Evidence Act 2008 (Vic) s 79

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Galea v Galea (1990) 19 NSWLR 263

Isles v Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lang v The Queen [2023] HCA 29; (2023) 278 CLR 323

Lehrmann v Network Ten Pty Ltd [2024] FCA 369

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Wagstaff v Wagstaff [2022] FedCFamC1A 119; (2022) 65 Fam LR 461

18, 19, 20, 21, 22, 25, 26, 27, 28 November 2024 10, 11, 12, 13, 14 February, 3, 4, 6, 7, 31 March, 1 and 15 April 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. All prior parenting orders in relation to X born 2010 and Y born 2013 ("the children") are discharged.

1. The father have sole parental responsibility and decision-making responsibility about all long-term decisions for the children.
2. Prior to and when making any decision in relation to the long-term decisions for the children the father must -

(a) inform the mother of the decision to be made, in writing on AppClose;

(b) invite input from the mother within seven days of notification of the decision to be made on AppClose;

(c) in making the required decision the father must genuinely take into account the mother's input; and

(d) advise the mother of the decision made on AppClose as soon as practicable.

1. The children shall live with the father commencing forthwith.

1. Upon the making of these orders there will be a sixteen week moratorium during which the children will spend no time with the mother.
2. During the moratorium, all orders relating to time in which the children communicate and spend time with the mother are suspended.
3. During the moratorium while the children are in the care of the father the mother, her servants and/or agents are restrained by injunction from communicating with the children in person, by mail, by way of telephone, text message, any smartphone application, social media or emails.
4. In the event the children contact the mother, her servants and/or agents during the moratorium period, the mother, her servants and/or agents must not respond to such contact or communication and must report such contact or communication to the father via email or AppClose within 24 hours of such contact being made.
5. In the event the children attend upon the mother at her residential address or any other location during the moratorium period, the mother must report such attendance to the father and the mother must do all things necessary to facilitate the return of the children to the father.
6. During the moratorium the mother is restrained from contacting or personally attending upon the children's school during the moratorium.

1. For the purposes of giving effect to these orders -

(a) immediately after delivery of judgment in this proceeding, the mother, her servants and/or agents must leave the court building located at 305 William Street, Melbourne, Victoria 3000 and not return within 500 metres of the court building for a period of 24 hours;

(b) immediately after delivery of judgment, a court child expert after consultation with the independent children's lawyer must explain to the children the orders made this day prior to releasing the children into the care of the father;

(c) immediately after delivery of judgment, the father along with any elected support person or persons must attend upon court child services on level 5 of the court building as directed by a court child expert and follow the instructions of the court staff; and

(d) the father shall collect the children from court child services and for the purposes of changeover a court child expert must be in attendance.

1. Court Child Services have liberty to engage the services of the court's MSS Security to assist in the handover of the children.

1. The mother is hereby restrained by injunction from approaching the children or removing the children from the father's care during the times they are to live with the father except with the prior written consent of the father (which can only occur after the moratorium expires).
2. The mother is at liberty to attend the children's school or any extra-curricular activities in which the children participate in (which can only occur after the moratorium expires) noting this order does not permit the mother from removing the children from such locations while the children are in the father's care.
3. Upon the father filing an affidavit deposing to the mother removing the children or failing to return the children when the children are required to be in the father's care, for a period of 12 months the Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 1) and all officers of the Australian Federal Police and all officers of Victoria Police are authorised to take possession of the children and deliver the children to the father, being the parent with whom the children live with and the parent who has sole parental responsibility for the children and for the purposes of giving effect to these orders at any time and with any assistance the Deputy Marshall and all officers of the Australian Federal Police and Victoria Police are hereby authorised if necessary, to use reasonable force, to stop and search any vehicle, vessel or aircraft and to enter and search the premises of the mother's residential address or any other premises or place in respect of which there is at any time reasonable cause to believe the children may be found.
4. The mother is restrained from enrolling the children in any extracurricular activity without first obtaining the written consent of the father.
5. The parties are restrained from -

(a) doing or saying anything to the children or in their presence or hearing that is derogatory of the other parent or his or her family members;

(b) allowing the children to remain in the presence or hearing of any third party who does or says anything which is derogatory of the other parent or his or her family members;

(c) discussing this or any court proceeding with or in the presence and/or hearing of the children or either of them;

(d) passing messages through the children or either of them; and

(e) involving the children in any form of dispute between the parents or otherwise.

1. Immediately after the children are in the father's care by way of commencement of the moratorium, the father must arrange a designated therapist to counsel the children, with the father also attending if required by the designated therapist and such designated therapist must be selected by Ms B and the therapy must continue for a period of no less than 12 months and the costs shall be met by the father.

1. Upon the expiration of the moratorium, the children must spend supervised time with the mother, such supervision to be undertaken by a suitably qualified professional supervisor as nominated by the father and paid for by the father. Such supervised time is to occur for no more than three hours, once per week on a weekend day at such times as can be accommodated by the supervisor for a period of three months.
2. Following the expiration of three months of supervised time between the mother and the children, the children must spend unsupervised time with the mother as follows -

(a) by telephone communication each Wednesday at 6.00pm for no longer than 30 minutes;

(b) for a period of three months each Saturday from 9.00am to 5.00pm;

(c) following the expiration of the time in order 19(b), for a period of three months each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday;

(d) following the expiration of the time in order 19(c), for a period of three months each alternative weekend from the conclusion of school on Friday until 5.00pm on Sunday;

(e) following the expiration of the time in order 19(d), each alternative weekend from the conclusion of school on Friday until the commencement of school on Monday unless the Monday is a public holiday in which case such time shall extend to before school on Tuesday;

(f) during school holidays the same regime set out in paragraphs 19(a)-(e) hereof shall occur;

(g) on special occasions as agreed between the parties in writing; and

(h) other times as agreed between the parties in writing.

1. All non-school changeovers must take place at a public venue to be nominated by the father, subject to the venue being within a 5km radius of the mother's residential address.

1. The father have sole parental responsibility for all medical decisions in relation to the children and the booking of medical appointments with doctors, specialists and therapists.
2. The father must forthwith change the current medical practitioners, the specialists and therapists of the children in consultation with the designated therapist.
3. The father must advise the mother in a timely manner of any medical practitioners treating the children.
4. Each of the parties are permitted to liaise with any medical practitioners treating the children and obtain documents ordinarily available to parents.
5. Each parent must advise the other of any urgent medical treatment as needed by the children or either of them while in their respective care.
6. If a medical issue arises while the children are in the mother's care, the mother -

(a) must inform the father immediately of the medical issue; and

(b) is permitted to call emergency services or take the child with the medical issue to a doctor or an emergency department and must inform the father immediately.

1. The parents are restrained from changing the enrolment of the children's current schools until the conclusion of the 2026 school year at which time the father has liberty to change the school the children attend if deemed appropriate.
2. The mother is at liberty to contact the children's school to obtain written updates in relation to the children's progress.
3. The mother is at liberty to have full and unrestricted access to any online or electronic communication platform used by any school attended by either of the children.

1. The mother and father must communicate in relation to the children on AppClose, save in the event of an emergency, where such communication be via SMS text message.

Communication when children are not in the other parties' care

1. After the moratorium period and supervised time expires the children be permitted to contact the parent whom they are not in the care of via telephone, SMS text message, FaceTime, Zoom, WhatsApp, Microsoft Teams or any video call at their request no more than once per day and for no longer than 30 minutes and the parent caring for the children must facilitate such communication.

1. The mother is restrained from enrolling the children in any extra-curricular activity without first obtaining written consent from the father.
2. The father is to provide a copy of these orders to the children's schools and to any medical or allied health professionals involved with the children.
3. The parties must notify each other within 24 hours of any changes to their mobile or landline contact telephone numbers, their residential address, email address or the children's mobile telephone numbers.

1. The children's passports are forthwith to be held by the father.
2. After the expiration of the moratorium and supervised time, the mother has liberty to request the father's permission to take the children interstate or overseas during school holidays and the father must genuinely consider the request.
3. The father have permission to take the children interstate and overseas only during school holidays and must -

(a) give a minimum of one month's notice to the mother; and

(b) provide the mother with all relevant details of the holiday, the itinerary and contact telephone numbers.

1. The independent children's lawyer be discharged after 12 months from the date of these orders.

1. On the parties' s 79 application I direct that the further hearing of this proceeding is adjourned to 10.00am on 14 August 2025.

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

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

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

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

1. A litany of parenting cases that come before this court involve high parental conflict, the inability of one parent to cooperate with the other and the lack of insight or disregard into the way that parent's actions and behaviour detrimentally affect the child. Sadly, this case is one of them.
2. These reasons concern parenting issues in relation to two children, X born 2010 ("the daughter") and Y born 2013 ("the son") ("collectively called "the children"). The mother is the applicant and the father is the respondent.

1. To better understand these reasons, it is necessary to record certain formal details of the mother, the father and the children.
2. The mother was born in 1970. She is now 55 years of age.
3. The father was born on in 1971. He is now 54 years of age.
4. The parties commenced cohabitation in 1994.
5. The parties married in 1998.
6. In late 2001 the parties purchased the former matrimonial home situated at and known as C Street Suburb D, Victoria for $340,000.
7. The parties separated on 18 January 2023. The relationship was approximately 29 years in duration.
8. On 18 January 2023 the mother was directed to leave the former matrimonial home as a result of an intervention order obtained by the father. The children remained living with the father during the time the intervention order was operative.
9. On 10 August 2023 the children returned to the mother's care pursuant to consent orders reached between the parties.

1. The daughter is 15 years of age and currently attends E High School.
2. The son is 11 years of age and currently attends F Primary School.
3. Both children have experienced significant disruption in their lives. Those included -

(a) various styles of education including mainstream schooling and home schooling;

(b) various schooling environments;

(c) many different professionals working with the children such as psychologists, medical professionals and support workers; and

(d) each parent absenting himself or herself at various times.

1. The son was diagnosed with autism spectrum disorder in late 2017 when he was aged four. He is now the recipient of NDIS funding and has received professional support from occupational therapists, speech pathologists and psychologists.
2. The daughter has not spent time with the father since December 2023 when she absconded from the father's care. The son has not spent time with the father since mid-2024.

1. In issue in this litigation were several contested applications. They were -

(a) whether one parent or the other should have sole parental responsibility for the children;

(b) whether the children should continue to live with the mother;

(c) alternatively, whether the father's application for a change of residence (supported by the independent children's lawyer) should be granted.

1. The mother said she is the victim of family violence, sexual, emotional, psychological and financial abuse.
2. One of the major issues in this litigation was the mother's mental health and the risk of harm she posed to the children, especially to their emotional and psychological wellbeing by reason of the mother's mental health history and personality traits.
3. The children currently live with the mother and have spent minimal time with the father. The father says the mother has alienated the children from him causing the children to resent the father and become highly distressed at the thought of spending time with the father.
4. Dr G, one of Australia's leading family therapists, gave evidence that the children are at risk of suicide and their outcomes are catastrophically poor.
5. Despite numerous attempts to procure the parties' agreement during the trial of the proceeding so as to end the children's trauma in the looming litigation between the parents, no agreement was reached requiring me to decide the future for the children.

1. It was undisputed that the mother migrated from India when she was aged 15.
2. She holds qualifications in health care. The mother is currently unemployed and has not engaged in any gainful employment since the birth of the parties' daughter.
3. The mother has not re-partnered.
4. The mother contends that the court must accede to her parenting application because no effective alternative exists. The mother's case is for the children to have no contact with the father in the short to medium term whether face-to-face or otherwise.
5. It is the mother's case that she has been the victim of physical, emotional and financial abuse at the hands of the father.
6. She says that as a result of the intervention order taken out by the father in 2023 resulting in the mother being excluded from the former matrimonial home, the children no longer wish to have a relationship with the father and wish to remain living in her care.
7. The mother seeks orders for her to be the primary carer for the children and for the children to remain living with her.
8. On the mother's version of events, the parties had difficulty conceiving. The mother contends she underwent approximately 12 intensive IVF rounds. The mother states that IVF for the parties' second child was rendered more difficult because a complaint was lodged by the Department of Human Services about the mother's apparent lack of support from the husband and inadequate resources to support another child.
9. The mother says that through 2011 and early 2012 she had attended therapy sessions and she commenced six months of intensive psychiatric evaluation with Dr H followed by regular therapy sessions for two years thereafter.
10. While the mother was going through therapy she conceived for a second time.
11. The mother says that during her third trimester when she was pregnant with the son, she decided to seek assistance and support as she was not receiving support from the father and had then lost her paternal grandmother.
12. After the birth of the son, the mother says the son had complications requiring the mother and son to stay in hospital for four weeks.
13. Upon returning to the former matrimonial home the mother says she continued to do most of the cooking, cleaning and laundry.
14. The father took out an intervention order against the mother in early 2023 on the basis that her poor mental health posed an unacceptable risk to the children. The mother denied that allegation.
15. It is the mother's case that the intervention order took her by surprise and that in the weeks following her removal from the former matrimonial home, the mother slept in a car, stayed in crisis accommodation sourced through the NDIS and lodged at her father's house.

1. The father was employed as a professional by J Company for a little over 22 years. The father's employment ended in late 2023. He is currently engaged in casual employment only.
2. The father said that none of the allegations put against him were proved.
3. The father's case is the mother has lied under oath, there have been numerous inconsistences in her case and where there is doubt, the father's version of events should be preferred.
4. The father's case is the mother suffers from serious mental health issues and her parenting is having a profound effect on the mental health of the children.
5. It is the father's case that the mother has had long-standing mental health issues throughout their relationship.
6. The father contends that he took out an IVO against the mother as she posed an unacceptable risk to the children and the IVO was required so as to prevent the children from further harm.

1. The daughter has not spent time with the father since December 2023 when she absconded from the father's care. The son has not spent time with the father since mid-2024.
2. Both children currently live with the mother.
3. The father lives at the former matrimonial home.

1. The mother commenced this proceeding on 2 March 2023.
2. A family report was conducted by psychologist Ms B on 30 March 2023.
3. On 10 August 2023 the children returned to the care of the mother pursuant to consent orders.
4. In late 2023 the parties agreed to final intervention orders.
5. On 9 October 2023 the parties attended a mediation and reached an in-principal agreement pending procedural fairness being afforded to the trustee of the superannuation fund.
6. In December 2023 X absconded from the father's care.
7. In late 2024 the husband made an application for an extension of the family violence intervention order.
8. In October 2024 the parties participated in an intake session for K Counselling Program.
9. In late 2024 the wife's application for a family violence intervention order with the husband's application for extension of the family violence intervention order was resolved by consent.

1. I now turn to the respective parties' cross-examination.

MATTER ARISING FROM THE MOTHER'S CROSS-EXAMINATION

1. This case required me to closely evaluate the mother's ability to care for the children given her mental fabric. Mr Potter asked me to focus particularly on the following matters which he said illustrate how the mother poses an unacceptable risk to the children. They were -

(a) the mother's inability to adequately care for herself;

(b) the failure of the mother to obey court orders and stipulations about medication; and

(c) the failure of the mother to act in the best interests of the children.

1. The mother was in the witness box for 10 days. The more important matters arising from her cross-examination are set out below.

The mother's inability to adequately care for herself

1. Mr Potter cross-examined the mother to the effect that on numerous occasions the mother was unable to take her medication consistently, and at some stages at all, which included ceasing pharmacological treatment without consulting a psychologist.[1] When questioned under cross-examination the mother admitted to stopping medication without consulting a psychiatrist.[2] The mother had previously lied to Dr L and Ms M about the amount and frequency of the medication she was taking.[3]
2. The mother admitted to being unable to ensure that her home was uncluttered. She admitted she had a problem with hoarding.[4]

1. A large portion of the mother's cross-examination was devoted to demonstrating that she possessed theories (described as "conspiracy theories") preventing her from promoting the best interests of the children. Under the section of these reasons devoted to an examination of the evidence of Ms M, the specific behaviour called "conspiracy theories" has been set out.
2. The mother conceded in cross-examination that she read information about certain things then proceeded on the truth of that information.[5]
3. The mother elected to not vaccinate the children.
4. The mother withdrew the children from school and instead elected for them to be homeschooled because she did not want the children associating with children vaccinated against COVID.

