Cassell & Kolar (No 10) [2025] FedCFamC1F 912 (16 December 2025)

1. The proceedings are primarily comprised of competing applications for parenting orders in relation to the child of the parents' short relationship, X, born in 2018, who was 7.5 years of age at the conclusion of the trial. The applicant mother also seeks orders for alteration of interests in property, which is opposed by the respondent father. Further, the respondent father seeks a harmful proceedings order pursuant to s 102QAC of the Act and the discharge of an interim order made on 28 October 2019 for the payment by him of spousal maintenance to the mother, which order was suspended on 10 March 2021. The parenting orders, as well as the harmful proceedings order, sought by the father are supported, and jointly sought, by the Independent Children's Lawyer.
2. The mother, Ms Cassell, was born in 1984 and she is presently 41 years of age. The father, Mr Kolar, was born in 1979 and he is presently 46 years of age. The parents commenced cohabitation in 2016 and they were married in 2017. They separated finally on 28 September 2018, when the child was nine months of age. These proceedings were initiated by the mother in May 2019 and, therefore, they have been extant for most of the child's life.
3. On 10 March 2021, orders were made by a Senior Judicial Registrar, which were subsequently modestly, but not relevantly, amended on 13 May 2021, which provided, inter alia, that, until further order, the father have sole parental responsibility (as it was then termed) for the child; that she live with him; and that she spend professionally supervised time with the mother twice weekly, for up to three hours on each occasion, at the cost of the father in the first instance ("March 2021 interim orders").
4. On 4 February 2022, I made orders further amending the March 2021 orders to provide that the mother's professionally supervised time with the child be supervised by such supervisor as was nominated by the Independent Children's Lawyer and, in the event the parents were unable to reach agreement in relation to the funding thereof, then it was to occur at a community supervision centre nominated by the Independent Children's Lawyer.
5. In the ensuing 4.5 years since the making of the March 2021 interim orders, the child has lived with the father and, since late 2022 / early 2023, the mother has not spent any professionally supervised ordered time with her. Rather, at times, she arrogated to herself, albeit in the absence of any orders, a right which she did not have, namely, to see the child by attending at her school and extra-curricular activities. An end was put to this by an interim invention order made in the Magistrates' Court of Victoria at Suburb BB on 1 November 2023, against the mother, and in favour of the father and the child, restraining the mother, inter alia, from going to or remaining within 200 metres of any place at which the child lives or attends school (Exhibit H-11). The final hearing of that intervention order application awaits the outcome of this trial. Otherwise, the mother has had some electronic communication with the child pursuant to the March 2021 interim orders. In summary, the mother has spent negligible physical face-to-face time with X in 2.5 years, notwithstanding orders that enabled her to do so, albeit with professional supervision, at which she took umbrage.
6. The sorry history of these proceedings for which, despite the contention of the mother to the contrary, neither the Court nor the father or the Independent Children's Lawyer is at fault, has been recited in several of my previous interlocutory judgments and does not bear repeating in any detail.
7. The trial of the proceedings commenced on 29 August 2022 and an adjournment was necessitated on 31 August 2022, when the mother, who was under cross-examination, lost her legal representation appointed by Victoria Legal Aid by reason of an order pursuant to s 102NA of the Act that has previously been made. The part-heard trial was adjourned to 17 April 2023.
8. On 7 February 2023, an email from Victoria Legal Aid was received by my chambers advising as follows (omitting formal parts):

...

We are writing in relation to the below matter regarding representation for [Ms Cassell].

We confirm that VLA allocated this matter to [W Lawyers] on 20 December 2022 after the matter was previously allocated to [Y Lawyers] and [N Lawyers] however [Ms Cassell] has continuously refused to accept the allocated solicitor and will not engage with [W Lawyers].

We note that we have also provided [Ms Cassell] with the option more than once to seek alternative representation for her matter, including providing the VLA panel list via email however, no alternative lawyer been nominated.

Given the history of this matter, issues with allocations due to capacity and [Ms Cassell]'s continued refusal to accept the most recent lawyer appointed by VLA, we advise that we will not be making any further arrangements for representation in [Ms Cassell]'s matter and will be closing our file.

...

1. On 9 March 2023, on evidence from the mother's treating psychologist, Mr D, but in the face of opposition from the mother (and, she contended, from Mr D too), an order was made for the appointment of a litigation guardian for her. That subsequently necessitated the part-heard trial, listed to resume the following month, being further adjourned.
2. A litigation guardian, Ms S, being a friend of the mother, was duly appointed by orders made on 17 May 2023.
3. The hearing of the part-heard trial finally resumed on 18 September 2023. Five days prior thereto, on 13 September 2023, the mother's litigation guardian filed an Application in a Proceeding, seeking that the resumption of the part-heard trial be adjourned. In her supporting affidavit sworn that day, and in submissions to the Court on 18 September 2023, the basis of the adjournment application was said to be, inter alia, that "[a] number of investigations remain[ed] underway into the allegations of family violence and matters related to the proceeding", including by the both the Family Violence Investigation Unit and the Sexual Offences and Child Abuse Unit of Victoria Police, the findings of which were said to be highly relevant to these proceedings; that the mother and her litigation guardian had been unable to secure legal representation; and that counsel for the mother, at the first tranche of the trial in 2022, had somehow hindered her right to procedural fairness, which was a constant refrain generally of the mother throughout these proceedings. The mother, by her litigation guardian, also sought, albeit from me, and sitting as a judge at first instance, that leave be granted to appeal the order I made on 9 March 2023, for the appointment of a litigation guardian. That application, as brought, was doomed to failure.
4. The Application in a Proceeding filed on 13 September 2023 was dismissed on 18 September 2023, prior to the luncheon adjournment, with reasons for judgment delivered ex-tempore. Shortly thereafter, during that adjournment, my chambers received an email from the litigation guardian at 1:38pm (Exhibit W-3) alleging that the mother had overheard Counsel for the Independent Children's Lawyer speaking disparagingly of her in the course of a phone call. This issue was also raised by the litigation guardian at the resumption of the hearing that afternoon. These allegations were largely denied by counsel for the Independent Children's Lawyer, who had been engaged in a private telephone conversation, out of earshot, or so he thought. The litigation guardian then sought leave to make an oral application to restrain counsel for the Independent Children's Lawyer from continuing to act, which was opposed by counsel for the father. Leave was refused, and I said that I would incorporate my reasons therefor into my reasons for judgment at the conclusion of the trial.
5. Leave to make an oral application that counsel for the Independent Children's Lawyer "withdraw or be removed" (transcript 19 September 2023, p.38 line 29), which was sought on the "grounds that he has demonstrated he's not independent... not impartial" (transcript 19 September 2023, p.38 line 34-35), was refused, inter alia, for lack of a proper foundation.
6. The specific duties of Independent Children's Lawyers are set out in s 68LA(5) of the Act as follows, namely, to:

(a) act impartially in dealings with the parties to the proceedings; and

(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

(c) if a report or other document that relates to the child is to be used in the proceedings:

(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court's attention; and

(d) endeavour to minimise the trauma to the child associated with the proceedings; and

(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

1. Despite failing to refer to these requirements in her application for leave, it appears that a breach of sub-s (5)(a) was alleged. Even if all the allegations of the mother and her litigation guardian were true, whilst unfortunate to have been so expressed by counsel for the Independent Children's Lawyer, counsel's comments were expressed by him in a private telephone conversation, which was (but should not have been) overheard by the mother. However, they do not rise to the level of a breach by him of the Independent Children's Lawyer's obligation to act impartially in dealings with the parties to a proceeding, as required by s 68LA(5)(a) of the Act. See Myron & Milson (No. 2) [2018] FamCA 1040.
2. Further, it is of concern that the mother sat idly by and listened to the duration of what was said, by counsel for the Independent Children's Lawyer, to be a nine minute long telephone call, without alerting counsel for the Independent Children's Lawyer that it could be heard through the walls of a conference room, and then thought it appropriate, after failing to act, to raise it as grounds for a withdrawal. In any event, it is entirely unclear how anything said by counsel, in the course of a private telephone conversation, which apparently ended with the words "I love you", could have detrimentally impacted upon the Independent Children's Lawyer's obligation to act impartially in dealings with the parties to the proceedings.
3. Immediately after leave to make an oral application was refused, the litigation guardian then sought to delay proceedings even further, by seeking to pursue yet another application, this time for a stay of proceedings, whilst she appealed (or, more properly, sought leave to appeal) orders previously made on 5 September 2023, by which I refused to recuse myself from the proceedings. When I made it clear that I could not, and would not, entertain such an application, on the basis that no notice of appeal, nor any application for a stay, had been filed, the litigation guardian then foreshadowed that she would be unable to continue acting as litigation guardian.
4. Upon the attempted resumption of the hearing of the part-heard trial, the litigation guardian then made it known that she had not been given access to the court book by the mother, nor had she ever seen subpoenas issued at the behest of the mother, which were the subject of Notices of Objection by the recipients thereof, which were returnable that day. The matter was stood down, in order to afford the litigation guardian sufficient time to familiarise herself with the relevant documents, which were provided to her by my chambers. Upon the resumption of the hearing, after 4.00 pm that day, the litigation guardian, as earlier foreshadowed, sought leave to withdraw as litigation guardian. In the circumstances, after a long and, no doubt, difficult day in Court for the litigation guardian, who was without legal representation, that oral application was adjourned to the following morning.
5. Unsurprisingly, the next day, on 19 September 2023, Ms S persisted with her application for leave to withdraw from her appointment as the mother's litigation guardian, which was granted. In the result, ultimately upon application by the father, supported by the Independent Children's Lawyer, the proceedings were struck out, with a right reserved to the mother to apply for reinstatement upon application within 12 months. Notwithstanding the mother's protestations, in closing argument, counsel for the father submitted, and in the circumstances, I accept, that the obfuscation by the mother, including by her litigation guardian, in September 2023, was, in fact, designed to avoid the resumption of cross-examination, which had briefly commenced in August 2022, and the further undermining of her case. The March 2021 interim orders, as amended, made some 2.5 years earlier, for the mother to spend professionally supervised time with X nevertheless remained on foot, albeit again not availed of by her thereafter.
6. Somewhat prophetically, in the result, , counsel for the father submitted that day:

... But she has agitated a sub-threshold position, that is:

I'm well enough to conduct the proceedings, but just not today, or for the next period, because of my PTSD symptoms being exacerbated.

And essentially, what [Ms Cassell] should be on notice about is that she can't pick and choose her mental health to rely upon in terms of running these proceedings and having procedural hearings, or substantive hearings, adjourned because of a temporary, if not permanent, incapacity to run.

(Transcript 19 September 2023, p.83 lines 4-13)

1. Nearly 11 months thereafter, on 7 August 2024, the mother made an application to reinstate the proceedings, which was granted on 20 December 2024.
2. On 27 February 2025, orders and directions were made for the resumption of the trial on 14 July 2025, for no more than five days. In order to assist the mother, who remained under cross-examination since August 2022, and who said she wished to retain legal representation, I ordered (at Order 3) that:

The Applicant Mother be at liberty to confer with lawyers (solicitors and counsel), for the purpose of retaining and instructing them in relation to the resumption of the part-heard trial regarding any matter related to the proceedings notwithstanding that she is under cross examination and the Court notes that the Respondent Father, through his lawyer this day, has advised the Court and the Applicant Mother that he consents to her so doing for the purposes of r 26.1.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015.

(Emphasis in original)

The Applicant Mother has advised the Court that she does not seek the discharge of the discretionary s 102NA order made on 18 January 2022 and that she understands that she will therefore be unable to cross examine the Respondent Father in person if she is not legally represented at the resumption of the trial on 14 July 2025.

1. The mother sought leave to appeal those Orders. Her application for leave to appeal was heard and dismissed by the Full Court on 3 July 2025.

