Ball & Ball (No 8) [2025] FedCFamC1F 652 (29 August 2025)

(a) For a period of three visits each alternate weekend from Friday after school until Saturday after soccer is concluded or midday if there is no soccer scheduled.

(b) At the conclusion of the time in Order 2(a) for a period each alternate weekend from after school Friday or 4.00 pm if a non-school day until 5.00 pm Sunday.

1. The time in Order 2 shall continue throughout the school holidays unless otherwise agreed between the parents.
2. Notwithstanding any other order, Z shall spend time with the mother from 10.00 am Christmas Eve 2025 until 2.00 pm Christmas Day 2025.
3. The father is restrained from sending more than one text message each day to Z while Z is spending time with the mother, and with a copy of the message to be provided to the mother at the time it is sent.
4. The changeover location shall be at the school Z attends, at the location that Z is playing soccer, or otherwise as per Order 6 of the Orders dated 23 December 2024 if changeover is occurring on a non-school day.
5. All parties' costs are reserved.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ball & Ball has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are short form oral reasons for decision pursuant to s 69ZL of the Family Law Act 1975 (Cth) ("the Act") in an application for interim parenting orders.
2. There are three children subject to the substantive proceedings: X (born on 2008) Y (born on 2009), and Z (born on 2012) ("the children").
3. X lives with the father, Y with the mother, effectively, and Z lives with the father and currently spends limited time with the mother.
4. The parties are the children's mother and father.
5. An Independent Children's Lawyer has been appointed to represent the children's interests and appears in these proceedings.
6. The parties married in 2009 and separated on about 26 July 2021.
7. The parties have and have had an extremely high conflict relationship, which has severely negatively impacted on all three children.
8. I refer to my prior decisions in Ball & Ball [2022] FedCFamC1F 1068, Ball & Ball (No 2) [2023] FedCFamC1F 752, Ball & Ball (No 3) [2024] FedCFamC1F 215, Ball & Ball (No 4) [2024] FedCFamC1F 232, Ball & Ball (No 5) [2024] FedCFamC1F 261, Ball & Ball (No 6) [2024] FedCFamC1F 308, and Ball & Ball (No 7) [2024] FedCFamC1F 903. This decision should be read together with those seven decisions.
9. I will not restate the material contained in those decisions.
10. The matter comes before me for further consideration of the appropriate interim time for Z to spend with the mother in the context of the reasons for decision as set out, in particular, at [16]-[22] of decision Ball & Ball (No 7) which I will set out here for convenience:
    1. The mother's affidavit filed 9 December 2024, in particular, at paragraphs 9 to 16, but also other points, including, in particular, at paragraph 35, for example, purport to recount certain aspects of the Judge's findings in the District Court, and certain things that occurred in the District Court, based on her recollection. As I indicated during oral submissions, I am not willing to place weight on the mother's hearsay summary. We must await the settled reasons of the judge. However, if the District Court judge were to make specific credit findings linked to motives associated with these family law proceedings, that would not only be relevant but could also be extremely probative as to the question of whether it would be appropriate to have a further assessment of interim orders in the near future. The court and parties will need to await a copy of the settled reasons. It was thought on [...] when the matter was heard that those would be available by last Friday, 20 December, and it was on that basis, given the potential probative value of those reasons, that I had stood the matter over to today, Monday, 23 December 2024. Unfortunately, the settled reasons did not eventuate, and so I have only the fact of the acquittal by a judge to rely upon.
    2. The father submitted that the acquittal is not relevant to the assessment of the change of circumstances. Whilst it is not determinative, I think the acquittal on [...] charges is clearly a relevant factor for me to weigh, noting that these charges was one of the significant factors relied upon to put the supervision in place. I note that in my first interim decision (Ball & Ball [2022] FedCFamC1F 1068), paragraph 9, the father argued that the police decision to charge was a significant change of circumstances which justified a re-determination or rehearing of the then interim consent orders, despite the fact that the underlying facts and allegations were known at the time the father agreed to those consent orders that were made. I do not criticise the father for the submission made at that time, which I considered reasonable. It was made on the basis that where an independent authority such as police and DPP considered there was sufficient evidence to charge a person, the court would give that weight.
    3. In my view, on a similar basis, the fact that a District Court judge has dismissed the charges after an 8 day judge-alone trial is also a relevant factor to weigh as to whether there has been a change in circumstance. Of course, the evidentiary standard is quite different, and the standard beyond reasonable doubt in a criminal trial bears little relationship to the standard of unacceptable risk under the Act. Nevertheless, it is in my view a sufficient change of circumstances in the context of this case.
11. I note, in particular, what I said at [21] that despite the acquittal "at present I can only proceed on the basis that those proceedings remain on foot" and that, at that time, it was not open to me to consider extensive changes to the current arrangement.
12. It is in that context that the Orders for Z and the mother were made, and I set out for ease of reference Orders 5 to 7 of the Orders of 23 December 2024:

[Z] - unsupervised time with the mother

1. [Z] born [2012] ("the child") shall spend unsupervised time with [Ms Ball] born [1974] ("the mother") as follows:

(a) Each Sunday from 10am until 4pm; and

(b) Boxing Day 26 December 2024 from 10am until 4pm.

[Z] - change overs

1. Change overs between the mother and [Mr Ball] born [1972] ("the father") shall take place at the front of K-Mart at [R Shopping Centre Town C].

2. The mother and father are not to approach, nor speak with, each other unless necessary, and if so are to speak in a civil fashion and only concerning necessary current parenting matters relating to [Z].

(As per the original)

1. Since that decision which, as I have said, clearly set Z's time with the mother on a conservative basis for the reasons stated, the settled reasons for decision of his Honour of the District Court of New South Wales have been received and as a consequence of the dismissal of proceedings and receipt of those reasons, a single expert report from Mr S dated 14 May 2025 has been received.
2. It is finally common ground that all charges have been dismissed with written findings by the learned District Court judge, and no appeal or other charges that have been filed or heard.
3. In the matter before me, the mother relies on:

(a) Her affidavit filed 20 June 2025;

(b) the single expert report of Mr S of 14 May 2025 (Exhibit M1);

(c) the reasons of His Honourdismissing the charges, (Exhibit M4);

(d) two letters from mental health clinicians in relation to Y's mental health (Exhibits M2 and M3); and

(e) Case Outline (MFI 6).

(a) His affidavit of 9 August 2025;

(b) Case Outline including the proposed Minute of Order (MFI 3).

(a) the Amended Case Outline (MFI 4), which includes Orders.

1. The father's primary position is that a further interim hearing should not be allowed, given the number of interim hearings to date; that there have been no relevant change of circumstance.
2. He relied in particular on the decision of Austin J in Bustillo & Bustillo [2024] FedCFamC1F 556, in particular at [45]-[46]:
   1. Finally, but no less importantly, the father could not point to any change of circumstances which would justify revision of the interim orders last made in February 2023. The only development contended by the father was the release of the single expert's report, which should not usually be viewed as a change in circumstance to justify another interim hearing when the expert opinion evidence is likely to be controversial but is still untested (Fowler & Northwood [2022] FedCFamC1A 173; (2022) FLC 94-114 at [10] and [32]-[47]).
   2. Neither s 65D(2) nor s 65DAAA of the Act purports to place restrictions upon when interim parenting orders may be varied, but litigation should not be conducted by serial interlocutory skirmishes in the hope or expectation that, by process of attrition, one party might eventually submit to the will of the other. Interim hearings should only be conducted as and when necessary to make orders placing the family into a satisfactory holding pattern until the parenting arrangements which will govern their lives can be properly determined at final trial. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report.
3. The essence of the father's submission is that mother has engaged in an attempt to wear him down and there is no material change of circumstances, and that even if not ideal, the current interim orders constitute "a satisfactory holding pattern".
4. The father addresses these issues in his affidavit at [1]-[12], which summarises his belief in relation to legal issues, but it is clear, I should say, that the father is not a lawyer.
5. At [13] the father says there is no substantial significant change, setting out his understanding of the law, and making what are, in effect, his submissions on the law through to [17].
6. He then addresses his view that His Honour's decision, and the decision not to appeal or not to proceed in the Local Court, and the availability of the expert report are not sufficient grounds on which this Court can act, through to [42].
7. I note this is primarily submissions. It cherry-picks the material, for example from my last decision, in a way which, if it was done by a lawyer, would give rise to grave concerns as to misleading.
8. However, I accept the father is not a lawyer, though he is purporting to give what is, in effect, an expert legal opinion, and fundamentally, much of that material is irrelevant and misconceived.
9. These could have been submissions were made by counsel. It was not for the father to say he has been told the law is this and that, and on his view of the evidence, the legal result is this or that.
10. The father's affidavit and his submissions do not, nor do submissions from counsel, adequately address the key issue, which is the manner in which the father ran his case on 23 December 2024. His then case, which I accepted, was that given the fact that, although there was an acquittal, there was still the possibility of an appeal, there was still an outstanding issue, and that the Court had to be very careful and could not proceed upon the basis that the charges were gone.
11. I accepted the father's submission and I proceeded on that basis and made very limited orders, and I consider it quite inappropriate for the father to have come along and made a case, which, in effect, is entirely inconsistent with the case he made on 23 December 2024 - a case in which he effectively had the benefit of a cautious approach, which is what he urged.
12. As I said, nothing said by counsel for the father adequately addresses that issue either.
13. The mother relies on the learned District Court judge's findings that:

The Court also notes the previously mentioned issues in relation to inconsistencies in and between his three versions, his demonstrated bias towards and his father and dislike of his mother after the breakdown of his parents' relationship, his willingness to make specious allegations to police in terms of his mother's compliance with the AVO she was subject to, the inconsistency of his claiming that he omitted matters from the second JIRT interview because of threats made to him by his mother, notwithstanding that in that very JIRT interview, he alleged for the first time that his mother had indecently assaulted him when he was ten or 11 years of age.

Having carefully taken into account the directions previously articulated in these reasons, the submissions of the crown prosecutor relating to why the Court would accept the evidence of [X] as being honest and reliable, and the submissions of senior counsel to the contrary, I am not satisfied that [X] was an honest and reliable witness such as would allow me to be satisfied beyond reasonable doubt that the touching in the manner and circumstances described by [X] and relied upon by the Crown to substantiate count 22 actually occurred.

In relation to the credibility of the accused, the Court notes the Crown and defence submissions in relation to her evidence. The Court paid particular attention to the accused as she gave evidence. She was appropriately emotional when questioned in evidence-in-chief and when cross-examined by the crown prosecutor. The accused made admissions against interest in relation to a number of photographs and acknowledged that her voice could be heard of a number of the videos. The accused was consistent in her approach both in-chief and in cross-examination. The evidence that she gave was internally consistent. She appeared to the Court to be horrified at the suggestion that she had deliberately created child abuse material. She consistently and strongly maintained that the photographs represented family members, at times recorded humorous moments, or were taken for medical purposes or to refute [Mr Ball's] claims that she was a bad mother who did not properly look after her children.

I found the accused to be an honest and reliable witness, and I accept her evidence that she did not indecently assault [X] as he described.