1. The mother was cross-examined to the effect that she breached several orders including a court order not to contact the children,[6] a court order to attend the K Counselling Program,[7] a court order not to change schools[8] and orders given by doctors regarding the frequency with which medication was to be taken.[9] Her reasons as to her failure to comply with orders were unsatisfactory, in my view.
2. When experiencing ailments, the mother agreed that she turned to the internet for remedies rather than seeking the advice of a doctor.[10]
3. The mother agreed that she showed concerning financial habits, opting to spend money on substances found on the internet,[11] collectibles,[12] bullion[13] and trying to save money on printing costs regarding the documents brought to the school principal.[14]
4. The mother gave discussive rambling and incoherent evidence at times, leading to rebuke from counsel for the father. The mother admitted the following when under cross-examination -

"MR POTTER: I put to you about she was experiencing stress as a result of remote learning, and you said no. I've then read out paragraph 182, where you say she was experiencing stress as a result of remote learning. So when you said no, that was a lie wasn't it?‑‑‑Yes.

And you are sitting here in a court of law, having sworn an oath to tell the truth, the whole truth, and nothing but the truth, and you are prepared to lie to this court because you know the consequences of telling the truth, don't you?‑‑‑I'm sorry that I lied to the court."[15] (sic)

1. The mother also failed to obey orders to be truthful with her treating professional Dr L, a psychiatrist who met with both parents. The mother admitted she did not disclose to Dr L that she did not take her medication regularly.[16]
2. Mr Potter cross-examined the mother on her conduct when the intervention order was operative. The mother stated that she was raised to obey rules[17] yet in breach of the intervention order she sent some 400 text messages to the daughter.[18]

Failure of the mother to act in the best interests of the children

1. It was put to the mother that she failed to act in the best interests of the children.
2. Specifically, it was put to her that upon the mother being informed by the son that he had been abused by a teacher at school the mother admitted she failed to adequately follow up the complaint with the relevant authorities.[19]
3. The mother during cross-examination admitted that even though it was not best practice, she continued to arrange for the children to see multiple psychologists concurrently.[20]
4. Despite the mother's denial of the allegation, the evidence also revealed that the mother did not allow the children to socialise with vaccinated friends.[21]
5. The mother administered zeolite to the son, a substance purchased from the internet to treat his autism[22] and purchased another substance on the internet. That was admitted by the mother.[23] The mother did not explain why she purchased zeolite at all for consumption by the son, especially in circumstances where the son was being treated with prescription substances according to the directions of the son's medical practitioners.
6. It was put to the mother in cross-examination that the mother chose to take the children to the BB Show rather than attending a scheduled K Counselling Program appointment.[24] The mother was unable to explain the reason for her opting to take the children to the BB Show rather than to the K Counselling Program appointment.[25]
7. It was put to the mother that the children are in a psychological crisis.[26] That crisis was exhibited by the daughter -

(a) experiencing gut issues and pain due to stress while in the mother's care;[27] and

(b) engaging in self-harm while in the mother's care.[28]

1. The mother after the daughter's self-harm episode was advised by the O Therapeutic Program to remove scissors in her household. When cross-examined on this the mother was unable to recall if she had in fact removed the scissors.[29]
2. It was also put that the mother prevented the children's social interactions due to her own fears. For example, Mr Potter put to the mother that she requested the school's permission for the children to stay home for two months due to concerns about the COVID-19 vaccine,[30] a request made despite the fact that remote learning caused stress for the daughter, with the mother admitting she lied in her affidavit that remote learning was not causing the daughter stress.[31]
3. The mother was asked about her failure to give the daughter her medication which included antidepressants when they had been prescribed to her and how the mother failed to advise the father of the medication prescribed.[32] The mother conceded that she did not fill the script for the daughter's medication.[33]
4. The mother was asked about her failure to ensure that the son attended his appointment with Mr N (the son's psychologist) and instead asked her aunt to accompany her to her solicitor's office.[34] The mother was unable to give adequate reasons why she failed to take the son to his appointment with Mr N on that occasion.
5. The mother was challenged to the effect that she was unable to put aside her trauma for the benefit of the children as her "anxiety is a real obstacle to parental communication" as demonstrated when she was unable to face the father even with the support of the K Counselling Program coordinators.[35] In response the mother said she was unable to participate in K Counselling Program because of the trauma she had experienced.[36]

1. Counsel for the father cross-examined the mother on the allegation that she had poisoned the minds of the children against the father. Details included -

(a) the mother spoke and allowed others to speak negatively of the father in the presence of the children;[37]

(b) the mother failed to encourage the children to go to their father at changeover;[38] and

(c) the mother failed to take the children to see their paternal grandparents.[39]

1. The mother in response was unable to say what steps she had taken to encourage a relationship between the father and the children, responding instead that she wanted the father and children to have a relationship with one another. I found that response unsatisfactory.
2. Mr Potter also put to the mother that she would subject the children to sub-optimal living standards such as putting the children into a one-bedroom flat so they developed a perception that the father forced them to live in such a way.[40] The mother denied that allegation.
3. Mr Potter put to the mother that she was unwilling to prevent the alienation[41] to which she responded stating it was important for the children to have a relationship with the father.
4. In relation to influencing the children's minds, it was put that the mother failed to assure the daughter that she would be safe with the father and instead told the daughter that she could do what she needs to do to feel safe and could ask to return to the mother's care,[42] a message sent from the mother to the daughter by text message while the daughter was in the father's care. The mother in response agreed that during her communication with the daughter during that time she said nothing that promoted the relationship between the father and the daughter and she did not reassure the daughter that she was perfectly safe with the father.[43]
5. It was also put that the daughter while in the care of the mother continued to hold increasingly negative views about the father[44] to which the mother agreed.[45]

1. The mother during the course of giving evidence also displayed an inability to recall events, often changing her recollection of events. When cross-examined the mother changed her version of events that occurred in late 2024 when the mother and father had attended the son's school play. On one version the mother said she decided to greet the father. On the second version the mother said she apologised to the father for the children running away. Then the mother changed her evidence on a third version and said her brother was blocking the way and the mother had to confront her abuser.[46]

1. Mr Potter cross-examined the mother about her allegations of sexual abuse at the hands of the father. In her evidence, the mother said the father raped her once in 2017 and once in 2018.[47] The mother said she was lying on her side with her back to the father. The mother stated that the father said "you want to" to which the mother said "no" several times while attempting to push the father away. The mother in her affidavit said the father started to undo her bra from the back. The mother said the father then pushed the mother onto her back, sat on top of her and tried to get her clothes off. The mother stated the father said "I know you don't want this but that is beside the point." The mother then said in her affidavit she stopped fighting as she felt that she had no choice and that it was going to happen no matter what. Mr Potter said the mother had told her doctor, Dr Q at P Health Centre, a different version to her evidence. The version the mother told her doctor was that the father came in, there was a conversation and the father got into bed. When asked about the inconsistencies the mother responded saying that there were two rapes and she was unsure what rape went that way.[48]
2. Mr Werner in final address submitted that the evidence before the court is incapable of proving either of the mother's rape allegations to the requisite standard.

1. The mother acknowledged she has never seen the father raise a hand towards the daughter.[49]
2. The mother also conceded that she never saw any bruising on the son.[50] However, there was only one occasion where the mother could point to the father physically assaulting the son with a slap to the face. The father denied that allegation.
3. Mr Werner in final addresses conceded that there was insufficient evidence to enable the court to make any finding to the requisite standard that the father poses an unacceptable risk of harm to the children.
4. The mother named several witnesses who she claimed could support her version of events that she was emotionally abused by the father. However, no such witnesses gave viva voce evidence which led me to conclude that those persons would not have assisted the mother's case.[51]
5. The mother alleged she was financially abused by the father. That was not borne out by the evidence. The evidence revealed the mother wanted to purchase bullion notwithstanding her complaint that the parties had little money. Nevertheless, the mother was able to gather $10,000 and asked the father to buy her the bullion.[52]
6. The mother contended that the father hid her mail and she did not get bank statements. The mother conceded that she was home during the day when the mail was delivered.[53] The mother's complaint on that issue was difficult to follow. She conceded being at home when the mail was delivered and capable of retrieving the mail, yet at the same time she positively asserted that the father actively hid mail intended for the mother. There was no evidence that the mother was pursued in respect of mail not answered.
7. The parties purchased a property at R Street in Suburb S for the mother's parents. The mother conceded that despite the father working as the family breadwinner he worked on that property as the mother said the parents would purchase the property from the parties if work was done on the property.[54]
8. Despite the mother alleging that she was financially abused by the father the mother accepted that she was happy for the father to manage their finances during the relationship.[55]

MATTERS ARISING FROM THE FATHER'S CROSS-EXAMINATION

1. The father was in the witness box for four days. The more important matters arising out of the father's cross-examination are set out below.

1. In early 2023 the father obtained an intervention order against the mother, the terms of which provided that the mother could no longer live at the former matrimonial home. During cross-examination it was revealed that the father did not offer the mother the former matrimonial home.
2. The father when cross-examined by Mr Werner of counsel for the mother accepted that the aftermath of the intervention order did not work out (Mr Werner's words) the way the father envisaged.[56] However, the father said that applying for the intervention order was not a mistake but was the necessary thing to do.[57] The father admitted in cross-examination that prior to the intervention order the children were both functional[58] and now they are not doing well.[59]

1. The father admitted that he takes responsibility for what happened to the children. That was relevant to his insight. He gave evidence in the following exchange with Mr Werner -

"Do you feel like you need to shoulder any responsibility for what has happened to your children?‑‑‑Of course.

Why is that?‑‑‑Because they're my children. So all actions from either parent are questionable and - or reviewable in that context.

I'm talking about your actions. Do you feel that there's any aspect of your actions that might causally be related to the unfortunate position your children are in right now?‑‑‑There would be one action that I would undo if I could, but I can't.

Tell me that one?‑‑‑And that would be discussing one aspect of the case with [X] at one point in time, which was after the first family report.

After the first family report?‑‑‑Yes.

But otherwise, you would presumably say the unfortunate state that your children are in right now is all Mum's fault?‑‑‑I would not say it's all her fault. I think there has been a great deal of time lost in this process that didn't need to be. And I think time is a large factor in their current state."[60]

1. The evidence also revealed the father discussed this litigation with the children. In response to cross-examination by counsel for the ICL the father said -

"Well, it seems pretty straightforward, doesn't it, that you're not allowed to talk about the case with your children, and yet you did?‑‑‑It is straightforward and I did, yes.

Okay. Thank you.

MR BAUME: Can you accept now, that that wasn't in the best interest of [X]?‑‑‑It was a terrible idea, yes."[61]

1. Mr Werner during his cross-examination of the father raised that Ms T's report revealed that the children reject the father as their father and as a carer. The father admitted that was the case when the report was written.[62]
2. The father seemed to be fully aware of how the children feel about him. He accepted that the children's mental health deteriorated since the mother was asked to leave the former matrimonial home. The father said the following on point -

"Since the time the mother was asked to leave the home in 2023, in January, their mental health - well, maybe not immediately, but their mental health did deteriorate, yes? You don't disagree with that?‑‑‑I don't disagree.

You disagree or you don't disagree?‑‑‑I do not disagree.

Yes. So you agree with my proposition?‑‑‑I do agree."[63]

1. The father also acknowledged and accepted the children's position that they do not want to live with him. That provided a measure of insight. He said the following -

You know that the children have expressed to a variety of therapists that they don't want to go back to live with you at this time, correct?‑‑‑Yes, correct.

And your application is that you want the children to be in your care, but you want the court to make an order for them to live with you at least for a period of up to six months, as a moratorium - no contact with Mum. That's your position. That's right?‑‑‑Yes.

I won't take you through your applications, but that's the general gist, and we've heard evidence yesterday that it has already been put to you, this question. So you accept overall that up to now - right now, the children are fragile and they are vulnerable?‑‑‑Yes, they are."[64]

1. The father when cross-examined accepted that the children wish to stay in the care of the mother despite the negative influence the mother has had on the children. The father said the following -

"You've now discovered that. And now, it's not just - you may well argue, and it may well be the case that Mum may have had a negative influence on the children, and she says - or she might say, that she denies - but she says to them, well, you know, don't go see Dad, he's a bad person, just don't go there. But at the end of the day, they want to stay with Mum, that's their position, and that's the final position. In fact, it's repeated to the department last year - this is not a court expert, this is just an outside agency - they keep saying the same thing. You know that, you accept that. Yes?‑‑‑Yes."[65]

1. The father's position was that the mother poses a grave risk to the children.[66]
2. In cross-examination the father said he sought the intervention order because the mother's mental health difficulties rose to new heights and therefore she was a risk to the children because of the escalation of her mental health.[67]
3. Mr Werner of counsel for the mother questioned the father on how the mother's conspiracy theories affected the children. The father said that the mother held strong conspiracy theories and beliefs about the origin of the COVID-19 virus.[68]
4. The father was questioned about the mother's medication and hoarding and the risk those issues presented to the children. He said the following -

"In the home. And you agree ..... not a medical practitioner, but it would be common knowledge, wouldn't you accept, that if the children were to access one of these boxes ..... it would have been potentially lethal?‑‑‑Yes. That goes for those ones as well as any of the non-prescription items as well. Yes.

That's right. Now, were you aware where she stored those medications?‑‑‑The ones I was aware of were in the table next - sorry, in the bedside chest of drawers next to the bed.

And was it locked?‑‑‑No.

Did the children have access to that chest of drawer?‑‑‑Yes, they could have.

Did - well, did they know she stored her medications there?‑‑‑They might have. I don't believe they would have.

But they had access - her bedroom wasn't locked - whichever bedroom she used at the time, because apparently ‑ ‑ ‑?‑‑‑Yes, they did. Well, it was capable of being locked, but - sorry, at different points in time, but it wasn't generally locked.

Did you ever tell the mother that these were potential risks for the children, especially [Y], that he could just go into one of those drawers and take the pills out and start eating them?‑‑‑No, I don't think we had that conversation.

In retrospect do you think it should be something you had addressed with the mother if she hadn't addressed it?‑‑‑Most certainly."[69]

1. When learning that the father had not discussed with the mother the need to keep medication under lock and key, I questioned the father on why he did not consider that access to medications was a risk to the children. He said the following -

"Why didn't you do something yourself about it?‑‑‑Well, it was only a few boxes and just the kids had no - showed no interest in that sort of behaviour in terms of ‑ ‑ ‑

So although it's a risk, you made an assessment of the magnitude of risk and regarded it as being small. Is that it?‑‑‑I don't think I did an assessment in that sense.

You didn't turn your mind to the risk at all?‑‑‑No. It didn't stand out as a risk."[70]

1. The father's evidence was that there was no rape perpetrated by him on the mother. He said -

"She reports an incident [in] May 2017 specifically. Do you have any recollection of May 2017?‑‑‑Not in any terms related to that incident. No, I don't.

Well, is it possible that there was a point in May 2017 when you were sleeping in separate bedrooms?‑‑‑It's possible.

She reports that on an occasion when you were in separate bedrooms, the lights were out and [Mr Levitt] entered the bedroom, and she said to you, "What are you doing", and that you were going to lay beside her. Do you recall any night where you entered a separate room where your wife was and made your way into her bed?‑‑‑No.

You say it never happened?‑‑‑It never happened.

She stated she turned away from you onto her side with her back to you, and you said to her, "you want to". What do you say to that---It never happened.

On this particular occasion, she said "no" several times and tried to push you away?‑‑‑Never happened."[71]

1. Mr Werner conceded there was no evidence to support the mother's allegations that the father raped her. Mr Werner conceded that there was insufficient evidence to enable the court to make any finding to the requisite standard[72] that the father raped the mother on the occasions alleged.

1. I put to the father (and Mr Werner also asked) how workable his proposed orders would actually be. He said -

"Well, going forward, which is what I've got to project in this case, how do you see things changing?---With the help of a lot of therapy.

Well, they may not want to go, and as children advance through their teenage years in particular, they become much more strident in their views, often from the age of 14, and when they get to 17, it's almost impossible to change their views, howsoever wrongheaded you might think it is, and what I'm asking you is how do you see that working?---Through a lot of rational discussion and - - -

But they're pretty poisoned at the moment against you - - -?---Yes, they are.

- - - it's fair to say?---Yes.

So at some stage, we have to confront the reality of the orders that you're seeking, and that's one of them, so while we're at this break in the play, would you mind explaining your thinking on that?---My thinking is it will need - it will be difficult and it will need expert advice and help to achieve it.

But even if you get that, it's conceivable that you won't achieve it?---It is conceivable. It's frightening in that - in that space, frightening to me, at least, that that is a prospect, but it is a prospect.

Okay. Thank you.

MR WERNER: To his Honour's point, how are you even going to get them in the same room as you?---With the assistance of the court, with the assistance of some - some clear explanations to the children, hopefully provided by somebody that is really skilled, like a child psychologist or something like that.

Let's pretend for a moment that the meeting is going to take place in this very courtroom. The children are presently at home living with their mother. How are you going to get them there - how are you going to get them here, right here, where I stand?---Through whatever it takes. I mean - - -

Be more specific, please?---And a court order for [Ms Todorov] to bring them here would be one method.