1. At the commencement of resumption of the part-trial on Monday, 14 July 2025, I raised with the parties whether there had been any intervening events since 27 February 2025 which might have rendered the prohibition on cross-examination mandatory, rather than discretionary, as noted in the orders made on 27 February 2025. Whilst the mother asserted that the prohibition on cross-examination was, in fact, mandatory, rather than discretionary, she made it clear that, even if the prohibition were discretionary, she would not seek and, indeed, she would oppose, any discharge thereof. I again reminded her of the caution to her in Notation A of the Orders made on 27 February 2025.
2. The mother sought that the matter be stood down in order to enable her to confer with a duty lawyer. She refused to identify what material she, as the applicant, relied upon until she had spoken to the duty lawyer, stating that she was not "legally equipped to do so". In the circumstances, the matter was stood down until 11am.
3. When Court resumed, the mother said that she had been unable to speak with a duty lawyer, due to an alleged, but entirely unparticularised, "conflict of interest", and she sought that the matter again be stood down until she had done so. She was unable to articulate at what point she considered that the hearing might be able to resume - whether that day or on any subsequent day that week or even thereafter. She was entirely non-responsive and uncooperative, merely repeating, ad nauseum, that she needed legal advice. In many, if not most, other cases involving a litigant in person, such a request (albeit that, in this case, it was more in the nature of a demand on the part of the mother) might not only be reasonable and proper but, in fact, desirable. However, in this case, that was not so. Despite counsel for the father and the Independent Children's Lawyer informing the Court and the mother that, albeit under cross-examination, they did not object to her obtaining legal advice, she asserted that she could not retain legal representation because she was under cross-examination, notwithstanding Order 3 of the Orders made on 27 February 2025.
4. Given the history of this matter, in particular, that it had been part-heard for nearly three years; that it was listed to resume (by reason of the mother's own successful application) on Monday, 14 July 2025, and to conclude within five days that week; and that she had been aware of the impending resumption of the trial that week for over four months, during which time she had been granted leave to confer with lawyers, notwithstanding that she was under cross-examination, I refused to stand the matter down any further. I told her that, although self-represented, she was under cross-examination and that, in circumstances where she was unrepresented, I would ensure that the guidelines in Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 were followed.
5. I again proposed to discharge the discretionary s 102NA order, to enable the mother to cross-examine the father; however, this continued to be opposed by her, stating (or vainly threatening) that, if I did so, she would immediately seek leave to file a stay application.
6. I was subsequently advised by counsel for the father and the Independent Children's Lawyer, albeit from the Bar table, that the mother, in fact, had been referred to speak by telephone with a solicitor, in Bendigo. She then conceded that she had done so but asserted that she was unable to obtain any legal advice from that solicitor. I take that issue no further in this regard.
7. This is not a case where, on 14 July 2025, the mother attended at Court unrepresented, for the first time, or where she had lost her legal representation in recent days. It would appear that she has not been legally represented since late 2022 / early 2023, at the latest. Indeed, the most recent Notice of Address for Service was filed by the mother herself, on 5 September 2022. A review of the Court file discloses that the mother appeared self-represented on approximately two dozen occasions between 11 September 2020 and 5 June 2025. Further, she appeared self-represented before the Full Court on 3 July 2025, at the hearing of her application for leave to appeal my orders made on 27 February 2025. She had known of the date for the resumption of the trial since then, for over four months. Although not legally trained, she is no stranger to litigation in this Court, having represented herself previously before me confidently and forcefully, and having referred to legislation and case law, even if misguidedly so.
8. Notwithstanding my refusal to stand the matter down any further, counsel for the father and the Independent Children's Lawyer sensibly and, indeed, generously, informed the mother, and the Court, that they would have no objection to her communicating with a lawyer outside of Court hours, including during the luncheon adjournment, albeit whilst in the course of cross-examination. She refused that offer and refused to return to the witness box to resume cross-examination. I warned her repeatedly that day of the consequences if she refused to allow her evidence to continue to be tested, namely, that I would give it little, if any weight.
9. I asked the mother again to identify what evidence she would be relying upon, and which witnesses she would be calling for cross-examination, to which she responded she did not have capacity to answer even that straight-forward question. Albeit that she denied doing so, she also refused to identify which of the father's witnesses she sought to cross-examine and to advise if she sought to cross-examine the Family Report Writer. She asserted that there was no refusal on her part but, rather, that she could or would not do so without legal representation.
10. This request to the mother ought not to have been unexpected by her. A week earlier, by email to her dated 7 July 2025, the father's solicitors stated (omitting formal parts):

...

We are presently collating a Supplementary Court Book to be provided to Chambers by 4pm on Wednesday. We note that that original Court Book contained copies of three DFFH Responses, in circumstances where [Ms Cassell] was then legally represented.

May we please have a direction as to whether, as [Ms Cassell] is presently self-represented, the original Court book link including the DFFH Responses is to be circulated to all parties?

...

1. However, the mother alleged, from the Bar table, that her email account had been "hacked" between 6 and 8 July 2025 and that access to that email had been "difficult".
2. That the mother was no stranger to self-representation was confirmed and manifested by the fact that, during the luncheon adjournment on Monday, 14 July 2025, she filed a typed, three-page submission, sealed at 1.38 pm, in which she addressed matters that had transpired over the course of the morning. It is a dense document, in 12-point font, with 1.15 line spacing. Court had adjourned for the morning at 12.33 pm that day.
3. Accordingly, in the space of one hour and five minutes, between 12.33 pm-1.38 pm, the self-represented mother was able to prepare that document, in which she referred, inter alia, to a number of cases, both of this Court and the High Court; to provisions of the Disability Discrimination Act 1992 (Cth) and the Family Law Act 1975 (Cth); to the UN Convention on the Rights of Persons with Disabilities; to the Family Court's Family Violence Best Practice Principles (2020); and to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("Rules").
4. In those written submissions, the mother made a number of assertions, without foundation.
5. Insofar as she asserted (at paragraph 1) that she had "been subjected to cross-examination over a period of years with no legal protection", that was, at best, misconceived. Although her cross-examination remained incomplete, she had only been cross-examined on 29 and 30 August 2022, at which time she was represented by counsel and solicitor.
6. At paragraph 3, she asserted that:

My right to confidential and privileged legal advice has also been interfered with. When I attempted to speak with a duty lawyer, I was discouraged or dismissed by the court. That conduct violates my right to legal representation and breaches the principle of legal professional privilege.

1. That was manifestly not so; she had had the opportunity since, at the very least, 27 February (but, in fact, far longer) to obtain legal advice and representation. Similarly, she further asserted (at paragraph 13):

My right to consult a duty lawyer has been obstructed. When I attempted to speak with a legal representative, that right was either denied or discouraged. Such conduct interferes with my right to confidential legal advice and breaches legal professional privilege, a principle affirmed in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52.

(As per the original)

... I place on the record that I will not be returning to court today, under these unsafe and unlawful conditions. My statutory rights, and denial of my access to legal representation has been abused. I have been intimidated and subjected to prejudicial and volatile conduct from Justice Strum.

1. The transcript and the audio recording will confirm that not to be so.
2. Notwithstanding having advised the Court at 1.38pm that she would not be returning that day, she in fact did so, and she remained at the Bar table until 2.34 pm, when she briefly left the court room.
3. Further, she stated (at paragraph 6):

I reserve all of my rights, including the right to appeal any resulting orders and to lodge a formal complaint with the Chief Justice and the Judicial Commission for failure to provide a lawful, trauma-informed, and accessible process.

1. That was a matter for her.
2. The mother asserted (at paragraph 8):

I have been subjected to cross-examination over a period three years. This extended delay, combined with the lack of legal protection, has severely prejudiced my ability to participate in the proceedings fairly and safely. This constitutes a denial of natural justice.

1. That complaint was the subject, inter alia, of the mother's unsuccessful application for leave to appeal from the orders I made on 27 February 2025.
2. The mother stated (at paragraphs 15-16):
   1. I state that I am not in a position to safely or lawfully continue participating in these proceedings under the current conditions today or this week. Any further involvement would be under protest and duress, and I reserve all rights, including the right to appeal or file a judicial complaint.
   2. Accordingly, I seek that the proceedings be adjourned or stayed until:

(a) Legal representation is arranged in accordance with section 102NA;

(b) Reasonable accommodations are made in accordance with the Disability Discrimination Act;

(c) The Court ensures a fair, trauma-informed, and lawful process.

1. It is self-evident that, notwithstanding that the trial was part-heard since August 2022, for reasons entirely attributable to her, the mother was, at best, unable, but possibly unwilling, to inform the Court when the trial might resume.
2. Insofar as she sought (at paragraph 16(a)) that "the proceedings by adjourned or stayed until ... [l]egal representation is arranged in accordance with section 102NA", that would mean, on her view of the world, that the trial might never resume. Victoria Legal Aid cannot be ordered to provide, or to continue to provide, legal representation for her. As referred to above, having previously done so, Legal Aid Victoria refuses to do so any further.
3. Insofar as she asserted herself to have a "mental health and [sic] disability" (at paragraph 2) and a "trauma-related mental health condition" (at paragraph 10), and to have rights under the Disability Discrimination Act 1992, I was unable to find that to be so as at that time. Throughout these proceedings, she has often asserted herself to have such a condition or disability. However, that was not the basis upon which I ordered that a litigation guardian be appointed for her on 9 March 2023. Rather, it was because:
   • The mother's treating general medical practitioner, in a medical certificate dated 7 March 2023 produced to the Court reported that the mother's "Mental Health issue" then was that she suffered "severe panic attacks thinking of the proceedings" and that she might "need a lot of time to get fit Mentally [sic] to attend courts".
   • The mother's treating psychologist, Mr D, in a letter which the mother advised was provided to that general medical practitioner dated 1 March 2023, opined that, whilst she was normally able to manage her fundamental self-care requirements, she was:

...struggling to do so at the moment and it is clear from my professional assessment of her that she is having a type of nervous breakdown which includes significant anxiety with connected Panic Attacks. ...

• Further, Mr D, described her as having historically been a very resilient individual, but he expressed a concern over her then current wellbeing. He continued, stating that:

... I would strongly discourage her participation in this if possible as I am concerned that any additional stress placed on her will only exarcerbate [sic] the decline of her current state and I also do not believe she is in a fit enough state to function physically and mentally at her normal capacity. ...

1. That was the situation in March 2023. However, by 5 November 2024, some 20 months later, in a report to the Court in support of the mother's reinstatement application, annexed to his affidavit filed 7 November 2024, whilst he diagnosed the mother as having Complex Post Traumatic Stress Disorder (in respect of which opinion he was unable to be cross-examined, as I address further, below), Mr D opined that the mother demonstrated "a clear and unwavering pattern of capacity" and that she did not require the appointment of a litigation guardian.
2. Further, Mr D reported:

My professional opinion is that [Ms Cassell] is very capable of managing her daily affairs and functions very healthily on a day-to-day level. Periods in which she is exposed to further stressors as outlined above, do not have any impact of [Ms Cassell]'s capacity to understand the nature of court proceedings and possible consequences, her ability to make decisions accordingly, or her capacity to instruct representation.

...

[Ms Cassell] has displayed that she is more than capable of managing her daily affairs, understanding court proceedings, and making informed decisions in her legal matters. Even during periods of heightened stress, her ability to comprehend the nature and consequences of legal processes, make decisions and communicate effectively remains intact, and she is more than capable of instructing legal representation when necessary. With the provision of adjustments by the Court if so required, [Ms Cassell]'s diagnosis of CPTSD does not impair her capacity to navigate legal complexities or advocate for herself and her child effectively.