1. That evidence is relevant where there is no appeal and no other outstanding matters.
2. That finding may be given weight where the trial judge saw X, saw the mother, viewed the images, which I have not seen, and dismissed all the charges and made those findings.
3. This is admissible in parenting proceedings, including in a final hearing, and although obviously not binding upon me, where another judge has had the benefit of seeing the mother and viewing all the material and has made those findings, and the charges have been dismissed, although there is, of course, a very different criminal standard involved, nevertheless reading that judgment as a whole, there is nothing in it which would sustain the allegations of unacceptable risk of sexual harm.
4. The father in his affidavit at [38]-[42], again, perhaps in a misconceived fashion, submits that in his view, the presence of an expert report is not a significant change. Again, I will give him the benefit of the doubt, since he is not a lawyer, in finding that his evidence in this regard is merely misconceived.
5. The father seemingly purports to give his legal view, whether or not there is a "satisfactory holding pattern" and his "belief" as to what the evidence establishes within the meaning of Austin J's decision.
6. Again, I will give him the benefit of the doubt here that he is merely misconceived and not trying to mislead me as to questions of law.
7. In many cases, what Austin J says about the presence of an expert report is entirely uncontroversial; however, each case is to be decided by reference to its unique facts. The simple fact is that in this case, because of the spectre of the outstanding criminal proceedings, including, as I was told in December last year, an appeal, there has not been a consideration of the appropriate time for the child to spend with the mother, other than with the background of the possibility of a finding of criminal responsibility for sexual abuse.
8. Now, when one looks at Mr S's opinion in the context of the dismissal of all criminal proceedings and His Honour's findings, his opinions are clearly relevant, both to the first question of whether or not different orders should be made now, which goes to whether we have a suitable holding pattern or not, and then as to the appropriate orders if further orders are to be made.
9. Of course, Mr S's opinion is, as was said, untested, but so is all of the evidence, and whilst there is no magic in a Family Report or a Single Expert Report, it is another piece of relevant evidence, which on its face is considered and discloses careful reasoning.
10. Given the history of the matter and the father's position, I consider it worthwhile setting out some substantial aspects of the report:
    1. [Z] was interviewed individually at the home of his father, and was also observed in the company of his siblings with his father, and with his mother and siblings the following day. When interviewed separately, he was abrasive and overtly negative towards his mother. He recounted numerous anecdotes about her various shortcomings and described events as though he had been personally present, including commentary about child support, school fees and allegations of sexual abuse. [Z's] presentation conveyed a negative litany about his mother. He aligned closely with his father and [X] when speaking about her and appeared to be swept up in the collective negativity.
    2. However, when observed in his mother's company, his presentation changed markedly. When alone with her, he was calm, engaged and warmly interactive. When accompanied by his siblings, he remained neutral and resisted being drawn into negative discussions, despite the emotionally charged atmosphere. He appeared attuned to his mother's distress, particularly in response to the behaviour of [X], and to a lesser extent, [Y]. Notably, at the time of departure, when his siblings were not present, [Z] gave his mother a long, lingering and affectionate hug. He was unaware that I observed.
    3. The contradiction in [Z's] behaviour is significant. When interviewed individually at his father's home, he used the pronoun "we" to describe his concerns about his mother. He spoke in vague generalities about "bad stuff" that his mother had allegedly done to "them," including her involvement in court proceedings and a criminal trial in which "she got off." He expressed the view that the judge's decision was unfair, that more witnesses should have been called, and that the judge had failed to understand the full picture, thus reaching the wrong conclusion. Despite this criticism, [Z] did not describe any specific behaviour from his mother that had frightened him or caused him personal harm. Nevertheless, he continued to speak negatively about her, claiming that she had tricked [Y] into saying untrue things so that [Y] would live with her. He described ongoing conflict between his parents, attributing its initiation primarily to his mother, especially regarding work-related arguments.

...

1. [Z], who was previously described by [Ms D] as a gentle, intelligent and affectionate boy, remains triangulated within the family conflict. When interviewed at his father's home, he displayed strong alignment with his father's narrative. Of particular concern is that [Z] is starting to show signs of alienation from his mother. He spoke about her in a manner devoid of ambivalence, repeated borrowed narratives beyond his developmental capacity, and demonstrated knowledge of adult matters, such as about finances, child support and legal proceedings. Despite this, my direct observation of [Z] with his mother was that he displayed affection, sought comfort and engaged warmly with her. The stark contradiction between his behaviour with his mother and his verbal reports while with his father is conspicuous and must be understood as an outward representation of being trapped between conflicting parental narratives.

1. These direct observations and descriptions of Z's behaviour are suggested of alignment with the father, of behaviour intentionally seeking to align Z by the father, but also suggestive that Z is still in a position where he is willing to engage with and warmly interact with the mother, so the relationship may still be saved.
   1. It is important to apply these findings to the allegation that [Ms Ball] is a sexual abuse offender and that she offended against her own children. The history and presentation of [Ms Ball] reflects nothing of these considerations. She is not low functioning, she does not come from a chaotic, impoverished, low socio-economic background, she has no reported history of trauma, does not present with severe psychiatric illness or personality disorder, she conveys a high capacity to reflect upon the emotional needs and experiences for children, she is capable of having reciprocal adult, interpersonal relations as she is enjoying currently, and there is no suggestion that the alleged offending occurred in the context of a coercively and controlling relationship where she felt compelled to do so; her presentation does not fit with in the typologies identified. Significantly, the description provided at the time of the initial reports were that she engaged in this behaviour towards [X] for her own sexual gratification, although the available studies suggest that sexual motivation is not what motivates offending in this group of women but rather, that their offending stems from their emotional needs, including loneliness, dependency, and unresolved trauma, none of which applies to [Ms Ball] or her presentation.