Suppose she doesn't?---Then there would need to be an enforcement for that.

Who's going to enforce it?---This court.

Who's going to be responsible for physically getting the children from their current residence to sit in this chair?---My understanding is that would be a recovery order, and it would be - - -

Yes?--- - - - effected by the Federal Police - - -

Okay?--- - - - if it got to that point.

If it got to that point, Federal Police will do it?---It has been discussed previously. Yes.

Okay. And they sit and listen, and they refuse to talk to you?---This is - - -

Sooner or later, the court is going to have to close the doors and go home for the night. Then what?---This is where we need advice of experts that are experts in dealing with children in distress.

It's as simple as the right person telling them the score, and they're just going to do as they're told. Is that it?---I don't know yet.

Isn't that a problem?---It's a concern.

It's a big fat problem, isn't it?---Of course it is.

This is your application, and you're trying to persuade his Honour that this is workable in the real world?---I do believe it is workable with these children."[73]

1. At a later stage during the father's cross-examination I questioned the father further on the making of the orders he proposed. He said -

"That's the point. Your entire thesis in all of this is predicated on a great unknown. And it is predicated on the success of something that you recognise is already forlorn with doom. Isn't that right?---Yes.

Help me, please. What do you ask me to do, recognising all of those vagaries?---There will need to be, initially, a lot of intense therapy with particularly [X] and myself.

Yes?---The same with [Y], although I do think [Y] is far more amenable to these sorts of outcomes. [X] will need to understand that returning to her mother is not an option. I think that needs to be made clear to her, at least in the short term. But the ultimate aim will be to have both of us in their lives, and I need that to come through in the - in the intense therapy that will need to be pretty much immediately underway.

But of course, in giving that answer, you recognise that they're fairly strong-minded people and they have already formed certain views, so the success or otherwise of what you're telling me is very far from assured?---I do believe their views - whilst I agree they are strongly founded at the moment - I do believe they're not based on their own experience. And that they need to be - through the therapy process, they need to be reminded of the way things were, and their - their more fun times with me previously.[74]

1. The father strongly believes the moratorium period will work. The father has demonstrated that in order to facilitate such a change he will ensure the children have the requisite therapeutic assistance as recommended by the experts.

1. It was evident that the mother suffered from trauma and mental health issues and she alienated the children from the father.
2. The mother has engaged in behaviour that poses a risk to the emotional, psychological and physical wellbeing of the children. The mother's evidence highlights serious deficiencies in the mother's decision-making ability when it comes to the children. I am of the view that the mother is unable to emotionally care for the children and act in their best interests because of her psychological state. Particulars of her inadequacies are set out later in these reasons under medical evidence.
3. The mother's case points to the serious deficiencies in her decision-making abilities concerning the children, her inability to parent and her inability to be there for the children and care for them in a way that does not instil in them fear of the outside world.
4. Having heard the mother in the witness box and upon forming my own assessment of her[75] I entertain very real misgivings that she will ever encourage a relationship with the father.
5. The mother's alienation of the father is telling of her inability to put the children's best interests first over her personal issues with the father. Despite the mother during the course of the trial stating that she believes the children need to have a relationship with the father, I am not convinced that she was being truthful. Instead, I took the view that she was telling me what she thought I wanted to hear. The evidence demonstrated that the mother made considerable attempts to alienate the children from the father.
6. My assessment is the children reject the idea of living with the father predominantly due to the behaviour of the mother. It is of great significance to me that the mother has shown an inability to foster a relationship between the children and the father. The mother's attitude towards the father is apparent. She seriously dislikes him.
7. The mother has empowered the children to refuse to spend time with the father, portraying to the children that they are better off living with her.
8. The mother was not faithful to her duty to tell the truth, the whole truth and nothing but the truth. During the trial of this proceeding I became concerned that the mother was or may be falling short in her duty to tell the truth, the whole truth and nothing but the truth about which the High Court stressed the importance in Kuhl v Zurich Financial Services Australia Ltd.[76] I carefully scrutinised the mother's evidence in the overall to ensure her version of events was exhaustive and accurate. It was plain to me that the mother was driven to criticising the father any way she thought appropriate.
9. My overall assessment of the father is that he poses no risk to the children. However, I have considered the psychological effects the children are likely to face if a change of residence order is made. As addressed later in these reasons, I am of the view the risk of harm to the children in the mother's care outweighs the risk of harm the children may face in the father's care.
10. The father acknowledged that his taking out the intervention order essentially backfired. I agree that the intervention order has contributed to the children rejecting the father as their father and as a carer. However, I am of the view the father is able to acknowledge his past wrongdoings, learn from them and is more child-focused than the mother.

1. A considerable volume of medical evidence was adduced in the trial of this proceeding directed in large measure to the mother's mental fabric. Other medical evidence was directed to the children's emotional circumstances. In the passages that follow, I have endeavoured to record the more important matters that arose from reports of psychologists, psychiatrists and other health professionals.
2. A prominent clinical psychologist, Dr G gave evidence in this proceeding to the effect that the prognosis for the children is "catastrophically poor"[77] unless the parents immediately and unreservedly focus on cooperative parenting. Dr G said that the future of the children might be beyond redemption,[78] even now, unless the mother and father cease their hostilities towards one another effective forthwith. He said the children are at high risk of permanent mental health damage, drug and alcohol abuse and even suicide.
3. During the running of the trial, the adversarial process was relaxed temporarily on several occasions where I gave the parties opportunities to reach settlement. Each endeavour was unsuccessful. The trial ran for 21 days. Its original estimated duration was 10 days.
4. Dr G gave evidence that in cases similar to this, the children's future can only be salvaged by a fundamental and profound attitude shift by the parents. He said that in this case the parents need to deliberately move forward from their existing state of hostility towards one another, putting their own versions of historical incidents to one side with a view to finding a way that enables each to cooperatively parent and in so doing retrieve the children from their existing mental distress. Dr G warned in unmistakable terms that the window of opportunity to arrest the downward spiral into which the children are fast falling will very soon close irretrievably unless the parents abandon their hatred for one another and focus on the welfare of the children.
5. For the reasons that appear below I have formulated a set of orders that achieves a collection of imperatives. Those include orders that -

(a) represent measures that are in the best interests of the children;

(b) as near as possible protect the children from further psychological harm;

(c) assist to reduce or eradicate the cause of the psychological harm the children currently suffer; and

(d) promote a beneficial relationship between each child and each parent.

1. The orders recorded at the commencement of these reasons represent in my view orders that best achieve those imperatives.
2. Whether the children actually return to having favourable mental health is impossible to predict. Achieving any such success is largely out of my hands.
3. For the reasons that follow I am of the view that orders should be made to place the children in the father's care as the children are at very significant risk of emotional and psychological harm while in the mother's care.
4. I now consider the expert witnesses who made reports and were witnesses in this case.

1. Dr H provided a letter addressed 'to whom it may concern' dated 10 June 2015. At the time the children were four years of age and in infancy. Dr H reported that the mother suffered from long standing major depression exacerbated by the birth of the parties' daughter. Dr H reported that the mother was under the care of a psychiatrist as her depression impacted her capacity to care for the children both practically and emotionally.
2. Dr H did not give viva voce evidence.

1. Dr U provided a letter of referral to a Child First intake worker on 28 June 2018. As a reason for the referral, Dr U reported that the mother first consulted Dr U in November 2017 when she was encountering difficulty parenting on multiple occasions. Dr U said that the mother's mental health was deteriorating which was having an impact on the children's overall wellbeing.
2. Dr U did not give viva voce evidence.

1. Dr V, a consultant psychiatrist, provided a report to Dr W dated 21 April 2018.
2. Dr W had referred the mother to Dr V for opinion and management of anxiety, depression and post-traumatic stress disorder. Dr V reported that the mother presented with a seven-year history[79] of persistent depressive symptoms that had worsened in 2016 by reason of conflict and stress. Dr V reported that the mother had a history of overdoses and two hospitalisations. Dr V stated that the mother's history included a fear of heights and closed spaces, trauma-related thoughts, flashbacks, nightmares and low frustration tolerance in the setting of past sexual trauma. However, Dr V said there was no history of mania or psychosis. He said a genetic vulnerability presented itself. He said the mother had grown up in an impoverished environment and had witnessed verbal abuse by her father towards her mother. The doctor reported that the mother tended to have low self-worth and a long-standing sense of being lonely. Dr V was of the view that the mother had a persistent depressive disorder in the form of partially improved chronic depression. He said the mother has claustrophobia, specific phobia and PTSD.
3. On 16 June 2018 Dr V provided a further report to Dr W in which it was reported that the mother presented with ongoing depressive and anxiety symptoms. The doctor reported that the mother presented with an anxious and depressed mood, partially reactive, alongside mild flatness, chronic poor self-worth and hope in life, no suicidal thoughts and low energy.
4. On 21 July 2018 Dr V provided a further report to Dr W. The report was largely consistent with the doctor's 16 June 2018 report.
5. On 16 August 2018 Dr V reported to Dr W that the mother had been seen again presenting with persistent depressive and anxiety symptoms, with infrequent suicidal thoughts, an anxious and depressed mood, reactive effects and poor chronic self-worth.
6. Dr V did not give viva voce evidence.

1. Dr Z prepared a report dated 14 August 2019 in which he reported that the mother had suffered from depression for most of her adult life, worsening over three years since 2016. Dr Z stated that the mother's depression symptoms included anhedonia, frequent crying, hopelessness, helplessness, anxiety, constant tension, hypervigilance, intrusive thoughts of past events, nightmares and fleeting suicide ideas. Dr Z reported that the mother said the father had been emotionally and financially abusive towards her. Dr Z's history included how the mother migrated to Australia from India as a 15-year-old and that her father physically and verbally abused the mother's own mother. Dr Z reported that the mother entered university to study where she met the father. Dr Z's history included references to three hospital admissions of the mother by reason of mental health concerns. Dr Z's diagnosis was to the effect that the mother's mood was said to be rated two out of ten (with ten being happy) and that the mother's thinking pattern was characterised as feeling helpless and hopeless although with no suicidal or homicidal thoughts. Dr Z diagnosed the mother as posing a low suicide risk or risk of self-harm, harm to others or substance abuse and that she was vulnerable having regard to her current psychological stressors and her then current mental state.
2. Dr Z said the mother suffered from major depression disorder, possible post-traumatic stress disorder and dependent personality traits.
3. Dr Z did not give viva voce evidence.

1. Notes prepared on DD Hospital letterhead dated 20 February 2018 and signed by Ms AA went into evidence as exhibit 5, page six of which recorded that the mother had a fear of the telephone, she will not answer calls, she finds reading mail overwhelming, she finds it very difficult to undertake parenting responsibilities, she has chronic passive suicide ideation and she has difficulty regulating her mood, emotions and emotional responses. Ms AA did not give viva voce evidence.

1. Several reports of Ms B went into evidence. She also gave viva voce evidence and was cross-examined.
2. In her report dated 30 March 2023[80] Ms B addressed, among other things, the mother's mental health. Ms B observed that neither parent presented with features suggestive of poor mental health, although she identified that her main focus was the ascertainment of the mental health of the children. Ms B recommended that a psychiatric assessment be undertaken along with a full family report.
3. Ms B provided a further report dated 17 July 2023. In it she described her 30 March 2023 report as a "short form child impact report". That description corresponded with my assessment of the brevity of her 30 March 2023 report. In her 17 July 2023 report Ms B postulated various theories premised on her assessment at paragraph 145 that "this is a very difficult matter" to which she added recommendations based on whether I found that the mother posed a risk to the children. I did not regard Ms B's 17 July 2023 report as being particularly detailed.
4. Ms B prepared an updated family report on 4 March 2024. In preparing that report she conferred with both children and parents. The more significant issues that arose from that report were the following -

(a) Ms B said that the relationship between the father and the daughter had deteriorated;

(b) each parent continued to make very serious allegations against the other;

(c) Ms B reported that this was an extremely serious case of parental alienation by the mother as well as a case of neglect by the father of the children while they were in his care;

(d) Ms B said the father was extremely disappointed that the son told lies about the father when the child was in his care;

(e) the father identified the importance of the relationship between the children and that the father did not want to damage that relationship;

(f) the son told Ms B that he was forced to cook his own meals and that the father made sure the son did not run away;

(g) both children attended the interview with Ms B carrying a notebook from which they read notes of things they wanted to tell Ms B;

(h) both children still present with fear of their father saying he will be physically abusive towards them;

(i) the father denied any physical abuse had taken place at changeover;

(j) the daughter is aligned with the mother and she was unable to identify anything the mother could do better; and

(k) the father presented as being completely exhausted by the entire process and was devastated by the allegations of sexual assault made against him by the mother.

1. By way of recommendation, Ms B in her 4 March 2024 report stated that it was clear that the children were under stress due to their parents' separation. She offered recommendations based on whether a finding was made, founded in the father's version of events, that the mother had alienated the children in which case Ms B recommended the immediate removal of the children from the mother's care so as to live with the father.
2. Ms B was cross-examined. Among the more important matters that emerged from her cross-examination were the following -

(a) if the court found that there was family violence of the kind described by the mother, the outcome should be no contact with the father whereas if the court found that there was serious parental alienation then there should be a change of residence with no contact with the mother;[81]

(b) if the children were removed from their mother's care and placed in the care of their father, the reaction by the children would be unknown;[82]

(c) the only other option available to the court would be to make an order that the children spend time with both parents and this would require the support of both parents in facilitating the children going between two households;[83]

(d) it would be beneficial for the mother to engage in dialectical behavioural therapy ("DBT") for the borderline personality disorder diagnosed by Dr L which requires compliance and a willingness to participate in such treatment and it was unclear whether the mother would attend;[84]

(e) as a result of the mother's borderline personality disorder diagnosed by Dr L, the mother is unable to be child focused;[85]

(f) if the mother decides not to engage in K Counselling Program or in DBT, there will be no change in her opinion and consequently no change in the attitudes of the children towards their father rendering it very difficult for the children to spend any time with the father without running away;[86]

(g) in situations where children state that they are very resistant to staying with one parent, they sometimes do;[87]

(h) this situation calls for a decision between which scenario is the best case for the children, either to remain living with the mother and not spend time with the father (possibly resulting in relationship issues, drug and alcohol dependence, possible suicide and co-dependency with the mother) or the possible psychological damage which may occur if the children were to stay with the father or run away from him;[88]

(i) there was not enough evidence in the interview process for Ms B to conclude that the son had experienced the harm at the hands of the father that he had reported;[89]

(j) the mother does not promote a relationship between the children and their father and that on the evidence before the court, for instance her refusal to participate in K Counselling Program, she will not promote that relationship in the future;[90]

(k) the daughter's enmeshment with the mother has caused an us against dad approach;[91]

(l) the daughter's attendance at the interview with a notebook raised concerns that there may have been discussions within the household to prepare the notes;[92]

(m) in similar cases such as this one on which Ms B had worked, a moratorium period with no time to be spent with the mother was successful due to the children's motivation to see the mother after the moratorium period concluded;[93]

(n) the best option for the children is that they are placed in the care of their father whilst the mother engages in therapy and the children's relationship is rebuilt with the father;[94] and

(o) in relation to the required duration of a moratorium period, in a case as severe as this, acceptance would only begin to occur three months after its commencement and therefore Ms B recommended a moratorium period of between three to six months.[95]

1. Dr L provided a report dated 9 June 2023 in respect of both parents and he gave viva voce evidence. Having regard to his very considerable study, experience and training I find that Dr L was undeniably an extremely highly qualified expert for the purposes of s 79 of the Evidence Act, his field being consultant psychiatry.
2. In his 9 June 2023 report, Dr L expressed views in relation to the mother. The more important matters recorded by Dr L in respect of the mother included the following -

(a) as at the date of the report the mother was homeless, staying mostly at her father's or aunt's home or in a car;

(b) as a child she witnessed her father being emotionally and physically abusive towards her mother;

(c) she was subjected to sexual assault by a person outside her family at age 12 until she left India;

(d) she was bullied at primary school;

(e) after completing tertiary qualifications she worked for five employers over an eight year period in New South Wales;

(f) from 22 years of age (she being 52 years of age when Dr L interviewed her for his report dated 9 June 2023) the mother had been diagnosed for long standing depressive symptoms but had only been treated for less than a year;

(g) when she was 25 years of age she was admitted to BB Hospital and treated with the anti-depressant fluoxetine;

(h) when aged either 23 or 25 the mother overdosed on headache tablets;

(i) when aged in her late twenties she overdosed again, on that occasion on a combination of medications;

(j) after giving birth to her first child the mother became increasingly depressed, fearful, atopic and sleep deprived;

(k) she was diagnosed with major depressive disorder, recurrent severe episodes in the post-natal period and dependent personality traits;

(l) the mother told Dr L that she had problems with hoarding and she had difficulty throwing things out;

(m) the mother told Dr L that she refused to allow her children to be vaccinated against the COVID-19 disease because vaccinated people emit spike proteins leading to people becoming magnetised in such manner that metal objects such as keys or telephones stick to those people and children's fertility can be compromised; and

(n) the mother acknowledged having researched various conspiracy theories including -

(i) McDonald's hamburgers contain the remains of children;

(ii) Russia's war against Ukraine was necessary in order to free children held in prisons in Ukraine;

(iii) graphene oxide was used by governments in foods and vaccines to achieve mind control through the 5G network;

(iv) reptiles live underground and come to the surface upon assuming human form;

(v) the government controls weather and natural disasters;

(vi) bush fires are ignited by governments using lasers;

(vii) floods are caused by governments seeding clouds;

(viii) doctors administering vaccines are evil; and

(ix) the British royal family, politicians, judges, journalists, police, prominent CEOs and actors obtained their positions by selling their souls, a requirement for which was the ritual sacrifice of children.