1. Under the rubric of his "recommendations", Mr D reported that:

[Ms Cassell] has expressed to me her understanding and acceptance that court proceedings can be stressful and involve a significant workload, particularly when acting as a self-represented litigant. From my clinical observations and after reviewing a number of documents listed above, it is evident to me that [Ms Cassell] is remarkably capable of managing those aspects.

1. Mr D recommended the implementation of the following by the Court, "in order to support [Ms Cassell]'s full participation in proceedings, and to mitigate further injury [sic]":
   1. Trauma-Informed Court Proceedings

- A trauma-informed approach involves court staff and judicial officers recognising the impacts of trauma, and remaining sensitive to behaviours that may trigger a trauma response in [Ms Cassell]. In particular, avoiding language, tone, or actions that might increase stress and re-traumatisation. As symptoms can appear suddenly and without warning, practices inducing further trauma or triggering existing trauma should be avoided as much as possible.

1. Extended Time Limits

- [Ms Cassell] may require additional time to prepare documentation, particularly in circumstances where the preparation involves reviewing evidence that may induce trauma responses.

1. Responsiveness to Requests for Adjustments

- [Ms Cassell] has displayed strong abilities of self awareness and self-advocacy, and has demonstrated that she can effectively recognise onset of her symptoms and situations that may induce or trigger trauma. As the onset of CPTSD symptoms may be sudden, it is necessary to afford [Ms Cassell] the latitude to inform the Court when this occurs, and consult with her about what action is necessary to mitigate the effects.

1. Unfortunately, by reason of the way in which Ms Cassell conducted herself between 14-16 July 2025, the Court (and, accordingly, she) was denied the opportunity to implement Mr D's recommended "accommodations". Further, as discussed below, by her repeated refusal to make Mr D available for cross-examination, she precluded any testing of his evidence, including his two affidavits filed on 8 December 2021 and on 7 November 2024 and, his recommendation for "accommodations".
2. Mr D concluded, in summary:

The long term prognosis for [Ms Cassell]'s condition is very positive. She has effective treatment plans in place and a strong network of supportive friends and health professionals. She has demonstrated that she is a resilient individual, and lives in a stable environment which she has created. Despite the impact the court proceedings have in all areas of her life, [Ms Cassell] demonstrates strong self-awareness, and has displayed an excellent understanding of her diagnosis, how it presents within her and her life, and her ability to effectively communicate this information. Although she remains in the unusual circumstances where some re-traumatisation is possible, with the implementation of the above recommendations by the Court [Ms Cassell] is very likely to be able to effectively navigate and participate in the proceedings and, in time, make a complete and successful recovery.

The primary focus of this assessment was to determine whether [Ms Cassell] is capable of managing her own legal affairs and her capacity in caring for her daughter, [X]. Based on my long-standing observations and thorough evaluation, it is evident that she has the capacity to do so.

1. It was by reason of Mr D's report that, on 20 December 2024, I reinstated the proceedings and discharged the order for a litigation guardian for the mother.
2. By reason of the mother's refusal to tell the Court, and the other parties, whether she relied on any or all of the filed affidavits of her supporting witnesses and, if so, which of them, and her refusal to make any of them available for cross-examination, she prevented their evidence from being tested and the Court making findings in relation thereto. The mother labours under the wishful misapprehension that, merely because she or, for example, Mr D, asserts or opines something, it is ipso facto true. That is not necessarily so; it must be capable of testing, by cross-examination.
3. In an endeavour to assist the mother, and the Court, in the week preceding the resumption of the trial, on 8 July 2025, the father's solicitor sent an email to Mr D, putting him on notice that he would be required for cross-examination at trial and requesting that he bring to Court with him his complete file in relation to the mother. Unbeknownst to the solicitor, Mr D was apparently on a "short vacation" that week. He responded to the solicitor by email in the evening of the first day of the resumed trial advising that, notwithstanding his busy schedule, "with some reasonable notice, [he] could perhaps shift one session and attend via phone or video link in a given hour".
4. Nevertheless, the mother persisted in her refusal to make him available for cross-examination or, given his availability, to attend upon him herself on Tuesday, 15 or Wednesday, 16 July 2025, notwithstanding the mental health issues she alleged she was experiencing on those days.
5. At several times in the morning on Monday, 14 July 2025 and, again, in the early afternoon that day, I invited the mother to return to the witness box to resume her incomplete cross-examination from August 2022. She refused to do so, repeatedly asserting that she needed legal advice. She failed, or possibly refused, to understand that, no matter how desirable, legal representation is a privilege, not a right. I explained to her that, in this Court, litigants are often self-represented and that I would ensure the guidelines in Re F_: Litigants in Person Guidelines_ were followed, albeit to no avail.
6. As referred to above, the mother refused to identify the evidence of any of her other witnesses upon which she proposed to rely, noting that such affidavits were filed in 2021-2022 (and were listed in her Case Outline filed on 23 August 2022), for the trial which commenced in August 2022, with the exception of a further affidavit sworn by her on 16 April 2025 (and filed the following day) and the further affidavit of Mr D filed on 7 November 2024. She also refused to make any or all of the deponents available for cross-examination, again asserting, inexplicably, that she needed legal advice in that respect too. That was so, even in relation to Mr D, notwithstanding his preparedness to make himself available.
7. Accordingly, like the mother's other affidavit evidence, I similarly give Mr D's affidavit evidence little, if any, weight, in circumstances where the other parties have been denied, by the mother, the opportunity of testing his evidence.
8. In the circumstances, after giving the mother multiple warnings (including after the luncheon adjournment) regarding her refusal to make herself, or any other witnesses upon whose evidence she sought to rely, available for cross-examination, I informed her that I would consider her case, as applicant, to be closed.
9. Notwithstanding her repeated, but I find hollow, protestations that she was being denied procedural fairness, it was she who sought to deny procedural fairness to the father and the Independent Children's Lawyer, by denying them the opportunity to test her evidence, if it were to be relied upon. She could not be and, in the result, was not allowed to so do.
10. I did not, and do not, accept her professed reason or excuse for not resuming cross-examination or making any witnesses, upon whose evidence she might seek to rely, available for cross-examination. Rather, I consider that she engaged, and rudely so, in obfuscation with the Court, in an endeavour to delay the resumption of the trial. She has previously made several applications for me to recuse myself, all of which I duly considered and then dismissed. She sought leave to appeal my last refusal to recuse myself, on 27 February 2025, and was unsuccessful in that regard before the Full Court on 3 July 2025.
11. The mother's case having been reluctantly determined by me to be closed, in the early afternoon on 14 July 2025, I called upon counsel for the father to open his case. I once again asked the mother if she sought to cross-examine the father's other witnesses (being precluded from cross-examining him herself, by reason of the s 102NA order). The mother again refused to answer the question and then accused me of somehow misleading the Court (sic) and misrepresenting matters for the transcript. When I informed her that she could appeal to the Full Court if she were dissatisfied, she responded that such a statement was a "threat" and was "misleading". The mother stated that she would not continue with the hearing until there were accommodations made, and she refused to sit down and enable counsel for the father to commence his case, stating that she was being "bullied".
12. I asked the mother both to sit down and to stop interrupting me; however, she did neither. Given her conduct, the matter was again stood down briefly, in order for a member of the court's security team to be present in the courtroom. When the hearing resumed, the mother then said that she could not continue and that she was "shaking". I did not observe that to be the case, and I was informed by counsel, both for the father and for the Independent Children's Lawyer, that neither did they. Of her own motion, she left the Bar table and the court room at 2.34 pm. She returned a few minutes later, at 2.45 pm, but elected to sit within the body of the Court, typing on a laptop computer. Again, I did not observe her to be shaking or otherwise unwell. Although she was invited to return to the Bar table, she declined to do so and remained seated in the body of the Court for the remainder of that day.
13. In circumstances where the mother prevented the continued testing of her evidence by the resumption of cross-examination, and the cross-examination of her other witnesses, I place no weight upon her evidence, other than that the subject of cross-examination in 2022, unless it is admitted by the father or it is independently corroborated. However, in any event, there has been much proverbial water, namely, time, that has passed under the metaphoric bridge since she was cross-examined then, especially taking into account the child's young age.
14. In opening the father's case, in the afternoon on Monday, 14 July 2025, his counsel advised the Court that, of the various documents filed on his behalf for the trial which had commenced nearly three years earlier, reliance was placed primarily on:
    • his most recent affidavit, filed on 22 April 2025, together with, and updating, the evidence in his trial affidavit filed 6 June 2022 and his reply affidavit filed on 20 July 2022;
    • his updated Financial Statement filed on 1 July 2025; and
    • the affidavits of his father, Mr M, filed on 6 June 2022; his mother, Ms O, filed 6 June 2022; and his brother, Mr Z, filed on 20 July 2022 -

as well as the expert evidence filed by the Independent Children's Lawyer, to which I refer below.