CONCLUSIONS:

1. The allegations and counter-allegations have been extensively outlined throughout the affidavit material, elaborated upon during interviews, and previously detailed in the single expert report completed by [Ms D]. With the passage of time, little, if anything, has changed, except that the mental health of the children has continued to deteriorate, and the impact of these proceedings on the family as a whole has become increasingly profound.
2. Notwithstanding the allegations, the inescapable conclusion is that the postseparation parenting relationship between [Mr Ball] and [Ms Ball] has been marked by extreme conflict. The social science literature is replete with evidence regarding the short and long-term adverse consequences for children exposed to escalating and persistent parental conflict following separation. In the short term, children exposed to ongoing parental conflict are more likely to exhibit emotional dysregulation (e.g., heightened anxiety, fear, sadness); behavioural issues (e.g., aggression, defiance, withdrawal); academic difficulties; problems in peer relationships, including diminished prosocial behaviour and increased social withdrawal or hostility. In the long term, these children face elevated risks of chronic internalizing disorders such as depression, anxiety, and low self-esteem; externalizing problems, including conduct disorders and antisocial behaviour, impaired attachment security, particularly with the parent perceived as emotionally unavailable or hostile, difficulties forming and sustaining intimate relationships in adolescence and adulthood and poorer life satisfaction and mental health extending into early and middle adulthood. Children have been reported to perceive their parents' conflict as threatening, with the involvement of children in loyalty binds or triangulation exacerbating the harm done to them 7 and that children's sense of safety and emotional stability is significantly undermined in high-conflict environments. Parenting quality often deteriorates in the context of sustained conflict, with increased hostility, reduced warmth, and inconsistent discipline, mediating many of the observed developmental harms. As such, the damage to children's well-being is not only a direct result of the conflict itself, but also of the conflict's corrosive effects on parental responsiveness and family functioning. The social science research states clearly and unequivocally states that exposure to parents' high conflict places children at significantly heightened risk for anxiety, depression, substance abuse, and difficulty in forming and sustaining reciprocal, satisfying intimate relationships in adulthood. These findings are clearly relevant to the present dispute and relate directly to [X, Y and Z].

1. I note that the acquittals, the full reasons and the findings of an experienced District Court criminal judge who has seen the alleged child abuse material, X and the mother, and the expert's opinion, and also taking into account Z's age and self-protective capacity at almost 13, all satisfy me that there is no evidence which would justify an interim finding that there may be an unacceptable risk of sexual harm of unsupervised time between Z and the mother.
2. I also note where the expert says:
   1. Although much attention has been directed to allegations regarding [X] and the current problems being experienced by [Y], neither child is the subject of these proceedings; the focus of the current dispute must turn to [Z]. He presently spends six hours per week with his mother, an arrangement that, in my view, is plainly inadequate. There have been no substantiated allegations of abuse against [Ms Ball] concerning [Z], and no indication that his mental health has been compromised other than what to me appears to be an emerging alienation. It may reasonably be argued that his greatest risk is psychological alienation from his mother, not abuse from her.
   2. If it is found that [Z] is not at risk in his mother's care, then he should be spending more time with her. Although he has stated a preference for the current arrangement to continue, his strong alignment with his father must influence that view. When observed with his mother, he appeared relaxed, affectionate and engaged. Whilst in one sense there is ample justification for [Z] to spend equal time with each parent, a shared care arrangement may embroil [Z] directly amidst his parent conflict to his detriment. The alternatives are for [X] to continue to reside with his father and continue with alternate weekend time with his mother or alternatively, him to reside with his mother and sister, with a temporary suspension of time with his father, followed by a graduated reintroduction of contact on alternate weekends and during school holidays. Concerns regarding the emerging parental alienation lend support to him residing with his mother and seeing his father and brother.

...

iv. The Capacity of Each Parent to Meet the Children's Needs;

A clear distinction emerged in the presentation of each parent. Mr Ball's narrative was dominated by criticism of Mrs Ball, with a focus on blame, past grievances and perceived injustices. In contrast, Mrs Ball's primary concern appeared to be the welfare and emotional wellbeing of the children. In this regard, she demonstrated a markedly greater capacity to reflect on the children's experiences, to identify the psychological risks they face, and to respond empathetically to their needs. [Mr Ball] displayed a notable lack of empathy and attunement, particularly with respect to the psychological impact of these proceedings on [Y]. [Ms Ball] appears able to better respond to at least the children's emotional needs.