1. Dr L reported that the mother sought to distance herself from those conspiracy theories.
2. Dr L reported that counselling psychologist Ms M stated in a letter dated 29 April 2023 that the mother presented with symptoms consistent with a recurrent complex post-traumatic stress disorder with extensive history of trauma and additional diagnosis of depression, chronic pain and fibromyoma. Dr L stated that the letter did not refer to symptoms associated with a diagnosis of complex post-traumatic stress disorder.
3. Dr L stated that Ms M's reference to the mother being psychologically intact is not consistent with the history as given by the mother including psychotherapy for more than four years, three psychiatric admissions and long-standing use of anti-depressant medication.
4. Dr L expressed the opinion that the mother suffered from a recurrent major depressive disorder. He said she exhibits a tendency to minimise her mental health difficulties and that her subscription to conspiracy theories might indicate an attempt to mislead. Dr L expressed the opinion that the mother does not fully meet the criteria for borderline personality disorder.
5. Dr L prepared a forensic psychiatrist report in relation to the father, it also being dated 9 June 2023. So far as matters relevant to the father's psychiatric history were concerned, Dr L addressed the mother's allegations about the father having had an extra marital affair. Dr L reported that the father had denied anything along those lines but that the exchange of emails to a female colleague discovered by the mother in 2006 ceased a matter of months later.
6. Dr L reported that the father told her that the father's relationship with the mother suffered a lot of ups and downs causing the father to worry about the mother. The father told Dr L that he felt liberated since separating from the mother.
7. Dr L recorded the many allegations made by the mother against the father and concluded that the father did not present with evidence of a mental illness.
8. Dr L reported that the mother had made a collection of very serious allegations against the father which if proven would not evidence a mental illness but would require psychological intervention. Dr L reported that he was unable to find anything in the father's history of major mental illness, substance use disorder, antisocial personality disorder or conduct disorder that would lead to an increased risk of violence. Dr L stated that he observed that child protection agencies had not become involved.
9. Dr L was cross-examined by counsel for the father. The following is a synthesis of the more important matters that emerged from that cross-examination -

(a) the mother's statement that she had left her job at CC Authority by reason of bullying could indicate a borderline personality trait in the mother;[96]

(b) the mother was admitted for psychiatric reasons to DD Hospital in 2010, to EE Hospital in mid-2013 and to BB Hospital indicating a deterioration in her mental health thereby explaining the trajectory in the mother's mental illness;[97]

(c) the mother provided to Dr L a history that she witnessed emotional and physical abuse towards her mother by her father, she witnessed physical violence towards her brothers, she was the subject of school bullying and she was sexually abused as a 12 and 13-year-old;[98]

(d) Dr L stated that childhood trauma is an important factor in mental health problems in adolescence and adulthood with two very specific consequences, namely post-traumatic stress disorder and personality disorder, particularly of the borderline type;[99]

(e) Dr L's practice is to accept the history as given to him[100] rendering him unable to verify the history he is given;

(f) response to trauma is highly variable[101] depending on the individual concerned;

(g) on one occasion the mother had a three-week psychiatric admission and in circumstances where an average psychiatric admission is of one week's duration to two weeks maximum, a three-week admission indicates a significant level of distress;[102]

(h) the mother had a one-month admission to FF Clinic, a psychiatric facility;[103]

(i) Dr L reported that the mother had an acknowledged fear of abandonment, being another borderline personality trait;[104]

(j) hoarding can indicate an obsessive-compulsive type disorder rendering it more difficult to treat;[105]

(k) Dr L stated that the mother believes a sexual incident occurred involving their son and the father;[106]

(l) the mother's beliefs about COVID were much stronger than she indicated and he would be concerned if the mother told the children of her COVID beliefs;[107]

(m) her behaviour in printing documents about her COVID beliefs and attempting to convince others about the mother having complex post-traumatic stress disorder overlaps with borderline personality disorder;[108]

(n) it is more common for someone to deny features of a personality disorder than to accept them;[109]

(o) the mother does not have the internal motivation to change her attitude towards co-parenting[110] and it would be very difficult to set a time frame at to when any change of attitude could be evident in the way she presently interacts with the father;[111]

(p) the mother says she is unable to sit in the same room as the father and that she is unwilling to participate in the K Counselling Program,[112] yet the mother nevertheless exhibits some capacity to communicate;[113]

(q) patients with borderline personality commonly experience relationship dynamics with idealisation at one end of the spectrum and devaluation at the other and in the mother's mind the father is in the devaluation position;[114]

(r) Dr L was aware that family therapy arranged through Ms T had been discontinued;[115]

(s) a risk exists that the children have become entrenched and damaged;[116]

(t) the mother would need to establish a willingness to engage in the process of repairing the co-parenting relationship which could take between six to 12 months;[117]

(u) the relevant issue about the mother's investment in conspiracy theories is whether her beliefs cause risks to the children;[118]

(v) the father had no investment in the mother's conspiracy theories;[119]

(w) from a psychiatric perspective if a person does not have a clear sense of himself or herself and as to his or her identity and that person has a general disposition to being suspicious of things, it is fertile ground to being able to explore an ideology of belonging to other people;[120]

(x) from a psychiatric point of view experiencing continual workplace difficulties at a number of workplaces could have an impact on an individual's mental state which could also indicate interpersonal challenges in interacting with others;[121]

(y) that could be an example of a borderline personality trait;[122]

(z) trauma in childhood is an important predictor of mental health problems in adolescence and in adulthood;[123]

(aa) trauma in childhood can lead to post-traumatic stress disorder as a consequence which relates to an anxiety disorder connected with previous trauma as well as to personality disorders particularly of the borderline type;[124]

(bb) dependent personality traits mean a pattern of behaviour in terms of someone's relationship with others when that person relies excessively on others to make decisions or to provide support, there being difficulty coping;[125]

(cc) if the mother is non-complaint with medication another issue emerges;[126]

(dd) refusing permission to facilitate counselling and support would make it difficult to get a clear sense of what had occurred plus its impact on the child and what level of support the child may need in relation to it;[127]

(ee) it would be of concern if the mother's conspiracy theories were shared with the children;[128]

(ff) it would be much more common for someone to deny features of a personality disorder than to accept them;[129]

(gg) if the evidence showed the mother was less than compliant in taking prescribed medication that does present a problem in the mother's willingness to address her issues and accept the diagnoses;[130]

(hh) the mother would need to heal before she can really focus on promoting a relationship between the father and the children;[131]

(ii) sometimes personality features never resolve;[132]

(jj) the mother is very rigid so it will take some acknowledgment and working with a therapist who is able to engage her on such issues and the mother needs to be externally motivated for her to do that because the mother does not have internal motivation to change;[133]

(kk) the mother is capable of engaging in a process of intervention but it would be very difficult to set a clear timeframe;[134] and

(ll) there are indications of avoidance relating to therapy with the father.[135]

1. Counsel for the mother cross-examined Dr L on a highly truncated basis. The following evidence was given by Dr L in response to questions put to him by Mr Werner -

(a) if the mother is unwilling to engage in the process then the therapy process will be a waste of time;[136]

(b) Dr L would need to know why the substance zeolite was requested by the general practitioner and whether the general practitioner expressed a current concern about the use of that substance;[137] and

(c) according to Dr L's notes it was not possible for him to say whether the general practitioner was expressing a current concern about the use of the substance.[138]

1. Dr L was also cross-examined by counsel for the ICL, Mr Baume. The more important matters that emerged from the answers Dr L gave to the questions put to him by Mr Baume may be synthesised in the following manner -

(a) the mother's sense of wanting to belong to some group or ideology is part of her borderline personality disorder;[139]

(b) the mother's fear of abandonment and hence her dependent personality contributes to the mother's fear that she might lose her children;[140]

(c) alienation is the core of the dispute between the parents in this case;[141]

(d) the mother is very rigid in her thinking in which she sees things in black or white with no shades of grey;[142]

(e) the nature of the mother's personality at present may have been formed from her exposure to forms of abuse when she was a child;[143]

(f) the mother possesses some established patterns of behaviour which are pervasive;[144]

(g) there are elements in the way she manages and interacts which will affect the children, not limited to her borderline personality disorder and her own historical depressive state;[145]

(h) the mother suffered from post-natal depression in 2010 leading to her admission to the FF Psychiatric Clinic shortly after the birth of the second child;[146]

(i) the best thing for the children is for them to have contact with both parents and, from a psychiatric point of view, that both parents have the appropriate level of treatment to support their parenting;[147]

(j) Dr L is of the view that the father did not have any form of personality disorder or mental illness;[148] and

(k) it would be an issue for the children if the mother went into a deeper state of depression and was unable to respond to the children's needs.[149]

1. Ms T, a social worker, undertook reportable family therapy in respect of the mother, the father and the children. She provided a report made 25 July 2024. Ms T reported that the father attended five sessions between April and July 2024 and that he presented as being grief stricken by reason of the children's increased resistance to spending time with him. Ms T reported that the father was concerned by the children being at risk in the mother's care by reason of her conspiracy theories and her sharing those beliefs with the children. Ms T reported that the father has stated that the mother when bringing the children to changeover sits stationary in the front seat of her car and does not encourage the children to get out of the car. Ms T also reported that the father informed Ms T that he believed the mother had told the children that the mother was removed from the former matrimonial home and was living out of her car which, according to the father, the daughter described as heinous. Ms T further reported that at the agreed changeover point the father attempts to speak to the children through the car window but the children do not say anything or they turn their heads away and the daughter at times demands for the father to give them back the family home, the car and the pet cat. According to Ms T, the father reported the daughter's growing hatred and that he was concerned for the children's mental health.
2. In her report, Ms T stated that the mother attended four sessions with her. The mother told Ms T that the father committed psychological, sexual and financial abuse against the mother. The mother told Ms T that the father had physically assaulted the son. The mother told Ms T that the mother was concerned for the mental health of the children.
3. Ms T reported that the daughter attended four sessions with Ms T between April and July 2024. Ms T reported that the daughter told her that the daughter was tired, not sleeping and that the father had destroyed her life (the daughter's words). Ms T further reported that the daughter was upset that the father kept the court case going, that he was trying to remove the mother from the daughter and that her relationship with both parents was okay before the father threw the mother out (the daughter's words).
4. Ms T reported that the daughter acknowledged never having seen the father abuse the son, yet the father questioned why the son would lie about the father having abused the son. The daughter told Ms T that the son told the daughter that the father told the son that the father would kill them all.
5. Ms T reported that it was clear the daughter was highly distressed and living in a state of hypervigilance which was not based on concrete evidence that the father was a dangerous man but rather it was based on what the son had told her coupled with the daughter's own negative feelings towards the father.
6. Ms T reported that the daughter takes the view that joint sessions with the father are undesirable because the daughter sees herself as being unsafe in the father's presence.
7. Ms T reported that she showed the daughter a photograph of the daughter at the daughter's 13th birthday party smiling and appearing happy, the photograph having been taken by the father.
8. Ms T expressed the opinion that it was highly possible that the daughter has split her world psychologically and emotionally from the father. Ms T said the daughter demonstrated no ambivalence towards him and now views him as being all bad, unable to recall anything positive in her relationship with the father. Such behaviour, said Ms T, is not a characteristic of normal or healthy psychological functioning. Ms T said the daughter may also be experiencing distorted memories with her father, a symptom of psychological splitting.
9. Ms T reported that the son attended three sessions with her. Ms T reported that the son's presentation was likely consistent with autism. She reported that without hesitation and minimal rapport the son alleged that a school teacher had struck him. Ms T reported that the first time any statement about some alleged striking of the son occurred was after the son had been in the care of the mother. Ms T further reported that the son had alleged that other teachers had locked the son in a classroom and kicked the son. Ms T reported that the son presented in July 2024 with heightened stress and body language and he said he was worried about being returned to the father's care. Ms T reported that the son told her he heard the father on the telephone telling the caller that the father would kill the children. Ms T reported that she showed the son photographs of him at his 10th birthday on a holiday at Region GG depicting the son. Ms T reported that the son disputed that the photographs were of him and that he was confused. Ms T said the photographs showed the son happy which was to be contrasted with his incongruent present appearance and negative construction of the father.
10. Ms T stated that the son had psychologically split his world and had split off emotionally from the father. She said the son views the father as being all bad, that the son has distorted recollections and that the son requires significant therapeutic intervention.
11. In her report, Ms T put forward a variety of opinions and recommendations. Among them were the following -

(a) the children have rejected the father and are closely aligned with the mother;

(b) the children present as being highly distressed and disturbed;

(c) a dire need exists for stability in the parenting and living arrangements for the children;

(d) the conflict between the parents was having a significant impact on the children's mental health and was having a dire impact on their relationship with the father;

(e) the children have been overly involved in the disputation between the parents, especially how the mother was removed from the former matrimonial home;

(f) the children are in a state of significant cognitive dissonance having engaged in emotional splitting to cope with the strain under which they function, blaming the father for their current circumstances and they have been unable to recall any positive attributes applicable to the father, that being uncharacteristic of normal or healthy psychological functioning;

(g) it is concerning that the son continues to make allegations of physical abuse against the father, now extended to the paternal grandparents and school teachers, which allegations have been made without prompting and without detail or emotional expression;

(h) neither the mother nor the daughter told Ms T that the father had physically abused the son;

(i) child protection have not substantiated this concern due to the lack of concrete evidence to validate the allegations; and

(j) little was to be gained through family therapy.

1. Ms T was cross-examined. The more important matters that arouse from the cross-examination of Ms T were as follows -

(a) throughout family therapy the father showed progress in understanding the impact that the separation had on the children and he was cooperative in discussions about how he could improve his communication and attunement with the children to provide them with emotional support;[150]

(b) Ms T was concerned by the mother's tendency to have black and white thinking about the father and the influence this had on the children's negative views of their father;[151]

(c) Ms T observed no ambivalence from the children towards the father which she described as maladaptive which she stated was often due to cognitive dissonance and an inability to tolerate conflict between parents;[152]

(d) Ms T stated that she could see the parents' conflict and their divergent accounts having such an impact on the children and their levels of distress that it has led the children to their rejection of the father as a way of coping with that distress leading to an alignment with the mother;[153]

(e) the son was unable to recognise himself in a photo which was potentially due to his memory being influenced by trauma;[154]

(f) a large stressor for the children was a fear of being returned to the father's care;[155]

(g) the daughter was overly involved in the issues between the mother and father which was having an impact on her mental health;[156]

(h) the daughter's fear of the father was developed or at least increased by unsubstantiated claims made by the son;[157]

(i) the mother could have both unconsciously and consciously behaved in a manner that indicated to the children that the father was a dangerous person;[158]

(j) the children were overly involved which caused them distress;[159]

(k) a moratorium period would be very difficult to manage given the children reject the father and any moratorium period would need to be approached with caution and therapeutic intervention;[160]

(l) on the evidence provided to her, Ms T said the mother's allegations of family violence against the father did not appear to correspond with the evidence provided;[161]

(m) unless the mother is willing to co-parent with the father it will be highly problematic for the children to have any sort of meaningful relationship with the father;[162]

(n) the court needs to weigh the risk of the children both absconding from the father's care with the potential further influence or sabotage that the mother may have on their relationship with the father;[163] and

(o) the risk of absconding from the father's care may be mitigated by the children holidaying with the father or by therapeutic intervention (with or without the mother's inclusion).[164]

1. Ms HH, the son's support worker, provided a report dated 25 July 2024 after facilitating a collection of changeovers for the children since September 2023. Ms HH reported that -

(a) in September 2023 Ms HH observed the children not wanting to go to their father;

(b) at every single changeover (her words) the children refused to leave Ms HH's car;

(c) Ms HH observed that the handovers were very tense, the children barely spoke and refused to leave the car;

(d) after the failed handovers the children described feeling relieved;

(e) the son reported that when he was last in his father's care he was locked in his room for a whole weekend, he had to make himself dinner and was dragged from school by his father at school pick up;

(f) over time the children became increasingly reserved at handovers; and

(g) on a number of occasions the father said to the children that once the court made its decision things will be different to which on one occasion the son replied saying he just wanted to be with the mother and his sister in their house.