1. Although, by reason of the discretionary s 102NA order which the mother sought to maintain, she could not cross-examine the father, there was no such prohibition in relation to his parents and brother. However, they were not required by her, or by the Independent Children's Lawyer, for cross-examination, and their evidence is therefore unchallenged and is accepted by the Court.
2. Counsel for the Independent Children's Lawyer advised that he relied upon:
   • an affidavit of Dr E, clinical psychologist, filed 18 February 2021, annexing three Family Reports dated 24 October 2019, 16 June 2020 and 18 January 2021;
   • Family Reports by Ms R dated 28 July 2022 and 28 May 2025;
   • an affidavit of Dr G, forensic psychiatrist, filed 5 February 2021, annexing a psychiatric assessment of the mother, dated 5 December 2019, and a psychiatric assessment of the father, dated 7 September 2020; and
   • an affidavit of Ms CC, childcare worker / supervisor, filed 20 July 2022, annexing two reports dated 23 August 2021 and 28 September 2021, regarding supervised time between the mother and X up to that time, more than four year ago.
3. Additionally, in the course of the resumed hearing between 14-16 July 2025, counsel for the father and the Independent Children's Lawyer tendered a number of documents, including, in the case of the father, responses to the Court from the Department of Families, Fairness and Housing (and formerly the Department of Health and Human Services) pursuant to orders made under s 69ZW of the Act on 15 December 2020 and 28 January 2022, dated 4 January 2021 (Exhibit H-18), 4 February 2021 (Exhibit H-19) and 27 January 2022 (Exhibit H-20).
4. The father and the Independent Children's Lawyer jointly seek orders (Exhibit H-14), in summary, that the father continue to have sole parental responsibility for X; that she continue to live with him; and that she spend no time, and have no communication, with the mother, other than that the mother be at liberty to provide a gift and card for her on her birthday and at Christmas and Easter, upon certain conditions, including as to the review thereof by the father for appropriateness. Otherwise, orders are also sought by them for the provision of limited medical information by the father to the mother; in relation to a passport for X and her travel overseas with the father; restraining the mother from entering into or remaining at X's residence or school or where she undertakes extra-curricular activities, as well as from contacting or communicating with X by any means. Further, by his further amended Response to Initiating Application filed 1 July 2025, the father seeks, and the Independent Children's Lawyer supports the making of a harmful proceedings order pursuant to s 102QAC of the Act. I refer below to the orders he seeks in relation to property settlement and spousal maintenance; in summary, he seeks that there be none.
5. At no stage between the resumption of the trial, on 14 July 2025, and the conclusion thereof, on 16 July 2025, would the mother tell the Court whether she persisted in seeking the most recent incarnation of the orders sought by her, being the Minute of Orders tendered by her Counsel on 30 August 2022 (Exhibit W-1). The orders sought in that minute include that the parents have equal shared parental responsibility; that X live with the mother; and that X spend time with the father, inter alia, from Friday afternoon until Tuesday morning in each alternate week. Indeed, when I asked the mother, in the afternoon of the last day, whether she persisted in seeking an order for equal shared parental responsibility and/or an order that X live with her, she asserted that she could not even tell me that, without legal advice. Given the long history of this matter, during most of which the mother has confidently and forcefully represented herself, I simply do not accept that to be so. Rather, I conclude it was yet another attempt by her to delay or avoid the inevitable, namely, the conclusion of the trial, the delivery of judgment and the conclusion of the proceedings at first instance.
6. The father gave evidence between 3.11 pm and 3.25 pm on Monday, 14 July 2025. Although the mother could not cross-examine the father, by reason of the discretionary s 102NA order, counsel for the Independent Children's Lawyer cross-examined him briefly.
7. His affidavit evidence was in no way shaken; indeed, it was confirmed and enhanced. He confirmed that, since about late 2022 / early 2023, X's only form of communication with the mother pursuant to the March 2021 interim orders, as amended, has been by Facetime, which he has monitored by listening to, but not watching, such communications. He said that X manages difficult conversations with the mother by not responding, walking away from the screen or changing the subject. On occasions, the father has terminated communications between them, for example, when the mother has denigrated him, his parents or, indeed, her parents, with whom X and he have a good relationship. He said that the mother has alluded to X that they would spend time together "very soon". I interpolate to observe that the mother could, in fact, have spent time with X, and regularly so, had she availed herself of the order for professionally supervised time.
8. The father said that X writes cards and makes gifts for the mother, which are unable to be delivered to her, as she refuses to provide any address (whether for her or anyone else) for delivery or to obtain an Australia Post parcel locker.
9. He tearily and, I find, genuinely explained the toll these proceedings have taken upon him over the years, namely, that he has been in a "constant state of stress and anxiety" and that the proceedings, which have been unrelenting, have been "the hardest thing I've gone through in my life". Nevertheless, he said that his focus has been to protect X, and that his "job is to insulate" her. I find that he has done so, to the best of his abilities, in difficult circumstances not of his making.
10. I found the father to be an honest, open and forthright witness, who gave his evidence in respect of X with sensitivity and manifest love, and without a scintilla of malice towards the mother in circumstances where, had he done so, it may have been humanly understandable, given all that she has put him through since separation.
11. The Court is left with the following dilemma. Save for some cross-examination in August 2022, in respect of which she was a difficult, non-responsive and argumentative witness, whose answers raised more questions than they answered, the evidence of the mother has been incapable of being tested by reason of her refusal to make herself and any of her supporting witnesses available for cross-examination. On the other hand, even if the mother had participated in the resumed trial between 14-16 July 2025, she would have been prevented from cross-examining the father, by reason of the s 102NA order. Although that order was a discretionary order, I cannot draw any adverse inference from her refusal to seek, or consent to, a discharge thereof. However, given that, by her refusal to resume cross-examination, her allegations of family violence could not be tested and that, accordingly, I place no weight on her evidence, I do not accept her allegations of family violence by the father. Further, even if that order had been discharged, given her conduct between 14-16 July 2025, including her refusal to cross-examine the father's parents or brother, I conclude, on balance, that she similarly would likely not have cross-examined the father. In the circumstances, I accept without reservation the father's evidence, which was at least briefly tested by counsel for the Independent Children's Lawyer.
12. Cross-examination of the father concluded, and the Court rose for the day, at 3.38 pm on Monday, 14 July 2025.
13. On Tuesday morning, 15 July 2025, the mother returned to the Bar table. She informed the Court that she had still not been able to obtain legal advice. She alleged that the resumption of the trial the previous day had aggravated her alleged symptoms of post-traumatic stress disorder and that the hearing was putting her at risk of further injury. As discussed above, due to the mother's refusal to make Mr D available for cross-examination, I give Mr D's affidavit evidence, including his diagnosis, little, if any, weight.
14. Further, the mother accused me of smirking. I did not do so. That was not the first time she has made allegations of that nature, having previously asserted that I rolled my eyes at her.
15. Shortly thereafter, the Independent Children's Lawyer's case was opened by her counsel and the Family Report Writer, Ms R, was cross-examined by him, and by counsel for the father. I refer to her evidence below.
16. The mother was given the opportunity to cross-examine the Family Report Writer but declined to do so, notwithstanding that she had been warned of the consequences thereof.
17. At 11.00 am that morning, counsel for the father read the email from Mr D dated the previous day, to which I have already referred above, advising that "with some reasonable notice, [he] could perhaps shift one session and attend via phone or video link in a given hour". Nevertheless, the mother persisted in her refusal to inform the Court if she relied on his evidence.
18. At 11.05 am, the mother informed the Court that the duty lawyer in Bendigo, with whom she had been put in contact the previous day, had told her that she was "outside their catchment". After a short adjournment, at 11.35 am, counsel for the Independent Children's Lawyer informed the court that he had been advised by the Family Advocacy and Support Services ("FASS") that the duty lawyer in Bendigo was not, in fact, precluded from assisting the mother, but that duty lawyers do not represent litigants in a final hearing. This was disputed by the mother.
19. The mother then requested that several people sitting in the body of the court, whom she asserted (but I do not know) to be employees of Victoria Legal Aid, identify themselves, as she asserted there was a "conflict of interest". I am unsure, and she did not explain, what she meant by this. As it was an open court, I declined to order those individuals to identify themselves; there was no reasonable basis to do so.
20. I explained to the mother that closing submissions would commence, and what that entailed. Following the Independent Children's Lawyer's closing submissions, at 12.48 pm, the mother asserted she was not feeling well and sought leave to attend the hearing that afternoon by Microsoft Teams from her home. I granted her such leave. I asked if she would be making closing submissions, to which she once again responded that she was not "legally equipped" even to answer that question.
21. At 12.54 pm, the mother emailed my chambers requesting the Microsoft Teams link to participate in the hearing from home, which link was promptly provided to her at 1.03 pm.
22. During the luncheon adjournment, at 1.39 pm, my chambers received the following, self-serving email from the mother (Exhibit W-5):

Dear Associate

I respectfully notify the Court that I was required to leave the courtroom and return home due to acute medical symptoms arising from my diagnosed Post-Traumatic Stress Disorder which is directly connected to the proceedings.

Earlier today, I informed the Court that I was experiencing PTSD-related symptoms. In response, Your Honour made remarks to the effect that he did not accept that I suffer from PTSD and implied that I was being untruthful. This has a significant and destabilising impact on me as did the closing statements.

I have prescribed medication to manage my symptoms when my preferred non-pharmacological strategies become ineffective. Today, I was unable to regulate my condition without medical intervention and will need to take the prescribed medication as soon as I am home.

My commute home involves two trains followed by a drive, and I will remain in transit at approximately 2:15pm. I am currently on the second train.

The medication carries medical precautions warning against driving, operating machinery, or making complex decisions while under its effect this includes legal decisions. It causes drowsiness, cognitive slowing, and impaired decision-making; this also only makes it suitable to take when I am at home and not commuting.

In these circumstances, I request that the matter be stood down for the remainder of today and resume tomorrow morning. I further request leave to appear via Teams, as I am not in a fit state to return to Court physically.

Given that the matter is listed for five days this week, I believe this adjustment would not significantly affect the overall schedule.

...

1. An email in reply was sent by my chambers to all the parties, including the mother, at 2.07 pm, stating that I would hear from all parties in relation to her request at 2.15 pm that day.
2. Upon resumption of the hearing, after the luncheon adjournment, at 2.22 pm, the mother did not appear by Microsoft Teams, even to pursue her application for an adjournment until the following morning, albeit that the link had been provided to her and notwithstanding the email to my chambers.
3. At 2.27 pm, my associate, in Court, made a call to the mother's mobile telephone number. There was no answer.
4. At 2.32 pm, the mother was emailed by my associate, informing her that Court had resumed and that she should dial into the Microsoft Teams hearing immediately. She did not do so. The matter was stood down at 2.34 pm, in an attempt to contact the mother yet again.
5. At 2.44 pm, my associate again called the mother's mobile telephone number and, again, there was no answer.
6. The hearing resumed at 2.45 pm; however, as the mother did not dial into the Microsoft Teams link, and taking into account her email sent at 1.39 pm, I relevantly ordered as follows:

...

1. The further hearing of the part-heard trial be adjourned to 10.00am on 16 July 2025 for the completion of closing submissions.
2. The Applicant Mother have leave to appear at the resumption of the trial and to make closing submissions by Microsoft Teams.
3. The Applicant Mother having been granted leave to appear by Microsoft Teams, do appear thereby at 10.00am on 16 July 2025.
4. In the event the mother persists in asserting that she is unwell and unable to continue to appear thereafter, she produce to the Court and to the solicitor for the Respondent Father and to the Independent Children's Lawyer by no later than 9.30am on 16 July 2025 a detailed medical certificate from a qualified medical practitioner with full and detailed particulars of:

   1. why that practitioner certifies the Applicant Mother is unable to continue to appear by Microsoft Teams; and

   2. any medication prescribed for the Applicant Mother and the side-effects (if any) thereof -

and the Applicant Mother ensures such medical practitioner is available to appear by Microsoft Teams on: Microsoft Teams Join the meeting now Meeting ID: [...] Passcode: [...] at 10.00am on 16 July 2025 for questioning by the Court and/or cross examination by Counsel for the Respondent Father and the Independent Children's Lawyer.

1. Leave be reserved to the Respondent Father and Independent Children's Lawyer to apply on 16 July 2025 to proceed undefended as against the Applicant Mother.

(Emphasis in original)

1. Court was then adjourned at 2.55 pm.
2. At 2.59 pm, my chambers received the following email from the mother:

As per my last email I have no [sic] made it come [sic] yet.

I am still on the second train and cannot join the teams link [sic]