...

vi. Other Relevant Considerations

Families entrenched in high-conflict litigation place children at considerable risk for long-term psychological harm. Children exposed to such dynamics often resort to splitting as a coping mechanism, viewing one parent as all good and the other as all bad. This form of binary thinking reflects a state of psychological crisis and lays the groundwork for future relational difficulties.

Prolonged litigation is likely to deepen these divides, reinforcing rigid perceptions of good versus bad, safety versus danger, and truth versus lies. Based on my assessment, [Ms Ball] does not present a risk to [Z]. On the contrary, it is my view that [Z] should be spending significantly more time with her than he presently does.

However, it remains unclear whether [Z] could tolerate an equal shared care

arrangement. Imposing such an arrangement may place him in an intolerable loyalty bind, with potentially damaging psychological consequences. It is also uncertain whether he would be able to maintain meaningful relationships with both parents under such conditions. If he continues to reside primarily with his father, it is possible that his relationship with his mother will deteriorate. Conversely, a change in his living arrangements, may provide the best opportunity for preserving his connection to both parents in the longer term.

Ultimately, a testing of evidence may shift the balance of concern significantly in favour of one parent over the other. Until that time, the focus should remain on what arrangement best supports the developmental and emotional needs of [Z] while protecting him from further psychological harm.

(As per the original)

1. In that regard, I give significant weight to the expert's opinion that "it may reasonably be argued that his greatest risk is psychological alienation from his mother, not abuse from her."
2. I again acknowledge this is untested, but the principles of an interim hearing require me to consider the evidence, and although I cannot make findings, I must do my best to weigh and balance it.
3. The father also raises issues, in his view, of unacceptable risk of harm, by reference to Z's expressed wishes to him, and, in effect, he purports to enter into an analysis of the expert's opinion on Z's true wishes and offers his own opinion in preference to the expert's opinion concerning Z's views. See at [54], [57] and from [60] of the father's affidavit.
4. I prefer the expert's independent expert opinion to the father's opinion.
5. The father also raises Y's presence in the mother's household as an unacceptable risk, starting at [76], and specifying his opinion about an unacceptable risk at [81].
6. There is no doubt, as can be seen from my prior judgments, that Y has presented with significant difficulties, and no doubt these proceedings have played a substantial part in them. The relevant recent medical opinion, however, is that:

Throughout her engagement without service, [Y's] emotional dysregulation and associated behavioural difficulties have significantly improved.

[Y] received a Psychiatry Review with [Dr CC] in [July 2025] for diagnostic clarification and treatment options. [Ys] medication prior to this review included:

• Escitalopram 20mg daily

• Risperidone 1mg daily

The treatment plan moving forward after review, included a slow reduction to eliminate Escitalopram. [Y's] current medications as of 2/08/2025 are as follows:

• Risperidone 1mg daily

Safeguards have completed mental health assessment, psychological intervention and treatment along with parent support. The current plan for [Y], is to discharge from our service in the coming weeks as there are no concerns or acute risks to self or others identified.

1. I reject the submission from the father that the current treating medical expert's opinion at DD Hospital should not be given weight as they do not explain their opinion.
2. The treating expert's views that Y should be discharged because there are "no concerns or acute risks to self or others identified", whilst it does not meet the admissibility standard pursuant to s 79 of the Evidence Act 1995 (Cth), if it applied, see Makita (Australia) Pty Ltd & Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, which, of course, it does not strictly, as that section does not apply unless ordered to, are clearly relevant, particularly on an interim hearing, because the people who are medical specialists and who are currently treating Y do not think she needs ongoing treatment because she is no longer a harm to herself or others. I prefer that to the father's personal expressed view.
3. The evidence does not, in my view, support any finding that Y's presence in the mother's household represents an unacceptable risk of harm to Z spending time with the mother.
4. The Independent Children's Lawyer proposes the following variation to the current Orders:
   1. That Order 5 and 6 of the orders dated 23 December 2024 be varied as follows.
   2. [Z] shall spend time with his Mother as follows:

a) For a period of three visits each alternate weekend from Friday after school until Saturday after [sport] is concluded or midday if there is no [sport] schedule. > > b) At the conclusion of the time in Order 2a) for a period each alternate weekend from after school Friday to 4pm if a non school day until 5pm Sunday.

