight to three nights per fortnight. Ms V opined that the arrangement would have the advantage of the child experiencing a more familiar parenting arrangement but that three nights per fortnight and extended block time over the school holidays would still be sufficient to maintain a meaningful relationship.
Of some significance is a consideration by Ms V that the respondent's proposal may reduce the child's anxiety with a corresponding improvement in her emotional wellbeing.
The disadvantage which also weighed heavily on Ms V was the potential for the applicant to be less involved in the child's curricular and extra-curricular activities, the child may come to the belief that the applicant is an unsafe parent.
The final evaluation of Ms V was that the interim parenting arrangements should remain in place in circumstances where a sudden change may add to the child's anxiety rather than lessen the risk. The recommendations that the interim arrangements were more likely to benefit the child than not are predicated upon the relationship between the parties improving and the applicant to gain better insight in being able to manage his behaviour, anger and aggression.
It is significant that Ms V did not have to consider the applicant's current proposal that would see the child transition into the primary care of the applicant and spend three nights per fortnight, half school holidays and time on special occasions with the respondent.
As I am required to do, I temper the weight that I give to the evidence arising from the Family Assessment Report of Ms V given that she was not called for cross-examination.

[64]

Ms O practices as a Clinical Psychologist holding several. She is also a member of the relevant professional associations.
Ms O is well known to the Court and has given evidence in many cases.
There is no challenge to the expertise of Ms O as to her ability to give evidence and provide an opinion as to the matters raised in the letter of instruction.
It should also be noted that Ms O conducted extensive interviews with each of the parties, the child, Ms B and Mr C and Ms R of the child's primary school. In addition, Ms O observed interaction between the child and each of the parties.
The report also sets out the materials used namely, various standardised tests that focus on child behaviour, depression, anxiety and other screening risks.
For reasons that are unclear, Ms O was unnecessarily provided with virtually every document that comprised the court file from the Initiating Application filed 4 October 2022 to an Outline of Case Document dated 23 September 2024.
In interview, the child presented as polite and mature. Ms O had no difficulty building an appropriate rapport.
The child confirmed that she enjoyed being with the respondent and Mr K but missed Ms B who has now left the home and lives independently.
The child was happy with the time that she spends with the applicant, preferred to spend time at Town T rather than his Region Y-based home and whilst she enjoyed interstate travel, she experienced some anxiety and worry if she had not been given some notice that a holiday or trip was planned.
At present, the child spends five nights per fortnight with the applicant and whilst she considered that the amount of time was "good" she acknowledged some anxiety at leaving the respondent's care and was clear that she did not wish to spend more time with the applicant.
Ms O explored the child's dislike of the applicant's Region Y house and the following is recorded:
1. [The child] said she does not like being at the [Region Y] house because when they are there her father lies, yells at her and gets angry with her, but he does not do this when they are out or away. [The child] said her father gets "really angry" with her if she makes mistakes such as doing her hair wrong, putting on her shoes incorrectly, or eats at the wrong time. [The child] said her father thinks she is happy but she lies to him because she does not want him to be angry and lock her in her room. Of him lying, [the child] said her father used to threaten her sister, and used to lie to her sister and her mother, which she knew from [Ms B] and her mother...
The child was positive as to her relationship with Ms J and whilst sometimes Mr C is moody, she enjoyed his company.
The theme of the extent of the child's anxiety was a thread passing through the warp and weft of the matter. Ms O recorded that the child was anxious going to school, going into the applicant's care and leaving the respondent's home.
Of particular moment, the child spoke of the occasion when both parties attended a doctor's appointment. The child said that she felt "really weird", was anxious and scared. There is little doubt that the conflict between the parties is palpable and keenly felt by the child resulting in worry, fear and high anxiety.
The child was also acutely aware of the at times volatile interaction between the parties and was worried that there would be police intervention.
Ms O interviewed the child after the observed interaction with the applicant.
Ms O recorded the interaction between the applicant and the child as "calm and settled" and whilst noting that the applicant "spoke more softly, gently and slowly providing encouragement but also guidance, questions, prompts suggestions and narrations" it was noted that the applicant spoke with little pause, few gaps in which the child could engage verbally and kept talking over the child if she attempted to interject.
In evidence, Ms O was asked to consider the child's perception of the applicant in terms of his mannerisms but as a result, focussed on a risk to the child that might arise from the intensity of the applicant's presentation.
The following extract from the evidence is relevant:[5]