1. Notwithstanding her typographical errors, I infer that she meant that she had "not made it home yet".
2. At 3.43 pm the sealed orders were emailed to all parties.
3. The following day, on 16 July 2025, at 8.55 am, the mother emailed my chambers requesting the Microsoft Teams hearing link for that day, which was duly provided to her at 9.21 am, it being the same link as that provided to her the previous day.
4. The hearing resumed at 10.05 am and the mother appeared via Microsoft Teams. As a result of a dog barking in another room, she was requested to mute herself unless she was addressing the Court, in order to minimise disruption.
5. At 10.29 am, counsel for the Independent Children's Lawyer concluded his closing submissions and counsel for the father commenced hers.
6. At 10.43 am, the mother's web-camera ceased operation. When this was brought to her attention, she asserted it was due to an issue with her internet connection.
7. Shortly thereafter, I reminded the mother that, as applicant, she would be given the opportunity to make final submissions on her own behalf later that day. The mother then asserted that she had taken medication that had long-lasting effects on her capacity to make decisions. She stated that she had not been asked about her medication by the Court, albeit that the asserted long-lasting effects thereof had not previously been raised by her. She further stated that she had contacted her treating medical practitioner to make an appointment, in accordance with my orders made the previous day, but that she had been unable to secure one until the following Monday, after the time allotted for the conclusion of the long-adjourned, part-heard trial. I observed to the mother that she could have attended upon any medical practitioner, or indeed a hospital, to obtain a medical certificate at short notice. She further asserted that no accommodations had been made for her; however, I consider that the leave she was granted, to participate in the hearing from the comfort of her own home, to be appropriate accommodation in the circumstances, especially in the absence of any supporting medical evidence on her behalf
8. At 11.38 am, I directed my associate to mute the Microsoft Teams link, as the mother's constant and disrespectful interruptions were hindering the progression of the trial and the father's closing submissions. This occurred several more times during the remainder of the hearing that day.
9. The matter was adjourned for a mid-morning break at 11.41 am. During this adjournment, at 11.52 am, the mother once again filed written submissions (which were also emailed to my associate, to the father's solicitor and, for reasons which are not apparent, to the associate of the Chief Justice of the Court), which stated as follows:
   1. I received the Court's orders made on 25 July, which directed me to obtain a medical certificate. I attempted to do so by contacting my long-standing medical practitioners; however, no appointments were available until early next week.
   2. Due to the nature of this matter being personal and complex, only my regular treating professionals are in a position to provide an informed opinion. As they have explained, a proper medical report or certificate cannot be prepared without a full understanding of my case history. My symptoms did not warrant an emergency presentation.
   3. I have taken prescribed medication as previously disclosed to chambers via email on July 15, 2025. This medication carries clear medical warnings against driving, operating machinery, or making complex decisions while under its influence. It causes drowsiness, cognitive slowing, and impaired decision-making. For that reason, it is only appropriate for me to take it while at home, not while commuting or attending court.
   4. At the commencement of today's hearing, His Honour did not inquire into whether I had been able to comply with the medical certificate order, nor whether I was in a fit state to proceed. The hearing instead moved directly into closing submissions from the other party.
   5. I wish to make clear that I am not as cognitively capable today as I would be if I had not taken my prescribed medication. I am doing my best under the circumstances, but I feel that my capacity to meaningfully participate is impaired.
   6. Being yelled at and muted by His Honour while I was experiencing active symptoms of PTSD, and while I was attempting to explain when the Court's orders could be met, is not consistent with a trauma-informed approach to proceedings. Such an approach has been repeatedly recommended by my treating professionals. I do not believe I should be penalised or disadvantaged for advocating for my medical needs and rights in order to meaningfully participate in my matter.
   7. Furthermore, His Honour's statement that the only accommodation required was for cross-examination is in direct conflict with the recommendations made by [Mr D] in his medico-legal report.
10. When the matter resumed at 12.02 pm, the mother informed the Court that she would not make closing submissions that day, as she asserted she was under the influence of medication. When asked to produce a copy of the prescription for that medication, she said that she would not do so until she could be satisfied the information would be "safe" and that production of the prescription would guarantee that her diagnosis was accepted. The prescription was not produced.
11. As the mother continued to interrupt the proceedings, I once again directed that the mother's Microsoft Teams link be muted and, in order to lessen her disruptions, I directed her to message my associate through the "chat" function therein if she had anything she wished to say.
12. During the father's closing submissions, at several instances, counsel for the father sought to tender documents into evidence. Both counsel for the Independent Children's Lawyer and the mother were given the opportunity to respond to the proposed tenders. Counsel for the Independent Children's Lawyer did not object to the tender any of the proposed documents. The mother refused to inform the Court whether she objected or consented thereto. She asserted that she did not have access to the father's tender bundle but, when it was provided to her by the Microsoft Teams "screen-share" function, she said that she would not look at the documents due to her "cognitive impairment". During several of the proposed tenders, the mother asserted that she did not understand what was happening and that she could not make any decisions. She then asserted that I, as the judge, was somehow misleading the Court; that I was patronising her; and that she needed the matter to be adjourned. She claimed that, had she been provided with a lawyer, an example of an accommodation that would have been made was that she would have been permitted to leave the court room. This overlooks the fact that any such accommodation would be granted by me, not her lawyer, and that such accommodation was, in fact, granted shortly prior to the luncheon adjournment the previous day; she was granted leave to appear by Microsoft Teams, from her home.
13. Shortly after the luncheon adjournment, at 2.47 pm, the mother informed the court, via the Microsoft Teams chat function (having again been muted due to her disruptive conduct), that she was distressed and needed to take "time out". I adjourned the matter briefly, to enable the mother to compose herself.
14. The hearing resumed at 2.56 pm, whereupon the mother resumed her litany of complaints, including that I was "gaslighting and denying [her] existence".
15. At 3.37 pm, after counsel for the father concluded her closing submissions, the mother made further assertions, including that she had taken more (unspecified) medication; that she had an irregular heartbeat; that she did not have capacity to be in Court (I interpolate, even by Microsoft Teams, from the comfort of her own home); that she was being persecuted for showing emotion (albeit that her camera remained inactivated and, therefore, I was unable to see any emotions expressed by her); that her health was equally as important as her child; that she was traumatised; that I was rolling my eyes (yet again); and that she was texting her psychologist whilst addressing me.
16. I invited the mother to make her closing submissions, which she refused. I asked the mother if she continued to seek an order that X live with her, which she refused to answer. When I then asked her if she consented to the child continuing to live with the father, she said that she did not consent to anything.
17. The mother said that she wanted to make closing submissions, albeit that her evidence had not been able to be further tested and that she had not tested any of the father's evidence, but that she could not do so in the state in which she asserted herself to be. To accommodate her, I made orders providing that she file written closing submissions within 14 days.
18. Pursuant to those orders, on 30 July 2025, the mother filed written closing submissions. I have read them. They are of little assistance to her case, or to the Court. They are aspirational; rather than realistic. They are replete with unsworn assertions and references to evidence that she precluded from testing by cross-examination. They barely address the matters prescribed by s 60CC of the Act. They focus more on the mother, and her complaints regarding the litigation, than they do on the child, and her welfare. In this latter respect, they confirm some of the expert opinions proffered about the mother, for example, by Ms R, the author of the more recent Family Reports in 2022 and 2025.

1. I have referred above to the father's evidence, in relation to which he was only cross-examined by counsel for the Independent Children's Lawyer, and my favourable observations in relation thereto. His evidence was unable to be challenged by the wife, by reason of the s 102NA order, the possible discharge of which she opposed. Insofar as he was cross-examined by the Independent Children's Lawyer, not only was it not impugned (or, indeed, even sought to be impugned), but it gave me the opportunity to hear and observe him, and to gain an insight into him. As I have found above, I have no concerns whatsoever regarding his evidence, which I accept. In fact, his case is largely corroborated by Ms R.
2. The mother was only cross-examined at the beginning of the trial, on 29 and 30 August 2022. The relevance of that evidence, some years ago, in relation to events prior thereto, is in any event limited. The following day, on 31 August 2022, an adjournment was necessitated, when her counsel and, subsequently, her solicitor, were granted leave to withdraw, leaving her unrepresented. When the trial finally resumed, in the circumstances outlined above, nearly three years later, on 14 July 2025, the mother refused to make herself available for further cross-examination, leaving much of her evidence unable to be tested.
3. Insofar as she was briefly cross-examined in 2022, as I have observed above, there has been much proverbial water that has passed under the bridge since then. At the commencement of the trial, the child was 4.5 years of age; at the conclusion thereof, she was 7.5 years of age. In the intervening period, the mother has spent negligible time with the child, notwithstanding that the March 2021 interim orders, as amended, provided for her to do so, albeit professionally supervised. Given the father's evidence, which I accept, and that of Ms R, which I similarly accept, and which largely corroborates that of the father, the child has thrived whilst he has had sole parental responsibility for her and she has lived with him, notwithstanding the difficult circumstances of the absence of the mother from her life. However, in the circumstances, I find that such absence has overwhelmingly been caused by the mother.
4. In the brief period in which the mother was cross-examined in 2022, I found much of her uncorroborated evidence to be fantastical in nature, including that she was under surveillance from the father and his parents, and that she had suffered a miscarriage at or about the time of the commencement of the parties' relationship. It was unclear whether the alleged pregnancy was to the father or a previous partner. The latter allegation was uncorroborated by any medical evidence, either of a pregnancy or a miscarriage. In her third session with her treating psychologist, on 28 September 2016, she was recorded as being "highly distressed as [she] found out she is pregnant" (Exhibit H-4). However, her contemporaneous medical records that were tendered at trial did not refer to any pregnancy, either alleged by her, or in fact. They record that, the previous day, namely, on 27 September 2016, she attended upon a general medical practitioner, whose notes merely referred to "mild discharge" and "assoc vaginitis" (sic) and recorded that she had been referred for a urine test for (inter alia) "chlamydia and gonorrhoea PCR, Syphilis serology" (Exhibit H-2). She next attended upon that general medical practitioner on 3 October 2016. Again, his notes did not record or refer to any pregnancy but, rather, the prescription of vaginal jelly for her (Exhibit H-2). Her next attendance was upon a different general medical practitioner at the same clinic on 7 October 2016 (Exhibit H-3). His notes thereof record that "[p]atient found some unusual debris in her vagina today and presents for a check up" but that her last menstrual cycle "came as expected" a week earlier. It is, therefore, difficult to understand how, or why, the mother asserted to Mr D that she was pregnant. The general medical practitioner's notes of that attendance record that she "brought the vaginal debris in" that day and that it was "sent for histopath assessment" (sic). Her next and last relevant attendance upon the second general medical practitioner was on 11 October 2016, the notes of which (Exhibit H-3) record that she presented "for the results of the histopath of her vaginal debris from 07/10/2016 which showed benign squamous debris and the features raised the possibility of bacterial vaginosis", which was discussed with her. The balance of Exhibit H-3 covers an attendance by the mother at the clinic on 7 November 2016, which records that a mental health plan review was produced and that the mother was prescribed Valium. Nevertheless, in cross-examination, in August 2022, the mother adamantly, and entirely inexplicably, maintained that she had suffered a miscarriage in October / November 2016. Further, I find that her assertion to Mr D on 28 September 2016, and in cross-examination, that she was pregnant and had suffered a miscarriage to have been lies, and inexplicably so.
5. Insofar as the mother alleged that she was a victim of domestic violence, including coercive control, I do not accept such serious allegations in circumstances where she precluded the testing thereof.
6. The mother has, historically, and whilst the child was in her primary care, unilaterally taken the child to various doctors and hospitals for investigation, including genital examination and urine testing, regarding her beliefs of sexual abuse, which I find to be unreasonable at best, and disingenuous, at worst; it matters not. I refer to, and consider, the departmental reports to the Court, including in relation to such allegations, below.
7. She often spoke in conclusionary generalities, without particularising any facts, matters or things giving rise thereto. She alleged that the father "weaponised" her alleged post-traumatic stress disorder, for example by making "psychological slurs" in whispered terms, proverbially to "poke the bear". In cross-examination regarding her treatment by Mr D, she admitted to "stretching the truth" and to "lying to impress". She asserted that the father and his parents undertook a campaign of isolating and ostracising her. Whilst the Court takes allegations of family violence, in its manifold forms, seriously, they remain, unless and until proven on the balance of probabilities, merely that, namely, allegations. The wife's allegations were entirely uncorroborated and were rendered incapable of testing, because of her subsequent refusal to re-engage in the proceedings, including by making her witnesses, and in particular, Mr D, available for cross-examination, notwithstanding his availability.
8. The mother has agitated allegations of risk to the child by the father and his parents in other fora and jurisdictions. She has made what have transpired to be unwarranted notifications to Child Protection Services and the police. Her application for the extension of an intervention order against the father's parents was dismissed by the Magistrates' Court of Victoria, and she has appealed that decision in the County Court of Victoria.
9. She has made complaints against other individuals, including professionals, without success, on the basis of her perception that they are biased against her or that their decision making is flawed. I refer, in particular, to Dr E, who prepared the first three Family Reports but whose continued involvement was precluded by complaints made against her. The only people with a possible interest in Dr E's three family reports, and in making a complaint against her in relation thereto, were the mother, the father and the Independent Children's Lawyer. Given the contents of the reports, which became increasingly adverse to the mother and supportive of the father, as well as the contents of Dr E's email to the Independent Children's Lawyer, I am satisfied, on the balance of probabilities, that it was the mother who made the complaints against her.
10. However, ultimately, the Court is more interested in the present and the future, rather than the distant past, and it is to that that I now turn.