1. Ms HH was cross-examined. In answer to questions put to her she gave the following evidence on the more important issues -

(a) she never managed to facilitate a handover;[165]

(b) at handovers, Ms HH would mostly "sit there and say nothing - just observe";[166]

(c) on a couple of occasions she would ask the children if they were comfortable to leave the car to which they replied they were not;[167] and

(d) she had no concerns about the father's behaviour at handover.[168]

1. Ms M provided a report dated 24 July 2024. She said that to the date of her report, she had spent time in the order of 75 hours with the mother, counselling the mother on a regular basis. The more significant matters that emerged from Ms M's report were as follows -

(a) the mother presented with recurrent complex post-traumatic stress disorder;

(b) according to Ms M, the mother does not meet the criteria for a diagnosis of borderline personality disorder;

(c) according to Ms M, the mother is emotionally well-regulated, interpersonally appropriate and highly attuned to the needs of the children;

(d) the mother is a very intelligent and educated individual;

(e) psychologically the mother is intact and vulnerable to exploitation; and

(f) in Ms M's view, the mother is a competent and appropriate primary carer for the children.

1. Before addressing issues that arose from the cross-examination of Ms M, it is necessary to make several observations about her report. They were -

(a) despite Ms M having spent 75 hours with the mother, Ms M's report is in no greater detail than one and a half pages;

(b) nowhere in her report did Ms M descend to the detail of her 75 hours' worth of counselling;

(c) the conclusions expressed by Ms M especially as to the mother's suitability to remain the children's primary carer are not supported by any exposure of her path of reasoning within the statements of principle of the key authorities on point;[169]

(d) except in the most fleeting of terms did Ms M touch on the very considerable parental conflict that had been front and centre in the medical evidence of other witnesses who gave evidence on psychological or psychiatric issues;

(e) almost no attention was given in her report to details of the children, even as reported by the mother to Ms M;

(f) no mention was made of the mother's conspiracy theories about which other witnesses gave evidence and it would be surprising in the extreme if in over 75 hours of counselling Ms M was not informed of the mother's conspiracy theories;

(g) Ms M gave no supporting information by which I could verify the legitimacy and maintainability of her conclusion that the mother presented with a diagnosis of recurrent complex post-traumatic stress disorder whereas Ms M denied the mother being affected by borderline personality disorder; and

(h) Ms M stated that the mother had either consciously or unconsciously communicated negative views of the father to the children -

"She advised feeling annoyed when her mother says she needs to see her father. In the writer's opinion, it is likely [X] is confused when [Ms Todorov] encourages the contact with [Mr Levitt], as it may appear as incongruent with the ill feeling [Ms Todorov] has likely communicated about [Mr Levitt], either consciously or unconsciously to the children over time".[170]

1. Given the above I did not regard Ms M's report as being probative in its expression or particularly useful in the overall.
2. Ms M was cross-examined. The more significant matters of evidence that arose from her cross-examination included the following -

(a) the origin of the mother's trauma was her childhood;[171]

(b) she is treating the mother for recurrent post-traumatic stress disorder and depressed mood while noting the mother has never suffered from clinical depression;[172]

(c) in her opinion, the mother did not fit the criteria for borderline personality disorder;[173]

(d) that opinion was based on all sessions in which she engaged with the mother;[174]

(e) whilst she described the mother as interpersonally appropriate and highly attuned to the needs of her children, those observations were based on what was reported to Ms M;[175]

(f) Mr Potter alleged that Ms M was not unbiased and not objective as required of an expert witness by the court rules;[176]

(g) Ms M had not seen the children[177] or the father;[178] and

(h) Ms M was unaware that the mother had stopped taking her antidepressant medication.[179]

1. I have attributed minimal weight to Ms M's report in making my decision in this case by reason of the superficial nature of Ms M's report, her lack of reasoning and lack of supporting information in her report.

1. Ms NN prepared a report dated 20 October 2024 after the mother's general practitioner referred the mother to Ms NN for pain management. Ms NN stated that she had been requested to provide an opinion (although the precise question on which her opinion had been sought was not stated) concerning the mother's anxiety, depression, post-traumatic stress disorder, complex post-traumatic stress disorder, chronic depression and generalised anxiety disorder.
2. Ms NN said the mother's mental state was stable. She said the mother did not exhibit symptoms of a personality disorder and Ms NN disputed that the mother has a borderline personality disorder. Ms NN said the mother was raised to follow rules and to please others ahead of her which rendered her vulnerable to interpersonal manipulation.
3. Ms NN's style of reporting was such that she did not distinguish between what she was told as opposed to what she observed or tested herself. By way of example she expressed herself in the following ways -

(a) the mother functions very well given the long ordeal of over 18 months;[180]

(b) the mother was initially separated from her children and left with nowhere to live;[181]

(c) when granted 70% custody of the children...;[182]

(d) the mother has done her best to follow court orders;[183]

(e) it would be apparent to the court that the mother had not obstructed the changeover process;[184]

(f) the mother has taken the children to all their medical, psychological and court appointments, to school and to visit family;[185] and

(g) the children clearly want to be with the mother and do not run away from her whilst both refuse to go with the father and continue to run away from him.[186]

1. In the final paragraph of her report, Ms NN purported to state that in her opinion -

(a) the mother does not suffer from any significant mental health condition that would hinder her ability to care for the children;

(b) the mother is a fit and proper person to care for the children;

(c) three other members of this family have stated that the father has perpetrated family violence against them; and

(d) supervised visits with the father may be the best way for him to see the children.

1. I was guarded about accepting the matters about which Ms NN purported to express an opinion. She did not narrate in detail the matters required by s 79 of the Evidence Act. Ms NN made no attempt to demonstrate her chain of logic or reasoning that supported the conclusions she expressed. Ms NN did not explain what she meant by her words that the mother does not suffer from any significant mental health condition that would hinder her in caring for the children. Her statement that three members of the household have stated that the father perpetrated family violence against "them" was unsupported and precisely against whom was unknown. The fact that Ms NN wrote that commentary did not prove the fact of the father perpetrating family violence. Precisely why Ms NN volunteered the possibility of the father having supervised time was also not said. It seemed to me that such a comment was no more than a gratuitous aside.
2. Ms NN was cross-examined. The more important matters that arose from her cross-examination may be shortly stated. They included -

(a) the mother was referred to Ms NN by her general practitioner, Dr JJ;[187]

(b) the mother had undertaken almost 100 sessions with Ms NN;[188]

(c) the mother was originally seeing Ms NN for assistance in pain management which then broadened to mental health;[189]

(d) the mother was diagnosed with complex post-traumatic stress disorder related to physical and sexual domestic violence in her marriage;[190] and

(e) Ms NN has not conducted any observation session of the mother's parenting and Ms NN has only seen the mother interact with the children[191] and brought the children into sessions individually to assist in forming Ms NN's opinion of the mother.[192]

1. Ms NN conceded that she had relied on what was reported to her by the mother.[193]
2. I take the view that Ms NN was not impartial. She accepted without testing almost everything told to her. Ms NN purported to express opinions about mental health matters without providing information of the factual matters that underpin the receipt of so-called expert evidence for the purposes of s 79 of the Evidence Act. She did not provide a rational, cogent and sound evidentiary basis for the expression of the opinions she expressed.[194]

1. Dr G, together with Ms KK and Dr LL, operate a business called K Counselling Program. A report dated 6 November 2024 from K Counselling Program was adduced in evidence. Dr G, Ms KK and Dr LL prepared a joint report which considered the reports of Ms B, Ms T and Dr L. Dr G, Ms KK and Dr LL stated that the parents were not interviewed together, the mother asserting that she did not want to be in the same room as the father.
2. In their joint report Dr G, Ms KK and Dr LL recorded a collection of matters. They were as follows -

(a) the parties were interviewed separately on 3 October 2024 as a result of a court order requiring participation in K Counselling Program;

(b) the mother declined to participate in a parent interview asserting she felt unsafe due to family violence, stating that she is unable to be in the same room as the father;

(c) despite refusing to participate, the mother maintained that she was doing the best she could for the children;

(d) the mother seemed unable to recognise that her actions could be impacting the children's perceptions of the father;

(e) there were obvious co-parenting difficulties because the mother had no strategy as to how she may communicate with the father;

(f) the mother's claims that she supports the children having a relationship with the father were inconsistent with her conduct;

(g) the father stated that he was deeply worried about the children's psychological wellbeing and that he wished to restore a healthy relationship with the children and hopefully with both parents;

(h) the father said he believed that a moratorium period during which the children have no contact with the mother was necessary to enable the children to reunite with him before returning them to the care of the mother;

(i) the father said the children need ongoing psychological assistance to rebuild their stability;

(j) the father stated that due to the split parental relationship a court ordered change of living arrangements is required;

(k) K Counselling Program requires the participation of all family members and as the parents are unable to be interviewed together, K Counselling Program is considered an inappropriate therapeutic intervention;

(l) it is not likely that the parties will be able to co-parent;

(m) the real issue is whether the children's refusal to see their father is justified and if not, to what extent the refusal is the result of the mother's mental health issues;

(n) if the children's refusal to spend time with the father is justified, then their wishes not to see him should be respected;

(o) if the children's refusal is unjustified, there should be an acceptance of the current status quo and there be an acknowledgment of the futility associated with a resumption of time spent with the father or there should be a substantial moratorium period of three to six months to attempt to recalibrate the children's relationship with the father;

(p) if Ms T's formulation is correct, the children are in psychological crisis and they are on a negative psychological trajectory;

(q) if the children's views are justified their wishes should be respected; and

(r) if the children's views are not justified but those views are a reflection of the embroilment with the mother's feelings and beliefs, it is likely that if no intervention occurs they will not only develop a similar distorted view but their relationship with their father is also not likely to repair.

1. Dr G gave evidence at two stages during the trial. He gave viva voce evidence from the witness box as a single witness. He also gave evidence jointly. His evidence was extremely useful.
2. Dr G was cross-examined in relation to the joint report prepared by him, Ms KK and Dr LL. The more important points raised were the following -

(a) K Counselling Program is an action-oriented programme focused on finding the best way for a family to move forward;[195]

(b) the mother refused to participate in the programme as it required her to be in the same room as the father;[196]

(c) the daughter is having severe mental health problems while she is not seeing the father and those problems can only be alleviated when the parents refrain from placing her in a position of having to make a decision about how and if she should maintain a relationship with each parent;[197]

(d) a lot of work is required in cases where one parent is rejected involving a much less gentle approach and often requiring robust therapeutic intervention;[198]

(e) neither parent is invested in the prospect of the children having a relationship with the other parent so they are split and fragmented;[199]

(f) the children are having mental health problems now and it is likely that those problems will intensify;

(g) it is more likely that the children will have heightened risks of problems with anxiety and depression, drug and alcohol use and difficulties sustaining intimate relationships;[200]

(h) suicide is also a possibility;[201]

(i) the prognosis for the children is poor and their only hope is that the parents can stop the problem;[202]

(j) Dr G said he has not seen success with moratorium periods but believes that it may be worth pursuing as a "hail mary pass" (his words) with the necessary support in place;[203]

(k) success is impossible when the favoured parent is not firmly invested in the therapeutic process;[204]

(l) where the favoured parent positively rejects the idea of a relationship between the children and the rejected parent there is nothing that can be done;[205]

(m) the prognosis is extremely poor when the children are empowered against the rejected parent;[206]

(n) the prognosis is poor when the children are exposed to tribal spirit (his words) amongst the family of the favoured parent which is directed against the rejected parent;[207]

(o) success is difficult to achieve when the favoured parent sees no value in a relationship between the children and the rejected parent;[208] and

(p) therapy is a waste of time unless both parents are willing to change.[209]

1. By agreement of all parties, Dr G, Dr LL and Ms KK gave concurrent evidence by video. The more significant issues that arose from that concurrent evidence was as follows -

(a) Ms KK stated that the differing approaches to instances of alignment by children with one parent may be likened to that of a diesel train versus an express train, stating that where it is sought for children to be more at ease in having a relationship with both parents, there is greater movement in families in which there is a shift in the parental alliance;[210]

(b) Ms KK stated that in order for a therapeutic intervention to produce clear results and change for this family, the greatest indicator of this change will be a shift in the parents' relationship;[211]

(c) Ms KK stated that the shift in the parents does not necessarily mean that they must co-parent but rather there are ways of working with both parents in a parallel manner;[212]

(d) Ms KK stated that K Counselling Program's therapeutic role with the mother would be to manage her anxiety to a point where the parents are not necessarily co-parenting but where everyone can interact in a healthy way;[213]

(e) Ms KK stated that there would be enormous benefit for the mother in achieving such a healthy relationship;[214]

(f) Dr G stated that examining the parents in an environment where they are together with their children provides an abundance of information;[215]

(g) Dr G stated that the children's fragile mental state does not pose an obstacle to K Counselling Program as almost every child who takes part in the programme possesses a fragile mental state; and

(h) Dr G stated that avoiding and acting in a manner which perpetuates such a fragile mental state is not encouraged.[216]

1. Dr OO prepared a report dated 25 July 2024. Her curriculum vitae revealed that she holds academic qualifications from universities in Australia and in the United States of America, she is experienced in psychology, family violence, complex trauma and forensic assessments from 2014 to date and that she has written intensively in peer reviewed journals. She said she is a member of recognised professional societies in psychology. Her report focused on the son. Dr OO consulted with the son on eight separate occasions between June and July 2024.
2. In essence, Dr OO expressed the view that the son should be believed when reporting his allegations against the father. It was necessary to probe deeply about that opinion.
3. In her report dated 25 July 2024, Dr OO recorded a collection of observations. The most relevant of those were the following -

(a) the son frequently referred to the mother non-verbally for reassurance;

(b) on one occasion the son referred to the father by his given name and not as dad;

(c) the son said he had been dragged, kicked and hurt by the father;

(d) Dr OO reported that at first she did not know if the allegations could be true because the son would repeat the same words without change then he provided more detail;

(e) the son disclosed he had been chased from room to room by the father, trapped and had to break a window to escape;

(f) the son drew a depiction of the rooms he was referring to and repeated his story accurately in reverse;

(g) Dr OO said she observed this technique is not particularly helpful for child witnesses but is a strategy used to determine the truth because when a story is false it is difficult to say in reverse;

(h) Dr OO said the statements given by the son were compelling as he could explain his experiences in reverse particularly as a child on the spectrum;

(i) the son expressed distress that no one believed him including the mother; and

(j) the son disclosed that at his prior school, staff would lock him in locations where his father could locate him.

1. Dr OO asked the court to consider that children can provide false narratives both to indicate distress and to test how care providers respond to such narratives. For example, Dr OO reported that it is not uncommon for children experiencing trauma to tell trusted people that they are haunted or that monsters are present. Dr OO reported that the narrative of what happened to the son at his previous school may be false but even such a false narrative supported the narrative of harm at the hands of the father.
2. Dr OO made other observations in her report. Those included -

(a) the son presented as extremely stressed about the prospects that he may be ordered to live with the father or orders forcing him to visit his father; and

(b) the son was heartened when informed that the court orders adults to do things and not children.

1. Dr OO concluded that the son was compelling and that the court should take his accusations against the father seriously. However, she said that if the son had fabricated those accounts, Dr OO said the court would have to ask what the function of such serious and significant fabrications were.
2. Dr OO said the son is so overwhelmed by the idea of being in the father's care that he has fabricated those experiences or he is telling the truth and that the latter seemed to her to be the case.
3. Dr OO was cross-examined in great detail. The more important points raised in her cross-examination were -

(a) the son repeatedly said the father drags, kicks and hurts the son;[217]

(b) Dr OO had no interaction with the father or anyone from the father's family;[218]

(c) the somatization that Dr OO observed might have been a result of the medication the son was being prescribed;[219]

(d) Dr OO spoke about the son's nightmares and deep sadness[220] yet she admitted that there was no reference to either in her report;

(e) the son having multiple psychologists is not useful; and

(f) Dr OO would be very concerned if a moratorium period were ordered.[221]

1. During Dr OO's cross-examination she started crying when giving her evidence. She was distressed about what she was narrating. I became concerned that her objectivity in this case may have been compromised.
2. Dr OO conceded that the information she gathered came from the mother and not from the son.[222]
3. I entertain very real misgivings about the accuracy of her assertions concerning the son's recital of information relevant to the father harming the son. Her conclusion that the son's evidence was compelling was her view, yet it did not require me to accept what she said in that regard. Accusations of violence require special care to be taken and one psychologist's view of the truth of events as told to her does not prove that those events actually occurred, whether in the manner narrated or at all. She may have been canvassing her views at a psychological level. At an evidentiary level, especially in relation to very serious allegations, the position was very different.