3. The time in Order 2 shall continue throughout the school holidays unless otherwise agreed between the parents. 4. Notwithstanding any other order from 10am Christmas Eve 2025 until 2pm Christmas day 2025. 5. The changeover location shall be at the school Z attends, at the location that Z is playing [sport], or otherwise as per Order 6 of the Orders dated 23 December 2024 if changeover is occurring on a non school day.
4. I note that the Independent Children's Lawyer had considered more time, but reduced her proposal after speaking with Z just prior to the interim hearing, to try and balance the issue of seeking to get Z to spend time with the mother against his reluctance. It is a difficult balance to get.
5. As I said, the father seeks the dismissal of the Application, also seeks costs whether he wins or not, and otherwise seeks Orders as set out at MFI 3:

...

1. In the alternative to order 9 herein, that Orders 5 and 6 of the Orders of 23 December 2024 are varied as follows:

11.1. [Z] born [2012] ("the child") shall spend unsupervised time with [Ms Ball] born [1974] ("the mother") as follows:

11.1.1. Each alternate Sunday from 10:00am until 4:00pm with the first such Sunday to be that which immediately follows these Orders: and

11.1.2. Each alternate Friday from the conclusion of school or 3:00pm until the conclusion of soccer, or 12:00pm (whichever should be later) of the immediately following Saturday (i.e. one (1) overnight), with such time to commence on the second weekend following these Orders.

11.2. Changeovers shall be affected as follows:

11.2.1. Those which can take place at school shall take place at school, and

11.2.2. Those which can take place at [Z's sport location], shall take place at [Z's sport location], and

11.2.3. All other changeovers shall take place at the front of K-Mart at [R Shopping Centre , Town C], and

11.2.4. The mother and father are not to approach, nor to speak with, each other unless necessary, and if so are to speak in a civil fashion and only concerning necessary current parenting matters relating to [Z].

11.3. The father shall do all acts and things necessary to ensure [Z] takes all necessary soccer uniforms and equipment to school with him on the relevant each alternate Friday.

11.4. The mother shall do all acts and things necessary to ensure [Z] takes all necessary school uniforms and equipment to soccer with him on the each alternate Saturday.

1. The mother is restrained by injunction from allowing or permitting [Z] to be in the presence of [Y] at any of the following times, or in any of the following circumstances, and shall take all necessary steps to immediately remove [Z] from any place that [Y] is and return [Z] to the care of the father:

12.1. Whenever the mother is aware, or considers, on any basis, that [Y] is under the influence of any illicit or mind altering substance;

12.2. Whenever [Y] is acting in a severely depressed, highly irritable or emotionally volatile way;

12.3. Whenever [Y] and the mother are engaged in verbose and emotionally expressive conflict;

12.4. Whenever [Y] is in the presence or company of a member of her peer group in the home;

12.5. Whenever the mother is not present to supervise.

1. That the child, [Z] born [2012], spend time with the mother as agreed and, failing agreement, as follows:

a) During the school term, each alternate weekend from the conclusion of school on the Friday until the commencement of school on the Monday;

b) For the whole of each school holiday period commencing forthwith but with the exception 27 December 9am to 28 December 5pm to allow for Z to spend Christmas time with the father;

c) On each of [Z's] birthday and the mother's birthday, with such time to commence at the conclusion of school and the conclude at 7 pm;

d) Changeovers on non-school days or times may continue to occur in terms of Order 6 of the Orders of 23 December 2024;

2. That the father is restrained from sending more than one text message each day to [Z] while [Z] is spending time with the mother, and with a copy of the message to be provided to the mother.

3. Neither parent shall attend any sporting or social events relating to the [Z] that are attended by the other whilst [Z] is in the other parent's care.