1. As referred to above, the child, who was aged 7.5 years at the conclusion of the trial, has been in the father's sole care since the March 2021 interim orders were made, at which time she was three years of age. Despite her ability to do so, the mother has not spent any professionally supervised ordered time with her since in or about late 2022 / early 2023, some 2.5 years ago.
2. In the mother's affidavit filed on 17 April 2025, the mother deposes at paragraph 128:
   1. Despite the court order made in March 2021 by Registrar Hoult [sic], which was later varied in January 2022 to require that I bear the financial costs of supervision, my time with [X] has not occurred as ordered. This is due to my financial inability to afford professional supervision services and the discretion of [Mr Kolar] to not agree to a nominated and approved by ICL supervisor. I have repeatedly communicated both my financial constraints and my willingness to engage in alternative, safe, and appropriate supervision arrangements, including proposals of agreed supervisors. However, in the absence of any facilitation, flexibility, or cooperation from [Mr Kolar], time between [X] and me has not eventuated.
3. However, that is demonstrably not the case. The March 2021 interim orders required that the father pay the costs of professional supervision, in the first instance (to be reimbursed from any property settlement between the mother and him). Those orders were not varied, in January 2022 (or at all) to require the mother to bear the costs of professional supervision, as she alleges. Rather, on 4 February 2022, I ordered, by consent (at Order 3):
   1. The Applicant Mothers supervised time with the child, pursuant to previous orders, be supervised by such supervisor as is nominated by Independent Children's Lawyer and in the event the Mother and Father are unable to reach agreement in relation to funding of that supervision, then it occur at a community supervision centre as nominated by Independent Children's Lawyer.
4. No (or no satisfactory) explanation has been proffered by her, in evidence, as to why, if the parents were unable to reach agreement in relation to the funding of professional supervision nominated by the Independent Children's Lawyer, she did not avail herself of the ability to spend time with the child a community supervision centre, even if that were not her preference.
5. For the purposes of the trial, listed in August 2022, the father filed affidavits on 6 June 2022 and 20 July 2022. Thereafter, for the purposes of the eventual resumption of the trial in July 2025, he filed an updating affidavit on 22 April 2025.
6. In his most recent affidavit, the father deposes that the child, who is now in Grade 2, is well-settled at school, which she enjoys attending and where she makes friends easily. He deposes that her school reports, which are also received by the mother, have been consistently positive. He describes her as a happy and social child, who is in good health and who has a wide variety of interests, including reading and playing. His parents, and his siblings and their families, live in close proximity to the child and him, and he describes a close family, which regularly spends time together. Unlike the mother, the father maintains a good relationship, and regular contact with, her parents and her sister and family.
7. The father confirms that the child did not spend any supervised time with the mother in the 2.5 years preceding the resumption of the trial in July 2025, but deposes that, in that intervening period, the mother attended on occasions at the child's school in 2023, and at her basketball games in May/June 2024, albeit not pursuant to (and, in fact, contrary to) orders of the Court. When asked, by the principal, to leave the school, the mother has asserted that she is entitled to be there. That is not the case. Further, on 1 November 2023, on application by the father, an interim intervention order was made restraining the mother from attending at the child's school, the final disposition of which awaits the outcome of these proceedings. Otherwise, the child has communicated with the mother for 15 minutes each week, by FaceTime, pursuant to the March 2021 interim orders. However, as discussed herein, the father deposes that such communications have, on occasions, been, and remain, problematic.
8. The father also deposes that, since in or about 2023, the mother has caused parcels to be delivered for the child at their home, sometimes up to five times per month and, on occasions, twice to thrice weekly, which he transmits to her. He deposes that, in the course of FaceTime communications, the mother often demands that the child show her the presents she has sent and becomes agitated if the child cannot immediately locate them, accusing the father, to the child, of having hidden or disposed of them.
9. The father deposes that, whilst the child has made drawings and gifts for the mother, such as for Mothers' Day, he has been unable to convey them to her, as she refuses not only to disclose her address, but even to provide another address or post office box details.
10. In relation to the mother's unauthorised attendances at the child's basketball matches in or about mid-2024, when asked to leave, on Saturday, 25 May 2024, she responded by text message as follows:

I have had the orders checked by my lawyer and police and we can stay and watch. There is no court order preventing this.

I will make this very clear [Mr Kolar]. You can't control her life or mine via court orders. I have never ever done a single thing to compromise her or my relationship with her - that is on you. I notified you that the orders allowed me to be here. Your need to control both her and I is pathological. I will always be present for her, her growth, her milestones. The failures of the courts have worked in your sole advantage, and you have run with that in the most distressing and disturbing of ways.

1. In the circumstances, the father and the child left and she did not participate in her match that day.
2. On the next occasion, on Saturday, 1 June 2024, the mother sent the father a text message in the following terms:

I will be at the game. I am legally allowed to be there. You also witnessed how excited she is to be able to have me cheer her on. YOU MONITOR THE CALLS AND WITNESS HOW MUCH SHE WANTS ME and how sad she is. You are controlling her and me for what [Mr Kolar]? To protect your lies?? I am not going anywhere. I am her Mum and no matter what obstacle you choose to put in front of me I will move heaven and earth to make sure ALL TRUTH is out there and her life is peaceful.

1. On another occasion in June 2024, the mother attended another of the child's basketball games, accompanied by unknown woman. When, in their next FaceTime call, the child asked her about the identity of that other woman, the mother responded that she was a "defence officer" (sic) whose role was to "make sure everyone tells the truth". Whilst, in other circumstances, the attendance by a parent at a child's extra-curricular sporting matches might be unremarkable, it must be recalled that, in this case, the mother's time with the child was, pursuant to the March 2021 interim orders, to be not only supervised, but professionally so.
2. The father deposes at length to inappropriate statements made, and questions posed, by the mother to the child during the course of their weekly FaceTime communication, including demands that the child provide details about where she has been, with whom and for how long, and (as referred to above) that the child show her gifts that she has purchased for her. The mother has, inter alia, told the child that "you are going to be home with me soon"; that she looked sad and, when she denied it, that she was lying; that "I know you know the truth about everything"; that "all I care about is getting you home to mummy's house"; that friends of hers, who are unknown to the child, have, in one case, had dreams about her and, in another case, said a prayer for her "over a crystal"; that "people have been crying because they miss [her]"; that another child, who is apparently unknown to her, wants to "marry her"; that she was considering having the child's name tattooed on her body, asking her where she should have it placed; and that "one day you are going to find out a lot of information".
3. Bizarre and inappropriate matters raised by the mother include asking the child (then aged 5.5 years) whether she had kissed a boy or a girl at school; whether her toy elf, called Rosie, was a boy or possibly a lesbian (when the child was aged nearly six years); whether the boys at school were "flirting with the girls" (when the child was aged five years); whether, at the age of 6.5 years, she had a boyfriend yet, as well as calling her "sexy girl" and telling her that, if anyone had a "crush" on her, they had "excellent taste".
4. The mother has also spoken to the child in derogatory terms about the father and both the child's paternal and maternal families, notwithstanding the efforts the father has made to maintain contact with her maternal family. She has referred to the father, in FaceTime calls, as a "poo head" and an "asshole" (sic).
5. The father deposes that, in response, the child, for example, refuses to answer the mother's questions; tells her that she does not know the answers; or endeavours to avoid the questions by distracting her, changing the subject, or by leaving the room in the course of the FaceTime communication.
6. Each of the father's parents and his brother filed affidavits in 2022, prior to the commencement of the trial. The mother could have required them for cross-examination, and cross-examined them, but, by reason of her repeated refusal or failure to engage in the part-heard trial upon the resumption thereof in July 2025, she did not do so and, therefore, their evidence is unchallenged and accepted.

1. In her Case Outline filed on 23 August 2022, in anticipation of the commencement of the trial a week later, the Independent Children's Lawyer relied upon, inter alia, psychiatric assessments of each parent by Dr G, forensic psychiatrist, annexed to an affidavit by him filed on 5 February 2021.
2. In his psychiatric assessment of the father, albeit dated 7 September 2020, Dr G reported that the father did not describe any symptoms consistent with a psychiatric condition and that, throughout his assessment, he spoke warmly and lovingly of the child, whom "he clearly loves". Those observations are consistent with mine. He opined that, from a psychiatric perspective, the father does not represent a risk to the child; there is no evidence of any disordered personality functioning; and that he has the capacity to care for the child on a full-time basis.
3. Conversely, in his psychiatric assessment of the mother, albeit dated 5 December 2019, Dr G reported or opined, inter alia, that:
   • Serious concerns about the mother's mental health had previously been raised by the original Family Report Writer, Dr E (to whose evidence I refer below).
   • His assessment of the mother "unusually did not reveal her to describe or evidence the normal hallmarks of traumatisation as described by her".
   • When assessed with the child, "there were suggestions of enmeshment between mother and child with indications that [the child] was being mothered at a developmental level that was lower than appropriate, whereas the Father's interaction with [the child] was noted to be more age-appropriate, [the child] responding in a more verbal manner with her father than with her mother".
   • If the mother's allegations about the father and his parents were not accepted, she "presents as a person of considerable vulnerability" with a "tendency to deceive and exaggerate the truth".
   • "If the Father's account of [the mother] is found to be reasonably accurate and in keeping with aspects of her presentation to Dr E, diagnostically [the mother's] reported functioning would be consistent with a Personality Disorder with Borderline and Narcissistic Traits".

1. Family Reports in this case were prepared by Dr E, clinical psychologist, dated 24 October 2019, 16 June 2020 and 18 January 2021 (annexed to an affidavit filed on 18 February 2021) and, more recently, as referred to above, by Ms R, dated 28 July 2022 and 5 June 2025. Ms R is a family consultant (with a Bachelor's degree and a Master's degree of social work) appointed, initially, pursuant to reg 7 of the Family Law Regulations 1984 and, subsequently, reg 40 of the Family Law Regulations 2024. Whilst reliance was placed by the father and the Independent Children's Lawyer on all five reports, only Ms R was called and cross-examined on behalf of each of them. Nevertheless, the mother could have required that Dr E be made available for cross-examination, but she refused or failed to do so. Similarly, she refused or failed to cross-examine Ms R, although she had the opportunity to do so.
2. Whilst Dr E's Family Reports were prepared between 4.5-6 years prior to the resumption of the trial in July 2025, they raise concern regarding, and manifest a decline in, the mother's mental health between late 2019-early 2021, and increasing concern, on the part of Dr E, in relation to the mother. There was no evidence capable of testing at trial, as to any improvement in the mother's mental health since then.
3. In her first Family Report, in October 2019, Dr E opined (at paragraph 3), in summary, that-

... the mother's presentation raised concern about the presence of a personality disorder. And, if what the father is alleging about the mother is taken to be true, it is highly likely that the mother suffers from histrionic personality disorder, with borderline and narcissistic features. Importantly, indicators of personality dysfunction were evident in the mother's parenting of [the child].

1. Dr E reported (at paragraph 21) that there was "evidence of a lack of insight, some rigidity in her thinking, and a tendency to place onus for responsibility on others, with difficulty observed in her ability to perspective take" and that the "mother's presentation during interview raised concern about the potential presence of a Cluster B personality disorder".
2. Further, Mr D advised Dr E that, in the course of therapy, it was discovered with the mother "that she has a tendency to deceive or exaggerate the truth, in order to be liked, due to underlying self- esteem issues" (at paragraph 25).
3. In relation to the mother's attendance upon Mr D over the preceding four years, Dr E reported that it was "evident that personality dysfunction [had] not been the primary target of this work, and [the mother] appear[ed] to remain symptomatic despite long-term psychological intervention", which was clearly having an impact on her parenting of the child (at paragraph 57).
4. Dr E opined (at paragraph 59) that there were "indicators of an enmeshed relationship" between the mother and the child, which would have "negative implications (and potential risk issues) for [the child], longer term, such as the development of an enmeshed relationship, issues with her identity, and issues in the development of her own emotional competencies".
5. No concerns were reported by Dr E regarding the father or his parenting of, and relationship with, the child.
6. In her second Family Report, in June 2020, Dr E reported (at paragraph 5):
   1. Sadly, during this assessment, whilst [the child] presented roughly on track with her physical developmental milestones (whilst different aspects of her development were not consistently observable in both parents' care, with greater development abilities observed in the father's care), her socio-emotional development was observed to be delayed. [The child] presents as an incredibly fragile child who is lacking resilience, and important age-appropriate socio-emotional competencies. Sadly, her psychological vulnerabilities and the impact of parenting is becoming more obvious with age.