1. Mr N produced an undated report about the son. He did not provide a curriculum vitiate so his study and experience as a clinical psychologist could not be ascertained. Mr N said in his report that he had seen the son on 14 occasions. Mr N said that the son is fearful of his father and that the son worries about having to live with the father.
2. Mr N was cross-examined. The more important matters that emerged from his cross-examination included the following -

(a) the son was one of his first patients;[223]

(b) the father was supportive of the son having therapeutic counselling but was sceptical of the clinic as it was the same clinic that the mother attends;[224]

(c) Mr N was not aware that the son was on medication;[225]

(d) the son was distressed and stressed by the fracture of the relationship between the mother and father;[226]

(e) Mr N said he was not aware of any history of what happened since the son had been in the care of the mother and his understanding has only come through the son;[227]

(f) the son was not usually able to give Mr N a clear timeline of when events happened or what happened and only on one occasion did the son report sharing a room with the daughter and his mother which was very cramped;[228]

(g) the son seemed happy at school;

(h) the son's experience with the conflict between his parents, his living arrangements and change of school have compounded his current underlying condition, albeit a mild deficit;[229]

(i) Mr N believes that the son's views about the possibility of rebuilding some kind of peaceful arrangement with the father may have been influenced by when the conversation concerning that arrangement occurred;[230] and

(j) the son will require ongoing therapeutic treatment and Mr N reported that he and the son had formed a healthy therapeutic relationship.[231]

1. Mr N seemed to unreservedly accept the information given to him by the son which was most likely to be skewed.

1. Upon evaluating the totality of the medical evidence it is readily apparent that the mother's mental health is poor which has and will continue to have an impact upon the children.
2. Among other things, Dr L gave evidence about the mother's conspiracy theories which included how the mother refused to allow the children to be vaccinated because of her belief that the COVID-19 vaccines emitted spike proteins. The mother admitted to Dr L that she researched various other conspiracy theories. The evidence about whether the mother told medical specialists she discussed her conspiracy theories with the children was equivocal.
3. The evidence also revealed that the mother's mental state will require treatment. However, it is unknown whether she would participate in such treatment.
4. The medical evidence revealed that the mother suffers from borderline personality disorder. It is not necessary for me to determine that issue. It is sufficient to observe that the mother has, and in some respects continues, to be adversely affected by a collection of psychiatric or psychological conditions, some of which individually or all collectively bear upon the mother's capacity to advance the best interests of the children. I was particularly impressed by the evidence of Dr L and Dr G whose qualifications and experience in psychiatry and psychology respectively rendered, on the balance of probabilities, the veracity of their evidence preferable over witnesses who, for example, accepted without reservation the information imparted to that witness by the mother. Dr L in his letter to Ms M reported the mother presented with symptoms consistent with recurrent complex post-traumatic stress disorder. Dr L's findings were that the mother exhibits a tendency to minimise her mental health difficulties. I agree with that observation.

1. During cross-examination Dr L stated that the mother does not have the internal motivation to change her attitude towards co-parenting and that it will be difficult to say by when any change of that attitude may be evident. That seemed to accord with other objective evidence in this case.

1. The evidence revealed that a significant strain exists in the relationship between the father and the children.
2. Despite the mother alleging the father suffers from poor mental health, I accept Dr L's opinion that the father does not present with evidence of mental illness.

1. Ms B said that if a finding of alienation were made. She recommended the immediate removal of the children from the mother's care so as to live with the father with no contact with the mother. Dr L was clear in the evidence he gave in cross-examination, as was Ms B in her 4 March 2024 report, that the mother had alienated the children from their father.
2. The mother's disregard for participation in K Counselling Program was telling of her inability to cooperatively parent and to put the best interests of the children first. She heard Dr G give evidence that the children are at risk of suicide, yet she still rejected any form of participation in K Counselling Program. Her opinions and attitude towards the father and parenting are unlikely to change. The mother in my view will not promote a relationship between the father and the children and her refusal to participate in K Counselling Program is reflective of that attitude.
3. I decline to make an order for the children to spend no time with the mother. However, I have reached the conclusion that an order for the children to live with both parents will not be workable. The mother's hostility towards the father is unremitting. Co-parenting is premised on cooperation between parents. The mother in this case is sufficiently hostile towards the father that no utility will be served in ordering co-parenting of the children.
4. The bigger issue is arresting the children's current deterioration in their mental health. That involves considerations of changing the children's residence. Unless their living arrangements are changed, their downward spiral will continue with all the attendant consequences spelled out by Dr G.

1. I recognise that the children may encounter difficulty adapting to a change of residence. However, it is not in the children's best interests to order that the children live with a parent who presents as a high level of risk. The risk the mother poses to the children in a continuation of their existing residential arrangements outweighs any risks associated with a change of residence.
2. Naturally, I am unable to say what the children will do if a change of residence order is made. Ms B gave evidence that the only other option available is for an order to be made that the children live with both parents. However, Ms B said that any such order would require the support of both parents. An order for the children to live with both parents is not workable as has already been mentioned.
3. The evidence reveals the children are highly apprehensive at the idea of spending time and living with the father. The children reported to Ms B the fear they have of the father. The daughter in particular is aligned with the mother.
4. I accept Ms T's observation that the daughter is highly distressed and she is living in a state of hypervigilance.
5. This case calls for a decision about the best interests of the children. Either the children remain with the mother leading to the real possibility that the children will develop substance abuse issues, worsening mental health issues and even risk of suicide or the children change residence which in turn may result in the children becoming highly distressed and running away. However, based on my observations of the father, I take the view that he is likely to do all he can to support the children in transitioning to living in his care so as to alleviate the psychological and emotional effects the children may face in his care.
6. The children's future in their present circumstances is bleak. Dr G said as much. I agree with his characterisation of the risks to the children unless changes are made, especially with whom the children live with. The extensive medical evidence in this case paints a consistent (albeit dire) picture that in the mother's care, the children's mental health is very poor. That will not change without changing their daily influences. The mother's hostility to the father and her alienation of the father must stop if the children's future is to be rescued.

1. In accordance with stipulations by a number of Full Court decisions, in any contested parenting application the judge is required to consider each proposal in each version of the parenting application before the court.
2. The mother's most recent proposal was reposed in her third further amended initiating application filed on 24 October 2024. The father's latest iteration was in his further amended initiating application filed 15 July 2024. The ICL's most recent proposal was set out in final address.

1. The mother seeks orders for the children to live with her and spend minimal time with the father. Mr Werner of counsel for the mother submitted that the father's proposal for the children to live with him is unworkable and that the change of residence, if ordered, is doomed to fail. Mr Werner submitted that ordering a change of residence is not in the children's best interests.
2. It is utile to record the precise terms of the arrangements proposed by the mother in her 24 October 2024 application. They were -
   1. That the Applicant Mother have sole parental responsibility for the children of the marriage [X], born 2010 ([X]) and Y, born 2013 ([Y]) and make all major long-term decisions in relation to the children PROVIDED ALWAYS THAT the mother keep the father informed of major decisions that she makes in relation to the children or either of them and actively seeks the father's input on such issues.
   2. For the purposes of order 1 herein, before any such decisions are made in respect of the children:
      1. The mother shall advise the father by email of her proposal relating to the child or children;
      2. If the father wishes to comment on the mother's proposal (or if the father has any proposal he wishes to make relating to the child or children on this issue) he shall, within seven (7) days after the date of the mother's email, advise the mother by one email (to the email address from which the mother sent her communication) of his views;
      3. Upon receipt of any comment or proposal by the father, the mother shall give consideration to the father's views;
      4. After the mother has considered the father's comments, she shall make a decision and advise the father by email or SMS text message of the outcome immediately after making that decision; and
      5. If the father does not respond by email as provided in order 2(b) herein, the mother shall be entitled to presume that the father does not wish to be involved and she may decide the issue.
   3. That the children live with the Applicant Mother.
   4. That the children spend time and communicate with the Respondent Father in accordance with the children's wishes.
   5. That the Father be permitted to forward to the children letters, cards and gifts on each of their birthdays, at Easter and at Christmas.
   6. The Mother and Father communicate with each other by email or text message about the children's care and welfare only.
   7. The Mother and Father notify each other of any serious medical injury, serious illness or hospital admission in respect of the children as soon as practicable after that serious medical injury, serious illness or hospital admission occurs and both parties are authorised to speak to any treating Medical Practitioner or Specialist in relation to that serious medical injury, serious illness or hospital admission and this Order share serve as Authority for same.
   8. The Mother and Father do all things as are necessary to ensure each of the parties can receive (at their own expense) copies of all newsletters, notices, photographs, and other information provided by school.
   9. The Mother and Father do all things necessary to facilitate the children attending upon any necessary counselling service, as directed by the children's General Practitioner, School or the Department of Families Fairness and Housing and thereafter comply with the recommendations of any counsellor engaged with the children. The Mother and Father be authorised to speak with any Counsellor the children attend.
   10. The Mother and Father keep each other informed of their current mobile phone numbers and email addresses and advise each other of any proposed changes to these details as soon as possible.
   11. Both parents are permitted to supply copies of these orders to the children's schools, to their medical and allied health treating professionals and to the NDIS.
   12. That the Mother be at liberty to sign passport applications and renewal of passport applications for the children without the consent, input, or execution of the Father.
   13. That for the purposes of Section 11 of the Passports Act 2005 (Cth), this Order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act 2005 (Cth)) for the children upon application by the Mother without the consent or signature of the Father. So that there is no confusion, the passport is to issue notwithstanding the failure of the Father to sign the passport application or any other travel documents.
   14. The mother will retain in her possession the passports issued for the children.
   15. The mother and children be permitted to travel overseas, including to India, on one occasion per year, for a duration not exceeding four (4) weeks.
   16. That the Father:
       1. Be and is hereby restrained by injunction from electronic tracking of the children's movements at all times.
       2. Ensure that should the children initiate any contact with the Mother when they are in his care, that he provide them with privacy in relation to such contact and the Father facilitate all such contact including affording the children access and use to their mobile phones.

17. The Mother and Father be restrained by injunction from:

1. Denigrating each other within the hearing or presence of the children, either personally or through their servants or agents;

2. Discussing any aspect of the Family Law Dispute between the parents, within the hearing or presence of the children, either personally or through their servants or agents.

18. That the Mother be and is hereby restrained by injunction from:

a. Subjecting the children to any form of corporal punishment; and

1. b. Discussing content from websites including, [...].com, [...].com and like websites associated with the proliferation of conspiracy theories, with or within the hearing of the children.

2. That the Father forthwith enrol in and complete a Men's Behaviour Change program, a Tuning into Teens program, a Post-Separation Parenting Program and a Circle of Security Program and provide a Certificate of Completion to the Mother upon completion of same.

3. That the Father attend upon a private psychologist for anger management and he follow all recommendations of that private psychologist including as to attendance.

1. The father's final orders sought were set out in his 15 July 2024 amended response. While brief it is necessary to record the precise orders sought.
   1. That the respondent husband have sole parental responsibility for the children of the marriage:

[X] born 2010 and

[Y] born 2013

('the children")

1. The children live with the respondent husband.

2. That the children spend time no time with the applicant mother for a period of 6 months from the date of these orders, save for the purposes of family therapy as hereinafter ordered, and thereafter at such times as agreed between the parties in writing from time to time including by email or text.

3. That the parities continue to attend upon [Ms T] for family therapy during the period referred to in the preceding order and such family therapy be at the shared equal cost of the parties.

4. That the wife be restrained by herself her servants and or agents from:

a. Denigrating the children, the husband or members of his family;

b. Subjecting the children to any form of corporal punishment;

1. Discussing these proceedings with or within the hearing of the children;
   1. Causing the children to attend upon any medical practitioner (save for emergencies);
   2. Discussing content from websites including, [...].com, [...].com and like websites associated with the proliferation of conspiracy theories, with or within the hearing of the children.

1. All previous parenting orders be discharged

1. The Father have sole parental responsibility for the children [X] born 2010, and [Y] born 2013 (Collectively known as "the children").
2. Prior to and when making any decision about the long-term issues in relation to the children, the father will:
   1. inform the mother of the decision to be made, in writing by way of the AppClose;
   2. Invite feedback from the Mother within 7 days of notification on AppClose;
   3. Make the required decision taking into account the input from the Mother;

d. Advise the Mother of the decision on AppClose as soon as practicable.

4. The children live with the father.

1. The Mother deliver the children to Court Children's Service on Level 5 of the Commonwealth Courts Building no later than 30 minutes prior to time nominated for the handing down of the final parenting orders.

2. The Mother, her servants and/or agents forthwith upon being advised of the parenting orders, leave the vicinity of the Commonwealth Courts Building, with the children to remain in the care of the Court Children's Service, and the mother shall not further interact with the children.

3. That transition of the children into the care of the Father is to be effected at the Court Children's Service on Level 5 of the Commonwealth Courts Building as directed by the Director of Court Children's Services (Victoria) in consultation with the Independent Children's Lawyer ("the ICL") with the assistance of a Court Child Expert.

4. Prior to transition of the children into the care of the Father, the Court Child Expert shall explain the parenting orders to the children.

5. The Father shall attend upon the Court Children's Service as directed by the Court Child Expert and follow the instructions of the Court Child Expert and Court staff.

6. The Father is to arrange as soon as practicable for the children to attend upon a therapist for therapeutic counselling/family therapy ("the designated therapist"), which he shall also attend when and if directed by the designated therapist. Such designated therapist (s) to be selected by [Ms B], the Family Report Writer and to continue for a period of no less than twelve (12) months and the costs of same shall be met by the father.

7. For a period of six (6) months ("Contact Moratorium Period") from the making of these orders, the Mother, her servants and/or agents be and are hereby restrained from spending time or communicating with the children by any means, including mail, telephone, email, text message or social media.

12. During the contact moratorium period:

1. in the event the children contact or communicate with the Mother, the Mother shall not respond to such contact or communication and shall report such contact or communication to the Father via email within 24 hours of her receiving it;

2. in the event the children attend upon the Mother at her home, or any other location save as explicitly outlined in these Orders, the Mother shall report same to the Father and shall do all things necessary to facilitate the children's return to the Father;

3. the Mother shall be at liberty to contact the children's school to obtain written updates in relation to their progress, and the Mother shall be at liberty to provide a copy of these parenting orders to the children's school as authority for same; and

4. The Mother to have full and unrestricted access to any online or electronic communication platform used by any school attended by either of the children.

5. the Mother shall otherwise be restrained from contacting or personally attending upon the children's school.

6. Upon expiration of the contact moratorium period, the children shall spend supervised time with the Mother, to be undertaken by a suitably qualified professional supervisor as nominated by the Father, and paid for by the Mother. Such supervised time is to occur no more than three hours, once each week on a weekend day at such times as can be accommodated by the supervisor for a period of three (3) months.

7. Following the expiration of 3 months, or at least twelve supervised sessions, between the children and the Mother, the children spend unsupervised time with the Mother as follows:

   1. By telephone communication each Wednesday at 6.00pm for no longer than 30 minutes;
   2. For a period of three months or at least 12 visits, each Saturday from 9.00am to 5.00pm;
   3. For a period of three months or at least 6 visits, each alternate weekend from 10.00 am on Saturday until 5.00 pm on Sunday;
   4. For a period of three months or at least 6 visits, each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday;
   5. For a period of three months or at least 6 visits, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, unless the Monday is a public holiday in which case such time shall extend to before school Tuesday,
   6. During all school holidays and special occasions days as agreed in writing between the parties; and

g. otherwise as agreed in writing between the parties.