[66]

The child gave examples of her perception of the applicant becoming angry when she had wanted to take a favourite toy with her away on holiday and as a result was concerned that he would be angry when he reads the Family Assessment Report. Apparently, the child has a recollection of the applicant reading the last report and Ms O records that the child said that he had "screamed" at her on that occasion.
As discussed, Ms O incorporates the use of standardised tests as part of her assessment. In that regard, Ms O sought to explore the extent of the child's anxiety and the results are set out as follows:
1. [The child's] results on the self-report measures the Children's Self-Concept Scale - Third Edition (Piers Harris 3) and the Revised Children's Mamfest Anxiety Scale - Second Edition (RCMAS-2) were valid and able to be interpreted. On the RCMAS-2 her results indicated she is experiencing extremely problematic levels of anxiety across all areas of functioning (e.g. on the physiological anxiety, worry and social anxiety scales). On the Piers Harris 3 her results indicated she is experiencing significant problems with mood, behaviour and functioning (her results falling in the very low range on all scales).
It was apparent to Ms O that the child did not display the same level of anxiety nor report of anxious behaviour, worry or fear when with the respondent. Her observed interaction with the respondent was noted to be "in gentle negotiation together", relaxed and enjoyable.
Ms O records that the respondent was consistent in her dislike for the applicant. It is likely that the child would readily pick up on the respondent's attitude even if it was not overtly displayed.
The applicant was noted to be complementary of the respondent and expressed his preference that the parties be able to communicate and get along without difficulty in order to provide a more benign environment for the child. He accepts, however, that the parental relationship is of high conflict and whilst he considers it principally emanates from the respondent's intense dislike of him, there is a resigned concession that circumstances are unlikely to change.
In evidence, Ms O was asked to reflect upon the apparent observations of the teaching staff at the child's school suggestive of panic attacks. The child's behaviour was observed as shaking, unable to form coherent thoughts, overwhelmed, unable to function within a classroom setting, seeking emotional comfort and expressing an inability to cope. Ms O accepted that the behaviours, as set out by counsel, was indicative of a panic attack and given the child's anxiety test results, it was highly likely that the child was experiencing panic attacks.
Ms O gave consideration to the dynamics in the homes of each of the parties. She accepted that the respondent's view of the applicant would remain static and that it was unlikely that she would be able to reconcile her dislike for the applicant and to re-assess her belief that the child is at risk in his care. Ms O considered it important that Ms J and Mr C were part of the applicant's household and were likely to have a moderating influence on him.
The following exchange with Ms O highlights the emotional and psychological risk to the child:[6]

[78]