(As per the original)

1. I note they are not that dissimilar to the Independent Children's Lawyer's, and there is a proposal concerning text messages between the father and Z when he is with the mother's care, which I think has some merit.
2. I note the legal principles have been set out repeatedly in the other decisions.
3. It is an interim hearing.
4. Z's best interests are what I need to consider.
5. It is an inquiry which is "significantly curtailed", as in Goode & Goode (2006) FLC 93-286 1346 at [68], however, I note that I have got to make interim orders, refer to Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 at [120]:
   1. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
6. I note what was said in SS & AH [2010] FamCAFC 13 at [88] and [100]:
   1. Again, we have difficulty accepting that it was appropriate for his Honour to express his finding on this issue with such a degree of satisfaction. It is true K had made comments to the Consultant which strongly suggested that the mother had indeed been putting pressure on her; however, it needs to be kept in mind that statements made by children can be influenced consciously or unconsciously by those around them. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.

...

1. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. I note what was said in Deiter & Deiter [2011] FamCAFC 82 at [61]:
   1. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
2. I note what was said in Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]:
   1. Her Honour early in her reasons referred to Goode & Goode for guidance as to the correct approach to the determination of interim parenting proceedings. It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
3. In particular noting that I must make some assessment, the assessment I make at the moment by reference to the principles in M v M (1988) 166 CLR 69 and Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 is that there is no unacceptable risk in the mother's household of either sexual risk, or risk from Y, or other unacceptable risk of the child spending unsupervised time with the mother.
4. I accept that there is a risk of alienation as identified by the expert.
5. I also note that in the context where there is no longer what I consider to be reliable evidence that would sustain a finding of unacceptable risk of sexual harm, the time the mother has been spending with Z is very limited. It is entirely inadequate. It is not, within the meaning of what Austin J said, an acceptable holding pattern.
6. I will note that I have never delivered this many interim decisions in any other matter, and if I am lucky, I will never have to again, but the rules that require limitations to protect both the parties, the children and, of course, the Court's resources, are general rules, and ultimately the question of whether or not more interim hearings are held is a weighing of all these factors, and ultimately depends upon the individual circumstances of each case.
7. There are many cases where I refuse additional interim hearings for the reasons set out by Austin J, but having had great involvement with this case, and even though I have one of the largest dockets in the country, I am satisfied that it has been appropriate to hear this, and that Z's interests require a re-consideration of this matter.
8. As I have said, I consider there is no unacceptable risk in the mother's household. I think there is a risk of alienation. That is where the balance lies. There can be no firm findings.
9. I do not know what will happen on a final hearing, but balancing all of those issues, and noting the other provisions which I must consider, I do not see any issues of physical or psychological safety in the mother's household.
10. I do consider there is a risk of psychological injury if Z becomes alienated.
11. I note Z's views as expressed to the expert, but also what the expert says about those.
12. I note that Z has standard developmental, psychological, emotional and cultural needs.
13. I note what the expert said about the mother's general parenting capacity.
14. I am comfortably satisfied that there would be a benefit to Z having a relationship with the mother, and having considered all of those matters, and, in my view, balancing the issues as best I can, I am satisfied that the appropriate orders to make are those fundamentally as proposed by the Independent Children's Lawyer. However, I am going to add the mother's proposed order to the effect that the father is restrained from sending more than one text message to Z when Z is spending time with the mother, and with a copy of the message to be provided to the mother.
15. In respect of the question of costs, as I noted, in the somewhat unusual statement in his affidavit, the father said at [109.5]:

109.5. No matter the outcome of this Application, I seek my costs payable forthwith. I should not have to fund eight (8) interim determinations because the mother is unsatisfied with the orders and seeks to ever so slightly change them whenever it suits her.

1. The submission that even if he loses the Application he should get his costs paid is surprising, to say the least, and again, I will give him the benefit of the doubt, in assuming it is just misconceived because he is not a lawyer.
2. If there is to be a costs order, it will usually be the successful party that receives it.
3. However, it seems to me that the costs involved in this litigation will require careful consideration that can only be undertaken after final determination of what has occurred, and findings made at a final hearing will be relevant to consideration of any interim costs as well.
4. In those circumstances, I will not entertain applications for costs at this stage, but will reserve all parties costs.
5. I confirm the mention date as sought by the father.
6. I am trying and get the matter on when I can, in Z's interests, but at the moment, because it is likely to be a long matter, I just cannot guarantee when that will be.
7. Those are my reasons.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.