1. Changeovers not occurring at the school, shall take place at a [fast food] Restaurant half way between the parent's homes.
2. The Father is to provide a copy of these orders to the children's school and to any of the medical or allied health professionals who shall be involved with the children.
3. Following implementation of paragraph 13, the Father keep the Mother advised of any medical practitioners treating the children in a timely manner and the Mother and the Father shall forthwith advise the other of any urgent medical treatment as needed by the children or either of them whilst in their respective care.
4. Following implementation of paragraph 13, each of the parties are permitted to liaise with any medical practitioners treating the children and obtain documents ordinarily available to parents, and these orders shall act as authority for same.
5. The Father forthwith change the current medical practitioners/specialists/therapists of the children in consultation with the designated therapist.
6. The parents be restrained from changing the enrolment of the children at high school until the conclusion of the 2026 school year.
7. The Mother and Father shall communicate in relation to the children by AppClose, save in the event of an emergency, where such communication be via SMS text message.
8. Following the implementation of paragraph 14, the children be permitted to contact the parents by telephone, SMS text message, FaceTime, Zoom, WhatsApp, Microsoft Teams or any video call at their request no more often than once per day, and for no more than 30 minutes, and the parent caring for them shall facilitate same.
9. The mother be restrained from enrolling the children or either of them in any extracurricular activity without first obtaining the written consent of the father.
10. The parties are to notify each other within 24 hours of any changes to their mobile or landline contact telephone numbers, their residential addresses, email addresses or the children's mobile telephone numbers.

25. The parties be restrained from:

1. denigrating the other party or the other party's family to or in the presence and/or hearing of the children or either of them;
2. discussing court proceedings with or in the presence and/or hearing of the children or either of them;

c. passing messages through the children or either of them; and

1. involving the children in any form of dispute between the parents or otherwise.

26. The children's passports are forthwith to be held by the father.

27. The ICL be discharged 12 months after the making of these Orders.

1. The ICL's proposals aligned with the father's. The ICL submitted that the father was not an unacceptable risk.
2. The ICL submitted that Department of Fairness, Families and Housing had made 14 reports between 2011 and 2024 investigating the father, the mother and the children and no adverse findings were made.
3. In support of its proposals, the ICL advanced submissions about the mother's mental health. The ICL submitted -

(a) the mother has struggled with her mental health since the children were born;

(b) the mother has required psychiatric admissions after the birth of the children;

(c) the mother has had extensive treatment for clinical depression but she has not always been compliant with her psychiatric medication; and

(d) the mother maintains a belief in the truth of her own history of child abuse by her own father.

1. Counsel for the ICL submitted that various medical practitioners reported the mother has had difficulty regulating her mood, emotions, emotional responses and has experienced thoughts of not wanting to live.
2. In final address, counsel for the ICL made submissions about the views expressed by the children when the ICL met with the children on two occasions. The following was reported on 18 December 2023 at the first meeting -

(a) the daughter reported that she did not trust the father or feel comfortable with him which commenced when the police removed the mother from the former matrimonial home and that his comments about the mother show he does not respect her as the mother of his children;

(b) the children reported they have a very close and loving relationship with the mother and this is where they feel loved, safe and able to be themselves;

(c) the daughter reported she hated going to the father's place as she did not feel safe, could not breathe, relax, eat, sleep and she did not want to live with him;

(d) the daughter said the father did not respect her wishes and feelings and would contradict her when she gave her opinion;

(e) the daughter said that she was worried for the son as the father forced him to sleep in his bed and the father would be naked when the son was in his bed; and

(f) the daughter informed the ICL that she would consider her and the son spending time with the father doing daytime activities such as shopping, going to the movies or the zoo.

1. The ICL met with the children on a second occasion. On 26 July 2024 the following was reported -

(a) the daughter reported that her father had locked the door on her twice and taken her Myki card;

(b) the daughter was seeing counsellor Ms MM who was great one to two times a month but the daughter still had trouble sleeping, with stomach aches and the treatment for this was not working;

(c) the daughter reported that she needs more space and needs her cat back in her life;

(d) the daughter said she hurt herself in the April 2024 school holidays as she did not know how to get the stress out any other way but she did not feel the same now;

(e) the daughter reported she did not want the father in her life and she was not able to forgive him for kicking the mother out as life was perfect before then and if the father really regretted this then he would not be treating her and the son in the way he was; and

(f) the son said that he changed schools because the former vice principal had hit him on the leg three times.

1. Before applying the facts of this case to the law, it is utile to narrate the effect of the operative legislative provisions.
2. Principles of statutory construction as pronounced by the High Court were drawn together by me in Wagstaff v Wagstaff[232] when sitting as a member of the Full Court and are to be taken as being incorporated into these reasons.
3. The starting point in any consideration of the appropriate parenting orders to be made is the mandatory stipulation in s 60CA of the 2024 amendments to the Family Law Act ("the Act"). It provides as follows -

"In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."

1. Section 60CC of the Act sets out how the court is to determine what is in a child's best interests.
2. Pursuant to s 60CC(1)(a), the court is required (hence "must") consider the matters set out in s 60CC(2). Those include -

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of -

(i) the child; and

(ii) each person who has care of the child;

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents and other people who are significant to the child, where it is safe to do so; and

(f) anything else that is relevant to the particular circumstances of the child.

1. Other provisions of the amending legislation prescribe matters which elucidate the considerations in which the court must engage when addressing the subsections of s 60CC(2). To that end, s 60CC(2A) provides that when addressing s 60CC(2)(a), the court must also consider -

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not that person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or to a member of the child's family.

1. Family violence is defined in s 4AB of the Act as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
2. When considering the risk of family violence s 60CG of the Act sets out the following -

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

1. Section 60CC(2)(a) requires me to consider the arrangements that promote the safety of the children. Making a change of residence order in this case promotes the safety of the children, underpinned by a collection of factual matters bearing upon the mother's psychological state as discussed in the medical and expert evidence above. Those matters are relevant because they bear upon the predictive exercise[233] when assessing the risk of harm the mother poses to the children. In this case, the children presently live with the mother and they suffer from poor mental health. In part, their current mental health is explicable by the disputation between their parents as well as by alienation of the children from the father. The mother has an array of psychological and psychiatric issues. I accept the preponderance of the medical evidence to the effect that if no change in the children's circumstances is made, there will be no change in the children's downward psychological spiral. A persuasive body of psychological and psychiatric evidence exists supporting a change of residence order. Yet such an order, logically, should only be made if I find that the father presents no risk to the children. I am so persuaded. I do not agree with the contention that the son's evidence should be accepted to the effect that the father harmed the son nor do I accept the chain of reasoning about the son's ability to narrate events in reverse order thereby demonstrating the likelihood of that narration being true. That makes little sense to me. I was not persuaded that the father presents an unacceptable risk to the children. It follows that any change in the children's residence to the father is safe.
2. The evidence shows that the children are at risk from the mother's behaviour. The mother has struggled with her mental health since the children were born. She has had psychiatric admissions. She has had extensive treatment for clinical depression. The mother has not always complied with her medication.
3. Dr W's evidence revealed that the mother finds it difficult to regulate her mood, emotions, emotional responses and has experienced constant thoughts of not wanting to live. He said the mother had difficulties undertaking parenting responsibilities.
4. Dr L's evidence is to the effect that in addition to her depressive illness the mother also shows borderline personality traits which pervades her approach towards contacting the father.
5. The evidence also revealed the mother is adversely affected by conspiracy theories.
6. The mother also displays hoarding behaviour. The mother in her evidence acknowledged her hoarding behaviour which included medications.
7. During the course of the trial the mother was given opportunities to show she is able to mitigate the risk of the harm she poses to the children, one being her willingness to participate in K Counselling Program. She refused to do so. Despite attempts by K Counselling Program coordinators to facilitate the programme to address the concerns the mother had regarding her safety in the presence of the father, she still refused to participate. Her refusal to do so revealed a poor attitude towards her willingness to overcome the crisis she is in.
8. None of the evidence before me revealed that the father is an unacceptable risk to the children. Fourteen reports regarding DFFH's involvement between 2011 to 2024 have been prepared revealing no ongoing issues relating to any member of this family. The mother has also given evidence that she never witnessed the father being violent towards the children.
9. Conversely, I am of the view the children are not safe in the mother's care. No such conclusion can be reached about the father.
10. Section 60CC(2)(b) requires me to consider any views expressed by the children. Each child said he and she does not wish to live with the father. The daughter last saw her father in 2023 when she ran away from home. She said she does not want a meaningful relationship with her father. The daughter has said she disliked attending at the father's home and that she did not want anything to do with him. The evidence points to the children wanting to remain with the mother. The son has not seen the father since mid-2024. The son holds similar views as the daughter. In my view the children's resentment towards the father was exacerbated by the mother's conduct. Dr G and Ms B both suggested that under the current circumstances of enmeshment with the mother, the children's views should be accorded little weight.[234] Dr G submitted that when people form a fixed belief that is unshakable and which becomes infused in the children, the children act as though those feelings are the children's own. He said such conduct then that justifies their behaviour perpetuated by what is a most profoundly dysfunctional situation.[235] That view was also adopted by Ms T.[236] The views of the children do not predominate in any formulation of orders that represent the best interests of the children. Therefore even though I have considered s 60CC(2)(b), I am required to additionally consider the other subsections of s 60CC.
11. Section 60CC(2)(c) requires me to consider the developmental, psychological, emotional and cultural needs of the children. That consideration is important given Dr G's evidence that the children are at risk of suicide. The children are at risk if the current state of affairs remains unaltered. The need to craft orders to protect the children's development is crucial. The children are young and have already endured turmoil. As the medical evidence reveals, the mother poses an unacceptable risk to the children. The mother has not addressed her own trauma and therefore poses a psychological and emotional risk to the children. She is unable to prioritise the needs of the children. The children will continue to have poor mental health, high levels of anxiety and stress unless the orders sought by the father on residence are made.
12. The mental health of the daughter is particularly alarming. In 2024 the daughter self-harmed and has been prescribed antidepressants since early 2023.
13. The son has a neurodivergent condition that requires ongoing support.
14. The family report writer recommended that the children undertake psychiatric assessment in 2023. That was not followed by the mother who had the care of the children at the time.[237]
15. The children, regardless of where they live will require ongoing psychological assistance and I am not convinced the mother will promote that.
16. In mother's care the children continue to experience high levels of stress. The children's levels of distress are not improving. That is attributable at least in part to the mother's conduct towards the children.
17. I have considered the psychological and emotional effects that a change of residence order will have on the children. I am of the view the risks associated with leaving the children in the mother's care outweigh the risks associated with ordering a change of residence. I am also of the view the father will ensure the required supports are in place to counsel the children so they adjust to their new living arrangements.
18. Ms B said that if the children stay in the mother's care it could be dangerous for their ongoing mental health. Her evidence should be accepted which I do. I consider the children's developmental, psychological, emotional and cultural needs will be better advanced by them living in the father's care.
19. Section 60CC(2)(d) requires me to address the capacity of each person who has or who is proposed to have parental responsibility. Both parties are seeking sole parental responsibility and live with orders. In my opinion, the father demonstrates the capacity to adequately care for the children. The mother does not. The children should live with the father.
20. While the children have been in the mother's care, the daughter was prescribed anti-depressants and was put on a mental health care plan. That information was not passed on to the father. Ms B in her evidence said it can be dangerous for one parent to not be informed of a child's mental state.
21. I do not accept the mother's evidence that she is the victim of physical violence at the hands of the father. Mr Werner conceded that there was no evidence to support the mother's allegations, especially allegations of rape.
22. Mr Werner submitted that the mother maintains a rigid identity as being a victim at the hands of the father. So much was evident from her presentation in the witness box. Mr Werner submitted that it is inconceivable there will be any change in that in the near future.
23. Mr Werner conceded that the mother is unlikely to undertake therapy of the kind contemplated by Dr L to assist her in managing her personality vulnerabilities. Mr Werner submitted that it is more probable that the mother takes comfort from a therapeutic environment in which her identity as a victim is left unchallenged.
24. Mr Werner submitted that the mother is of the view that she and the children are victims of family violence and that her view is unshakable.[238]
25. Mr Werner submitted that I cannot find the mother's refusal to participate in K Counselling Program is unreasonable unless I positively reject her allegations of rape. I find that the rape did not occur as alleged. There is no sufficient evidentiary basis to make such a finding and certainly not to a Briginshaw standard.[239]
26. The evidence points to the mother being unable to put the needs of the children first. The mother's attitude towards K Counselling Program is a good illustration. Participation in K Counselling Program, ordered by consent in July 2024, was not supported by the mother who failed to attend the first scheduled interview and she took the children to the BB Show instead.
27. The mother informed the K Counselling Program therapist that she was not willing to participate in it if she was to be in the same room as the father. During the trial I gave the mother an opportunity to reconsider her attitude. She informed me that her position had not changed despite hearing the medical evidence that the future of the children was catastrophically poor. That revealed that the mother was not able to put her feelings about the father to one side for the benefit of the children. Leaving the children in the mother's care represents an order for them to remain with a parent who is unable to promote their children's developmental, psychological, emotional and cultural needs. I am not convinced the mother has the capacity to adequately care for the children.
28. I am of the view the father has the capacity to adequately care for the children. The father does not present with the same risks the mother presents.
29. Section 60CC(2)(e) requires me to consider the benefit to the children being able to have a relationship with each of the child's parents and other people who are of significant to the child when it is safe to do so. The words "when it is safe to do so" are critical to the construction of the subsection. Whatever benefit may inure in the benefit to the children in being able to have a relationship with the child's parents is subject to the phrase "when it is safe to do so". In other words, only when it is safe for the child to have a relationship with a parent is the court required to consider the benefit to the child of being able to (inferentially, have) a relationship with the child's parents. I am of the view that the children will greatly benefit from having a relationship with the father. As the evidence demonstrated, the father in my view does not demonstrate risk to the children. He is stable and will be able to provide for the children in a variety of ways. The children are likely to benefit from having a stronger relationship with the father as he has the ability to put the needs of the children first. The children are at a high risk of experiencing self-destructive behaviour, substance abuse disorders and relationship problems if they remain in the mother's care.
30. The children need to have a relationship with the mother. I make orders in accordance with the ICL's proposals. The mother will have staggered supervised and unsupervised time with the children after the moratorium expires.

1. It is appropriate to make orders for the children to commence living with the father and for a change of residence order to immediately commence. I order a moratorium period of sixteen weeks during which the children will spend no time with the mother and will have no contact with the mother.
2. I order a moratorium period of sixteen weeks from today's date. That period is long enough to ascertain whether these orders are in fact workable and to give the children and the father the opportunity to re-establish a relationship.
3. During the trial of this proceeding Ms B recommended a six-month moratorium which was supported by the father and the ICL. Ms B in her evidence said that the children are highly distressed and they are so entrenched with the mother that it may require more than three months for the moratorium to be effective. Her views were a moratorium period of between three to six months. Ms B's evidence was that only at the three-month period will the children accept the change. In more severe cases such as this one Ms B said that in three months, acceptance may be evident so if there were to be problems with the other parent disrupting that relationship, then her recommendation would be that the moratorium period be longer and the six months would reinforce the work that would be done by the parties.
4. The father submitted that orders for the moratorium period should be made.
5. I tested counsel for the father on the length of the moratorium period. Final orders are required in this case given the mental health of the children and the need for stability in their lives.
6. The ICL submitted that the moratorium period should be open and a fixed date should not be ordered but rather a review by a specialist be conducted. I decline this suggestion.
7. Mr Baume also submitted that I make orders for the ICL to remain in this case for at least 12 months which I so order.
8. The children resent the idea of spending long periods of time let alone living with the father. It is foreseeable that the children will not settle in the father's care and that such a change will be traumatic or distressing for them. The children have spent minimal time with the father over the past few years therefore the transition from the current state of affairs to what I order will undoubtedly be contrary to the children's wishes.
9. I am of the view that the children need the time, space and opportunity to heal and to re-establish a relationship with the father. It is in their best interests to have a close relationship with the parent who is stable, who deeply wants to rebuild a relationship and who wants to be there for the children. That will benefit the children in the immediate future and in the long term. I am of the view that a sixteen week moratorium is satisfactory in order to best achieve these objectives.

FINDINGS ON PARENTAL RESPONSIBILITY, LIVE-WITH ARRANGEMENTS AND TIME

1. The best interests of the children are promoted by the father having sole parental responsibility for the children. The father in my view will act protectively towards the children, endeavouring to shield them from further harm. The same cannot be said of the mother.
2. The mother is not child-focused and she is not equipped with the requisite insight to be allocated sole parental responsibility. The mother does not possess the ability to adequately care for the children.
3. I am of the view that a change of residence order should be made with a moratorium period of sixteen weeks to allow the children to rebuild a relationship with the father.
4. The time with the mother shall commence after the moratorium period expires in accordance with the ICL's recommendations.