The respondent contends that the applicant has perpetrated family violence during the period of cohabitation. As discussed, the respondent alleges that as and from 2003, the applicant displayed aggressive behaviour and poor anger management control. It is alleged that the applicant readily lost his temper and on one occasion, threw the respondent's clothes from a hotel window.
The respondent also raises a concern that the applicant was not able to regulate his use of alcohol and would often return to the home intoxicated and on occasion threaten the respondent and members of her extended family. A further complaint is that the language often used by the applicant towards the respondent was derogatory and offensive.
The allegation that the applicant perpetrated family violence extended from the early period of the commencement of cohabitation to the date of separation in January 2021.
The evidence of Mr K as to the occasions of confrontation with the applicant are relevant to the respondent's case in that she considers they evidence the applicant's inability to control his anger and demonstrate a lack of insight on those occasions when Mr C or the subject child was present.
The applicant denies the broad submission that he perpetrated family violence, but he does not resile from certain aspects of the respondent's allegations, in particular the inappropriate and offensive language that he used towards the respondent and his preparedness to engage in confrontation with Mr K in circumstances that were unnecessary.
Of particular concern is the allegation by the maternal grandmother that in early 2022, the applicant approached her at the child's school. It is her contention that the applicant may have spat on her and said "your daughter's a fucking slut, ...".
As has been considered, I found the evidence of the maternal grandmother to be reliable and whilst the applicant was not prepared to concede the allegation that he spat on her, he did acknowledge the language used.
It is a relevant consideration that whilst not the subject of agreement between the parties, the child has spent five nights per fortnight with the applicant following separation and as confirmed by the interim Orders of 15 December 2022.
The evidence of Ms O does not support a finding that the child is at risk of family violence. I accept the applicant's evidence consequent upon his recognition of previous poor and inappropriate conduct, that he has now accepted the current situation, has re-partnered and no longer seeks confrontation.
For her part, whilst the respondent raised allegations of family violence, it could be considered as a "button pressed lightly". In cross-examination, the applicant was not significantly pressed and whilst the parties were not able to agree the parenting arrangements for the child, the respondent's proposal recognises the importance of maintaining the child's relationship with the applicant albeit for a reduced period, namely three days per fortnight as opposed to the current interim arrangements of five nights.
Whilst the history of conflict and at times aggressive confrontation as evidenced between the parties may not impact upon the arrangements for the child to spend time with each of them, it has a relevance when considering parental responsibility and decision-making on behalf of the child. The parties have recognised that despite their best intentions, they are not able to reconcile their differences. Conflict remains high and whilst some level of communication remains viable, it is not sufficient nor is it an indicator that the parties could resume a parental relationship sufficient to appropriately consider reaching a consensus.
The potential risk to the child arises not because of any potential for the child to be physically unsafe in the care of either of the parties but rather the risk potentially psychological or emotional harm which has its foundation in the diagnosis of Ms O that the child suffers from a clinically unacceptable level of anxiety.
I am satisfied on the evidence that the applicant does not properly appreciate the extent of the child's anxiety and its potential for lasting psychological harm whereas the respondent satisfied Ms O as to her attunement to the needs of the child.

[85]

I place significant weight on the evidence of Ms O that unless there is a significant change in the present arrangements for the child, it is unlikely that her overwhelming anxiety will increase with a detrimental sequelae on the child's presentation.
Whilst I do not ignore the applicant's case that the respondent has sought to interfere with his relationship with the child, I also place weight on the applicant's concession that certainly since the Orders of 15 December 2022, the respondent has complied albeit with an understanding that she opposes the interim arrangements.
I have a level of confidence that the parties will be compliant to court orders and despite the concerns of the applicant, the evidence does not support a finding that the respondent has embarked upon a course of conduct designed to undermine the child's relationship with the applicant.
The child presents with a clinical level of anxiety that now manifests itself in how the child presents and conducts herself. Ms O expressed considerable concern as to the potential for adverse impact on the child if the current predicament in which the child finds herself is not in some way resolved or ameliorated.
There is limited evidence that would support a change in the primary care from the respondent to the applicant. The applicant lacks insight as to the detrimental impact upon the child of his entrenched view that the child should either live with him or at the very least remain in his care pursuant to the current interim arrangements. The evidence of Ms O and the continuing intensity of the conflict between the parties speaks against the applicant's proposal.
A similar consideration applies to the current arrangements remaining or an order being made in terms of the respondent's proposal namely, that the child spend three nights per fortnight with the applicant as opposed to the current arrangements of five nights per fortnight.
The evidence supports a reduction in time to three nights per fortnight even though the current interim arrangements have been in place for some years. It is self-evident that the child's anxiety has not diminished but rather has increased and there is evidence of the child being placed at significant risk of psychological and emotional harm if the current arrangements continue.

Alphen & Alphen [2025] FedCFamC1F 272 (1 May 2025)

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)

Legislation Cited (4)

Cases Cited (2)