1. Dr E reported (at paragraphs 41-43):
   1. Based off her presentation and responses to extended interviewing and observations, it was clear that the mother possesses limited caregiver sensitivity. There was little ability to focus on [the child]'s needs, as an individual, now and into the future. She had a low ability to hold a mental representation of [the child] as an individual, separate to her and with her own needs. That is, her responses throughout interviewing indicated that her view of [the child] consisted of her own projections, hopes, and expectations, rather a view [sic] of [the child] as a separate little person with her own budding personality and identity. She lacked insight into this, and presented with a low level of openness to change in this regard.
   2. [The mother]'s identity was consumed by her perception of herself as a mother. She described [the child] as allowing her "to be the best version of myself", and that [the child] has made her a better mother and better human. With regards to her parenting, she described that she "backs" herself, and has "no regrets" about the way that she has parented [the child] thus far. The mother was so consumed with her positive perceptions of herself as a mother (and conveying these to the assessor), that she was unable to focus on [the child] and her relationship with [the child]. The mother had limited reflective capacity in this regard. There was no guilt or regret about any element of her parenting, and it is clear that the mother blames others for any potential set-backs in [the child]'s life.
   3. In fact, the mother could identify nothing negative about the parenting of [the child] whatsoever. She spoke only ever glowingly and in positive terms about [the child] and her parenting journey, idealising everything about parenting. This unrealistic representation of [the child] was so extreme, that the mother was unable to even identify a time that [the child] had been upset (other than changeovers, of which she was preoccupied with [sic]). Interviewing indicated that the mother maintains expectations around [the child] and her development that are above-and-beyond her capabilities (with toilet training being just one example).

1. Dr E further reported (at paragraphs 52-53):
   1. [The child] presented as a young child, developmentally different in each parents' care. Her developmental capabilities were observed more-so in the father's care, when compared to the mother. From observations of [the child] with the father, she appeared to be roughly on track, for the most part, regarding her physical, verbal (saying three word sentences), and cognitive development. Sadly, and of concern, [the child] was observed to have significant socio-emotional deficits, and presented as a very vulnerable young child. Specifically, she possessed delays in her emotional regulatory capabilities. ... [The child] seemed to have few age appropriate self-regulatory abilities, where her only two strategies were either dissociation (switching off) or extreme distress (to the point of dry-retching). This was evidenced by the observations of [the child] when she was left on each occasion by her parents, including with the assessor. On a positive note, [the child] made adequate use of her parents to regulate her emotions, including both her mother and her father, but was better able to organise herself around her father.
   2. It is of concern that such delays and vulnerabilities in ones' personality are observable at such a young age. However, it is not surprising given the concerns raised in the initial family report assessment.
2. In relation to Dr E's observations of the mother and the child, she reported (at paragraph 57):
   1. ... During observations with the mother, the mother was asked to leave the room, as she would normally leave at home (the mother was prepared for this prior, in the adult interview). The mother prepared [the child] for her departure, by advising [the child] that she was going to the toilet, and that she would return soon. [The child] initially showed no signs of distress, and continued to play happily, and did not look for her mother nor protest her departure. After a very short period of time, however, [the child] quickly decompensated. She became very flat and withdrawn, and frozen. She was observed to be almost lifeless, keeping still with her eyes fixated on the one spot. The mother re-entered the room, with positive affect, playfully surprising [the child], (saying "boo"). [The child] did not smile, nor show any affectual change (the side of her cheek lifted ever so slightly). The mother sat behind [the child], and [the child] begun to show her toys of interest.

1. Doctor E opined (at paragraph 69) that the child's presentation was of "growing and major concern" (emphasis in original), and that for her "to continue without significant change to her caregiving arrangements, there will continue to be lasting and negative impacts on her development" (at paragraph 70).
2. In relation to the mother's diagnosis, Dr E opined (at paragraph 77):
   1. The exact diagnosis, per se, matters little. What matters most, is how the mother's personality impacts on her parenting of [the child]. In this regard, significant difficulties have been observed with the mother, that are having an obvious impact on [the child]'s healthy development: The mother lacks attunement [sic] to [the child] and her individual needs. The mother does not possess an internal representation of [the child] as her own little person with a growing personality. The mother is adult-led and intrusive in her interactions. She shares an enmeshed relationship with [the child]. She does not allow opportunities for [the child] to develop age-appropriate exploration and autonomy. Her provision of 'care' (that is targeted to a much younger child, misattuned [sic] with [the child]'s needs) comes at the (significant) cost of [the child]'s development of suitable and age-appropriate self-regulatory abilities and social skills.
3. Dr E continued (at paragraph 78-81):
   1. In sum, what this means for [the child], is that she has developed into an incredibly fragile child, with significantly delayed socio-emotional competencies, who's [sic] typical developmental trajectory has been interrupted. [The child]'s developmental potential is not able to be reached in the mother's care, due to the mother's parenting style and associated limitations
   2. The mother is not open to feedback in this regard. She is dismissive of any feedback about her parenting (at the cost to [the child]). She holds the opinion that any set-backs in [the child]'s life are due to external factors (in her perception, the assessors' erroneous assessment and recommendations, and too many changeovers). She has not sought assistance (nor even further independent assessment and feedback from a different professional in this regard). It is therefore unlikely that her parenting of [the child] will change. And, even if the mother was to seek assistance now (and develop insight and openness to change), it is unlikely to change in a developmentally timely fashion for [the child]. This little girl needs urgent help.
   3. Of further concern, is the mother's ability to support the father-child relationship. Whilst she demonstrated during assessment ability to discuss the father in a positive light with [the child], she has a tendency to minimise his role in [the child]'s life, struggles to speak of him as a father in a positive light, lacks trust in his parenting abilities, and continues to seek to reduce [the child]'s time with him. She has also withheld [the child] from time with her father.
   4. Despite this, the mother does have some strengths. Her and [the child] share a bond, and she is [the child]'s primary attachment figure. [The mother] shows incredible warmth and nurturing to [the child]. There is certainly no doubt that [the mother] loves [the child].
4. Again, no concerns were reported by Dr E regarding the father or his parenting of, and relationship with, the child.
5. Accordingly, Dr E recommended (at paragraphs 84-86) that the child "should shift to begin residing in the father's primary care", either by gradually increasing her time with him or by a swift transition thereto.
6. In her third Family Report, in January 2021, shortly prior to the making of the March 2021 interim orders, Dr E noted (at paragraph 4) that there had been several allegations since the last assessment, including "concern having been raised about the potential for 'grooming' and/or sexual abuse whilst [the child was] in the father's care, and that [the child] may have been 'drugged'" (emphasis in original). However, Dr E opined (at paragraph 35) that:
   1. Of greatest concern to the assessor, pertaining to risk issues regarding [the child], is [the child]'s presentation in the mother's care. She is not meeting her developmental potential in the mother's care. She presents as depressed and delayed (with regressed behaviour). She is not emotionally safe in the mother's care, and cannot organise her behaviour healthily and securely around the mother's [sic]. There is a lack of attunement [sic] between mother and child (which is the crux of the attachment issue). The assessor has significant concerns regarding the mother's parenting, and her emotional stability and personality functioning. In addition, there are further concerns regarding [the child] being exposed to multiple intrusive examinations, and the notion that she has been a victim of abuse.
7. Dr E reported (at paragraph 66):
   1. Similar to previous assessments, [the child] presented with very different developmental capabilities in either parents' care. Her development capabilities were observed more-so in the father's care, when compared to the mother. From observations of [the child] with the father, she appeared to be roughly on track, for the most part, regarding her physical, verbal and cognitive development. She had developed in confidence since the last assessment, but remained fragile and cautious.
8. Given the concerns raised regarding the potential of the child having engaged in sexualized behaviour and the sexual abuse allegations, Dr E invited both parents to complete objective psychometric testing relating to the child's behaviour. Doctor E reported (at paragraph 69) that "the father scored [the child] entirely within normal limits, with no elevated scores across either of the subscales" (sic). However, the mother "elected not to complete the assessment, stating that the assessor was not a 'safe' person to discuss such matters with" (at paragraph 70).
9. In relation to her observations of the mother with the child, Dr E reported (at paragraph 74):
   1. The mother whispered to [the child] throughout the entirety of the observation session. [The child] whispered to the mother the entirety of the observations session. [The child]'s presentation during the observations session was of concern. [The child] presented with depressed and blunted affect, smiling only once throughout the entire observation session (at the end and in conversation about the father). She presented as quiet and reserved. [The child]'s verbal output remained incredibly limited for an almost-three-year-old, whispering brief words and occasions short sentences to her mother, or choosing to communicate non-verbally at other times. She did not show age-appropriate exploration of her environment. Her play was observed to be incredibly limited (i.e., putting monkey's together, some limited play with blocks that the mother instigated and built), and regressed (i.e., what might be expected of a much younger child, for example, banging the ball with an object from the doll's house) lacking age-expected imaginative and pretend play. She presented as confused and unsure. She appeared to be confused about how to organiser her behaviour. She could be described as regressed, and depressed in the mother's care.
10. Conversely, in relation to her observations of the father with the child, Dr E reported (at paragraph 76):
    1. The father sat with [the child] and begun to speak in a typical volume, and play with [the child]. [The child] begun responding in an audible voice, immediately, and confidently. There was a dramatic and marked observable immediate change in her verbal skills, confidence, organisation, and affect. [The child]'s head lifted high, she began to engage in play independent of the father, she began speaking confidently and audibly, and presented as happy. She was clear in the intention of her behaviour. She begun [sic] asking the father a multitude of questions, with continual chatter as would be expected of a typical almost-three-year old child. The pair played synchronously, and with much chatter and excitement displayed by [the child], spontaneously. [The child] was observed to smile throughout, and her affect was dramatically different to that in the mother's presence. She was observed to show excitement over the toys and objects and play scenarios, including her father in this, with her father responding appropriately, adequately sharing in the joy and excitement, and scaffolding her play and allowing for age-appropriate autonomy. [The child]'s play was observed to be typical of a three year old child, where she was imaginative and engaged in a high-level of pretend play. The pair (child-led) set up an elaborate imaginative play session, with an entire home, kitchen and meals, with elaborate details in the imaginative play (for example, the assignment of characters and roles, with minor details attended to). This was all instigated by [the child], with gentle scaffolding (echoing and questioning) by the father, to allow for age-appropriate mastery and exploration. This is typical play for an almost three-year-old child. The father was observed to be responsive. [The child] explored and sought independence throughout, with synchrony in their interactions. [The child]'s play and behaviour was organised, logical, and congruent. This play session was indicative of a secure attachment, with an adequate level of attunement by the father.
11. In relation to the mother's allegations of sexual abuse of the child by the father, Dr E reported (at paragraph 84) that she spoke by telephone with the medical practitioner upon whom they attended, who advised that she "did not hold concerns about sexual abuse based on the information obtained during this consult [sic], and thus, did not notify child protection authorities".
12. Dr E reported:
    1. Similar to previous assessment [sic], there were major concerns noticed in [the child]'s presentation in her mother's care. In her mother's care, [the child] presented with flat and blunted affect - she could be described as depressed. She had limited verbal output. Her play was incredibly restricted, lacking in imagination. It was regressed. It lacked coherence, with lose associations. Her speech was impoverished, whispering throughout, with incredibly limited expressive speech. She did not explore her environment as a typical three year old should. Her head remained lowered for much of the observations session. She appeared confused as times, and unsure what her response should be and unsure of what she should do. There was an obvious lack of independent thought and feeling, looking to the mother for guidance. The relationship is described as lacking attunement, and as enmeshed. In sum, [the child] lacked emotional safety in this relationship.
    2. In stark contrast, [the child] presented very differently in the father's care. [The child] presented in the father's care as euthymic (normal) in her affect, with much joy and excitement throughout. She explored her environment appropriately for her age, whilst seeking proximity to the father as required. She was incredibly imaginative in her play, instigating an expansive imaginative play scene with characters, and roles, with appropriate scaffolding from her father. Her play was synchronous and logical. She spoke at an audible level with expansive expressive speech that was appropriate for her age, and appropriate in rate, rhythm, volume and content. Her speech and play was logical and coherent. Her head was held high, and she displayed a range of emotions throughout. She was confident, and congruent. [The child] experienced emotional safety in the father's care.
    3. [The child] in the father's care can be described as developmentally on track, and as emotionally safe. [The child] in the mother's care is regressed, delayed and depressed, lacking emotional safety. There are serious and significant protective concerns for [the child] in the mother's care.