1. This case required an urgent response to the children's downward spiral and the need to set the children on the correct trajectory to give them the best opportunity to experience positive mental health and a fulfilling life in the future. A change of residence and moratorium order will be a major change for the children. However, I am of the view that such orders are in the best interests of the children. After considering all of the evidence and for the reasons expressed I am of the view that orders should be made in line with the father and the ICL. I pronounce the orders at the beginning of these reasons.

1. In view of the urgency of the pronouncement of orders on parenting and having regard to the poor preparation and presentation of the parties' applications under s 79 of the Family Law Act it is impossible to presently make orders that are just and equitable so I have decided to hold over the pronouncement of final orders on property. I direct that the parties (other than the ICL) appear before me at 10.00am on 14 August 2025.

I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

[1] Transcript 26 November 2024, page 541 lines 4 - 28, page 583 line 35, page 586 lines 7 - 9, page 595 lines 1 -4 & transcript 27 November 2024, page 613 lines 16 - 19.

[2] Transcript 26 November 2024, page 541 line 9.

[3] Transcript 26 November 2024, page 585 lines 26 - 35 & page 587 lines 31 - 45.

[4] Transcript 19 November 2024, page 121 line 12, transcript 20 November 2024, page 240 lines 31 - 36, page 246 lines 1 - 16, page 248 lines 40 - 45, page 249 1 - 27, page 250 lines 5 - 8, & page 253 lines 15 - 16.

[5] Transcript 19 November 2024, page 93 lines 5 - 8 & page 109 lines 1 - 26.

[6] Transcript 21 November 2024, page 301 line 33.

[7] Transcript 25 November 2024, page 528 lines 10 - 15, transcript 26 November 2024, page 559 lines 43 - 47 & page 560 lines 1 - 25.

[8] Transcript 27 November 2024, page 659 lines 23 - 34.

[9] Transcript 26 November 2024, page 597 lines 14 - 15.

[10] Transcript 19 November 2024, page 108 lines 40 - 42.

[11] Transcript 18 November 2024, page 62 line 17.

[12] Transcript 20 November 2024, page 252 line 41 & transcript 27 November 2024, pages 621 lines 23 - 41.

[13] Transcript 18 November 2024, page 46 lines 6 - 23.

[14] Transcript 19 November 2024, page 89 lines 1 - 44.

[15] Transcript 19 November 2024, page 124 lines 7 - 15.

[16] Transcript 26 November 2024, pages 585 - 587.

[17] Transcript 21 November 2024 page 301 line 25.

[18] Transcript 21 November 2024 page 301 lines 30 - 31.

[19] Transcript 20 November 2024, page 212 lines 14 - 47.

[20] Transcript 22 November 2024, page 391 lines 3 - 47 ([Dr OO] acknowledged that this was not usually best practice).

[21] Transcript 19 November 2024, page 126 lines 27 - 44 & page 127 lines 35 - 36.

[22] Transcript 18 November 2024, page 62 lines 8 - 10, transcript 19 November 2024, page 110 lines 36 - 37 & transcript 20 November 2024, page 270 lines 5 - 11.

[23] Transcript 19 November 2024, page 102 lines 2 - 5.

[24] Transcript 25 November 2024, page 527 lines 12 - 13.

[25] Transcript 25 November 2024, page 527 line 30.

[26] Transcript 28 November 2024, page 12 lines 13 - 14.

[27] Transcript 20 November 2024, page 223 lines 25 - 46.

[28] Transcript 20 November 2024, page 224 lines 21 - 25.

[29] Transcript 20 November 2024, page 224 line 41.

[30] Transcript 19 November 2024, page 82 lines 35 - 37 & page 85 line 38.

[31] Transcript 19 November 2024, page 124 line 7 - 10.

[32] Transcript 26 November 2024, page 566 line 26 & page 566 line 32.

[33] Transcript 26 November 2024, page 566 line 32.

[34] Transcript 21 November 2024, page 309 lines 17 - 29 & transcript 27 November 2024, page 623 lines 40 - 41.

[35] Transcript 26 November 2024, page 543 lines 16 - 26.

[36] Transcript 26 November 2024, page 563 lines 41 - 43.

[37] Transcript 27 November 2024, page 622 lines 8 - 20 & page 636 line 36 - 37.

[38] Transcript 19 November 2024, page 138 lines 20 - 24 & transcript 21 November 2024, page 314 lines 21 - 32.

[39] Transcript 19 November 2024, page 136 line 31.

[40] Transcript 25 November 2024, page 520 lines 19 - 22 & transcript 27 November 2024, page 622 lines 19 - 20.

[41] Transcript 20 November 2024, page 231 lines 24 - 32.

[42] Transcript 25 November 2024, page 512 lines 19 - 20 & page 512 lines 40 - 42.

[43] Transcript 25 November 2024, page 512 lines 40 - 42.

[44] Transcript 26 November 2024, page 571 lines 16 - 17.

[45] Transcript 26 November 2024, page 571 line 17.

[46] Transcript 26 November 2024, page 542 lines 26 - 30.

[47] Transcript 10 February 2025, page 734 line 25.

[48] Transcript 10 February 2025, page 740 lines 26 - 29.

[49] Transcript 28 November 2024, page 6 lines 6 - 7.

[50] Transcript 27 November 2024, page 659 lines 41 - 44.

[51] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[52] Transcript 18 November 2024, page 46 lines 6 - 16 & page 47 lines 4 - 6.

[53] Transcript 20 November 2024, page 261 lines 13 - 18.

[54] Transcript 20 November 2024, page 263 lines 14 - 15.

[55] Transcript 18 November 2024, page 74 lines 28 - 31.

[56] Transcript 12 February 2025, page 908 lines 18 - 19.

[57] Transcript 12 February 2025, page 908 lines 21 - 22 & lines 33 - 34.

[58] Transcript 12 February 2025, page 908 lines 36 - 37.

[59] Transcript 12 February 2025, page 908 line 41.

[60] Transcript 12 February 2025, page 909 lines 11 - 29.

[61] Transcript 14 February 2025, page 1076 lines 33 - 39.

[62] Transcript 12 February 2025, page 908 lines 45 - 47.

[63] Transcript 14 February 2025, page 1054 lines 30 - 37.

[64] Transcript 14 February 2025, page 1055 lines 25 - 37.

[65] Transcript 14 February 2025, page 1070 lines 36 - 43.

[66] Transcript 12 February 2025, page 916 line 29.

[67] Transcript 12 February 2025, page 915 lines 38 - 43.

[68] Transcript 12 February 2025, page 918 lines 30 - 32.

[69] Transcript 14 February 2025, page 1061 lines 13 - 38.

[70] Transcript 14 February 2025, page 1062 lines 22 - 30.

[71] Transcript 12 February 2025, page 927 lines 12 - 29.

[72] Lehrmann v Network Ten Pty Ltd [2024] FCA 369.

[73] Transcript 13 February 2025, pages 1013 - 1015 lines 37 - page 1015 line 9.

[74] Transcript 13 February 2025, pages 1030 - 1031 lines 31 - 11.

[75] Galea v Galea (1990) 19 NSWLR 263.

[76] [2011] HCA 11; (2011) 243 CLR 361.

[77] Those were the words used in his viva voce evidence.

[79] He said she was then 48 making her 41 when the presentation first emerged.

[81] Transcript 7 March 2025, page 1260 lines 18 - 24.

[82] Transcript 7 March 2025, page 1261 lines 16 -19.

[83] Transcript 7 March 2025, page 1262 lines 2 - 7.

[84] Transcript 7 March 2025, page 1282 lines 1 - 12.

[85] Transcript 7 March 2025, page 1265 lines 4 - 6.

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[87] Transcript 7 March 2025, page 1265 lines 40 - 42.

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[89] Transcript 7 March 2025, page 1266 lines 33 - 42.

[90] Transcript 7 March 2025, pages 1270 - 1271 lines 42 - 8.

[91] Transcript 7 March 2025, page 1271 lines 33 - 34.

[92] Transcript 7 March 2025, page 1276 lines 3 - 22.

[93] Transcript 7 March 2025, page 1284 lines 25 - 33.

[94] Transcript 7 March 2025, page 1285 lines 13 -17.

[95] Transcript 7 March 2025, page 1290 lines 30 - 43.

[96] Transcript 10 February 2025, page 762 line 36.

[97] Transcript 10 February 2025, page 762 lines 39 - page 763 line 24.

[98] Transcript 10 February 2025, page 764 lines 25 - 29.

[99] Transcript 10 February 2025, page 764 line 36 - 40.

[100] Transcript 10 February 2025, page 765 lines 12 - 13.

[101] Transcript 10 February 2025, page 765 line 36.

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[103] Transcript 10 February 2025, page 767 lines 38 - 39.

[104] Transcript 10 February 2025, page 768 lines 20 - 21.

[105] Transcript 10 February 2025, page 768 lines 42 - 43.

[106] Transcript 10 February 2025, page 769 lines 11 - 13.

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[108] Transcript 10 February 2025, page 770 lines 46 - 47.

[109] Transcript 10 February 2025, page 772 lines 15 - 18.

[110] Transcript 10 February 2025, page 789 line 22.

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[113] Transcript 10 February 2025, page 777 lines 34 - 35.

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[121] Transcript 10 February 2025, page 762 lines 29 - 34.

[122] Transcript 10 February 2025, page 762 line 36.

[123] Transcript 10 February 2025, page 764 lines 36 - 37.

[124] Transcript 10 February 2025, page 764 lines 38 - 40.

[125] Transcript 10 February 2025, page 767 lines 14 - 17.

[126] Transcript 10 February 2025, page 767 lines 22 - 23.

[127] Transcript 10 February 2025, page 769 lines 24 - 27.

[128] Transcript 10 February 2025, page 770 lines 8 - 9.

[129] Transcript 10 February 2025, page 772 lines 16 - 18.

[130] Transcript 10 February 2025, page 772 lines 30 - 32.

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[133] Transcript 10 February 2025, page 776 lines 42 - 46.

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[137] Transcript 10 February 2025, page 789 lines 37 - 40.

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[148] Transcript 10 February 2025, page 793 lines 36 - 37.

[149] Transcript 10 February 2025, page 794 lines 13 - 14.

[150] Transcript 3 March 2025, page 1160 lines 4 - 31.

[151] Transcript 3 March 2025, page 1161 lines 35 - 41.

[152] Transcript 3 March 2025, page 1162 lines 28 - 31.

[153] Transcript 3 March 2025, page 1175 lines 25 - 28.

[154] Transcript 3 March 2025, page 1163 lines 9 - 42.

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[156] Transcript 3 March 2025, pages 1164 - 1165 lines 41 - 43.

[157] Transcript 3 March 2025, page 1166 lines 28 - 38

[158] Transcript 3 March 2025, page 1170 lines 41 - 46.

[159] Transcript 3 March 2025, page 1172 lines 13 - 16.

[160] Transcript 3 March 2025, pages 1175 - 1176 lines 45 - 4.

[161] Transcript 4 March 2025, page 1186 lines 15 - 26.

[162] Transcript 4 March 2025, page 1187 lines 39 - 43.

[163] Transcript 4 March 2025, page 1188 lines 4 -14.

[164] Transcript 4 March 2025, page 1188 lines 15 - 37.

[165] Transcript 19 November 2024, page 178 lines 38 - 40.

[166] Transcript 19 November 2024, page 178 line 44.

[167] Transcript 19 November 2024, page 179 lines 1 - 4.

[168] Transcript 19 November 2024, page 179 lines 37 - 40.

[169] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, Honeysett v The Queen (2014) 253 CLR 122 and Lang v The Queen [2023] HCA 29; (2023) 278 CLR 323.

[170] Transcript 25 November 2024, page 490 lines 38 - 42

[171] Transcript 21 November 2024, page 337 lines 16 - 17.

[172] Transcript 21 November 2024, page 337 lines 13 - 30.

[173] Transcript 21 November 2024, page 339 lines 5 - 14.

[174] Transcript 21 November 2024, page 338 lines 36 - 38.

[175] Transcript 21 November 2024, page 341 lines 32 - 47.

[176] Transcript 21 November 2024, page 345 line 23 & page 346 lines 13 - 17.

[177] Transcript 21 November 2024, page 341 lines 46 - 47.

[178] Transcript 21 November 2024, page 345 line 15.

[179] Transcript 21 November 2024, page 351 lines 6 - 10.

[180] Disturbing events told to her as "the long ordeal" was hyperbole.

[181] The writer seems to have accepted that information as an undisputed fact.

[182] Reference to 70% custody is meaningless. Custody is not a concept nowadays in family law.

[183] The report writer was not able to say that of her own knowledge yet [Ms NN] did not narrate that the mother said that to her.

[184] That was a matter for me and had no place in an expert's report.

[185] The report writer was unable to say that of her own knowledge without revealing the source of her knowledge

[186] This was a construction of information passed to [Ms NN] presumably by the mother and passed off by [Ms NN] as expert evidence, which it was not.

[187] Transcript 22 November 2024, page 411 lines 32 - 35.

[188] Transcript 22 November 2024, page 413 line 17.

[189] Transcript 22 November 2024, page 412 lines 8 - 41.

[190] Transcript 22 November 2024, page 413 lines 19 - 25.

[191] Transcript 22 November 2024, page 418 lines 29 - 38.

[192] Transcript 22 November 2024, pages 419 - 420 lines 15 - 16.

[193] Transcript 22 November 2024, page 438 lines 19 - 29.

[194] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, Honeysett v The Queen (2014) 253 CLR 122 and Lang v The Queen [2023] HCA 29; (2023) 278 CLR 323.

[195] Transcript 14 February 2025, pages 1090 - 1091 lines 44 - 46.

[196] Transcript 14 February 2025, page 1091 lines 9 - 11.

[197] Transcript 14 February 2025, page 1093 lines 11 - 20.

[198] Transcript 14 February 2025, page 1093 lines 30 - 39.

[199] Transcript 14 February 2025, page 1094 lines 9 - 12.

[200] Transcript 14 February 2025, page 1096 lines 32 - 37.

[201] Transcript 14 February 2025, page 1097 line 4.

[202] Transcript 14 February 2025, pages 1096 - 1097 lines 47 - 1 & page 1102 lines 42 - 44.

[203] Transcript 14 February 2025, pages 1112 - 1113 lines 32 - 39.

[204] Transcript 14 February 2025 page 1102 lines 17 - 18.

[205] Transcript 14 February 2025, page 1102 lines 20 - 23.

[206] Transcript 14 February 2025, page 1102 lines 31 - 32.

[207] Transcript 14 February 2025, pages 1102 - 1103 lines 46 - 2.

[208] Transcript 14 February 2025, page 1102 lines 34 - 36.

[209] Transcript 14 February 2025, page 1103 lines 12 - 21.

[210] Transcript 6 March 2025, page 1210 lines 34 - 35.

[211] Transcript 6 March 2025, page 1210 lines 35 - 38.

[212] Transcript 6 March 2025, page 1210 lines 38 - 39.

[213] Transcript 6 March 2025, page 1213 lines 20 - 28.

[214] Transcript 6 March 2025, page 1213 lines 26 - 28.

[215] Transcript 6 March 2025, page 1217 lines 12 - 13.

[216] Transcript 6 March 2025, page 1217 lines 43 - 46.

[217] Transcript 22 November 2024, page 377 lines 25 - 26.

[218] Transcript 22 November 2024, page 379 lines 44 - 46.

[219] Transcript 22 November 2024, page 402 lines 16 - 18.

[220] Transcript 22 November 2024, page 404 line 45 - 46.

[221] Transcript 22 November 2024, page 408 lines 29 - 30.

[222] Transcript 22 November 2024, page 376 lines 4 - 5.

[223] Transcript 20 November 2024, page 193 line 46.

[224] Transcript 20 November 2024, page 194 lines 10 - 11.

[225] Transcript 20 November 2024, page 194 line 24.

[226] Transcript 20 November 2024, page 194 lines 43 - 44,

[227] Transcript 20 November 2024, pages 194 - 195 lines 48 - 3.

[228] Transcript 20 November 2024, page 195 lines 16 - 25.

[229] Transcript 20 November 2024, page 196 lines 42 - 45.

[230] Transcript 20 November 2024, page 197 lines 10 - 15.

[231] Transcript 20 November 2024, page 198 lines 18 - 19.

[232] [2022] FedCFamC1A 119; (2022) 65 Fam LR 461.

[233] Isles v Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288.

[234] Transcript 7 March 2025, page 1277 lines 14 & 15.

[235] Transcript 14 February 2025, page 1100 lines 17 - 20.

[236] Transcript 3 March 2025, page 1161 lines 35 - 40

[237] See ICL 16 Family Report writer Ms B second report in July 2023.

[238] Transcript 14 February 2025, page 1112 line 24.

[239] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.