1. In the circumstances, Dr E reiterated her previous recommendation that the child should shift into the father's "full-time and primary care" and, this time, recommended that she do so "as soon as possible" (at paragraph 95) (emphasis omitted) and that her time with the mother be professionally supervised (at paragraph 106) and that the father have sole parental responsibility for her (at paragraph 112). In relation to professional supervision, this was because Dr E opined (at paragraph 106) that:
   1. ... [The child] does not present as emotionally safe in her mother's care, and presents as regressed, and depressed. Furthermore, the mother's judgment with regards to [the child]'s best interests remains significantly impaired. [The child] shares an enmeshed relationship with her mother (which is unhealthy and in need of significant intervention). Their interactions require professional monitoring and guidance.

1. Dr E concluded (at paragraphs 113-115):
   1. Whilst it is understood that the parents' evidence may require testing in the Courts, the three family report assessments on this little girl have raised such significant concerns about her development in the mother's care (and the mother's parenting), that the recommendations remain, regardless of whose evidence is accepted in the Courts. It is clear, based on observations alone, that this little girl needs to shift into the father's full time and primary care, where she is afforded greater opportunity to meet her developmental potential, and where she is protected from the detrimental impact of her mother's parenting.
   2. This is an incredibly sad case. This is a very serious example of poor maternal mental health (regardless of the diagnosis) and the negative impact that it can have on ones parenting, and on the developing child, and on the father-child relationship. It is sad that the mother has not received the assistance required to be in a position to effectively parent [the child]. On a positive note, however, we know and understand the evidence-base regarding early intervention for children. In the father's care, with professional guidance, [the child] will be afforded the opportunity to continue to develop on a suitable trajectory, moving forward. And hopefully the mother will seek the help that she requires to be able to have more substantial time with [the child].
   3. On a final note, this report will most likely be interpreted as disadvantageous to the mother in Court proceedings. With the potential threat of having reduced time with their child, any parent may become desperate in attempts to avoid an outcome in Court where their time with their child is at risk of being reduced - particularly a parent with mental-health concerns such as [the mother]. Care and action may need to be taken to mitigate any risk-issues that might present themselves. Supervised time will be an important part of this process.

1. Yet again and, in the circumstances, self-evidently, given her recommendations, no concerns were reported by Dr E regarding the father or his parenting of, and relationship with, the child.
2. It was following Dr E's third Family Report that the March 2021 interim orders were made.
3. Thereafter, by email dated 13 January 2022 to the Independent Children's Lawyer (Exhibit ICL-2), Dr E advised that-

... unfortunately I am not going to be much help to you for an updated report in this matter...

It is my understanding that a complaint has been made against me in this matter to the Health Complaints Commissioner, who referred the matter to AHPRA.

Whilst I understand the HCC has closed the case with no further action, there remain AHPRA processes underfoot. I have been told that there are no clear time-lines for this process, as there is a current back log and they are significantly delayed with other covid-related matters. They advised that there was not cause for immediate action, as the notification was deemed 'low risk'. I am not privy to the details of the nature of the referral at this point (as it is yet to be assigned to an Officer), but am aware of who the complainant is.

1. As referred to above, it does not appear to be seriously in issue that the complaint, which was made in relation to this matter, was made by or on behalf of the mother. Indeed, given the contents of Dr E's reports, it is inferentially manifest that the complaint would not have been made by the father. Further, as is clear from Exhibit ICL-2, Dr E was advising the Independent Children's Lawyer of the complaint. By the date of Dr E's email, the Health Complaints Commissioner had "closed the case with no further action" and there is no suggestion, let alone evidence, that processes of the Australian Health Practitioners Regulation Agency ("AHPRA") which remained "underfoot" in January 2022 have resulted in any adverse outcomes against Dr E.
2. In Ms R's first Family Report, in July 2022, she described the father (at paragraph 36) as having presented as an "articulate and quietly spoken man", who "portrayed a calm demeanour and offered considered and thoughtful responses to questions asked of him". Those observations accord with mine, in the course of his cross-examination, albeit brief.
3. Ms R reported (at paragraph 47) that the mother "presented similarly to descriptions provided by Dr [E] and Dr [G] [sic], in that she is talkative, engaging, verbose in her descriptions and at times tangential".
4. As to the parenting relationship between the parents, Ms R reported (at paragraph 59):
   1. The parents currently have limited capacity for any co-parenting or communication. [The mother] holds a somewhat idealistic view that the parties could, after the completion of proceedings and without the interference of the paternal family and settlement of the financial issues, communicate. The writer holds a view that communication between the parents is fraught with complexities and difficulties that would require third party oversight or assistance for the parties to enter into any communications with shared understanding that did not slip into difficult dynamics, misunderstanding and mistrust.
5. Similarly, Ms R opined (at paragraph 86) that "it is questionable if the parties can enter into any constructive communication or negotiations or have any capacity for co-parenting into the immediate future. Communication is likely to require some form of third-party assistance or monitoring". Further, at paragraph 94, Ms R opined that "given the complexity and communication difficulties outlined between the parents' capacity for co-parenting seems limited and therefore equal shared parental responsibility is likely to be difficult at this stage".
6. Ms R reported (at paragraph 79):
   1. There was nothing in [the child]'s presentation for this assessment that would raise alarm or any cause for concern in relation to her everyday care. There was nothing that alerted the writer that any notification to child protection authorities would be necessary. There are however some limitations on making comments regarding [the child]'s development. She presented as timid and shy with the writer. These interactions were reflective of [the father]'s descriptions of [the child]'s tentative behaviour or confidence in social settings. Other observations of [the child]'s development indicated mastery of several skills, especially in relation to curiosity, play, vocabulary, letter, word, number recognition and problem-solving skills. Some of which may surprise and indicate a maturity beyond her young years in this regard. Whilst this may suggest [the child] is learning and she seems to have mastered these educational tasks, she was shy and hesitant with the writer. Whilst allowing for a foreign environment, the writer as a new and unknow adult and the added overlay of a first in person contact with her mother for several months, it is still difficult to comment fully on her social and emotional development. [The father] reports improvement for [the child] over the last six months in this area, a growing confidence.
7. Ms R acknowledged (at paragraph 83) that the "noted risks in relation to [the mother's] mental health and any additional personality dysfunction diagnoses that may lead to risk of harm to [the child] and impact [the mother's] capacity to provide safe care to [the child] is of concern". However, she opined (at paragraph 84) that:
   1. To some degree and in part, the initial risks around [the child]'s developmental trajectory that were identified and contributed to the change of residence have been somewhat mitigated. [The child] is past the vulnerable stage of infancy.
8. In relation to the mother, Ms R opined (at paragraph 87) that she presented as "a vulnerable woman" and that "[w]hilst her interactions give an impression of high levels of interpersonal skills, there are underlying issues potentially exacerbated by court proceedings and her role as an in-person litigant" (emphasis added). However, she continued (at paragraph 88) that, "[w]ithout a clear and current diagnoses [sic] of [the mother] in relation to any personality dysfunction, treatment and oversight it is difficult to further assess any subsequent risk this may pose to [the child] and offer any suggested risk mitigation strategies to be considered".
9. Ms R reported (at paragraph 91):
   1. [The mother] is seeking equal shared parental responsibility, that [the child] is returned to her primary care and she spends alternate weekend time with [the father]. In the absence of ongoing spend time and spend time [sic] which sees [the mother] in an everyday parental role, it is difficult for this assessment to support [the mother]'s proposal. Whilst [the mother] and [the child] clearly share a good bond, [the mother]'s capacity to parent [the child] at [the child]'s current developmental stage is untested. It is undetermined to what extent [the mother]'s mental health issues pose ongoing significant risk to [the child], or what indeed is her diagnoses with regards to the issues raised in previous assessments throughout these proceedings and any subsequent treatment plan. In addition, it is also untested if [the mother] can facilitate an ongoing relationship with [the father]. For [the child] to have yet another significant disruption to her primary parent relationship and difficulties in any regular and ongoing spend time post the change, may be compounding harm to [the child]. Most importantly in the absence of the above information on [the mother]'s capacity to parent [the child] been available to the court, another change to [the child]'s primary parenting arrangements at such a young age may very well be destabilising for her
10. As at July 2022, a month prior to the commencement of the trial, Ms R opined (at paragraph 96) that this was not a matter which warranted orders being made for no time to be spent between the mother and the child:
    1. ... [The child] would ultimately loose [sic] a relationship with her mother who she has a good and strong bond with. ... [The child] has a relationship with her mother, she has a connection based in an early childhood experience of being in her mother's primary care. If the court were to determine there was an unacceptable level of risk to [the child] spending time with her mother severing the relationship between her and mother may cause harm to [the child] in the longer term. Consideration may be given to less frequent supervised time, such as monthly.
11. In the circumstances, Ms R recommended that the child continue to live with the father and spend supervised time and have FaceTime communication with the mother.
12. Nearly three years later, in preparation for the resumption of the trial, Ms R prepared her updated Family Report in May 2025.
13. In respect of the mother, Ms R reports (at paragraph 17):
    1. [The mother] is seeking procedural fairness alleging bias in these proceedings. There is a raft of litigation concerns that she reported she wants addressed. These issues are not within the remit of this report or the writer's areas of expertise to comment on. Ultimately, she wants a relationship with [the child], to be actively involved as a mother in her life. She reports ongoing concerns that [the child] is subjected to abuse by [the father], coercive and controlling family violence, and she wants [the child] to be given a voice in these proceedings.
14. In respect of the father, Ms R reports (at paragraph 18) that:
    1. ... he worries that [the child] is at emotional and psychological risk because of [the mother]'s mental health, personality dysfunction, and the way she conducts herself. He opined that there is risk that [the mother] will continue to make baseless allegations of harm perpetrated by him, engage in ongoing litigation, that will ultimately be harmful to [the child], and could compromise her ability to experience a carefree and unencumbered childhood.
15. Ms R further reports, in respect of the mother, that she described the assessment process, for the preparation of that Family Report, as "unsafe for her and regards that it will be weaponised against her" (at paragraph 20) and (at paragraph 19) that:
    1. ... She continues to report feeling attacked, "disparaged", and struggling with not spending any time with [the child], proportioning blame for this to [the father], and what she describes as his ongoing perpetuation of coercion and control, including towards [the child]. Her presentation was largely commensurate to that noted in the previous assessment in this regard, however, the writer noted that she seemed to present with a high degree of focus on the litigation at this time. ...
16. At paragraphs 21-22, Ms R reports:
    1. ... [The mother] said she does not want her address disclosed and perceives that this may undermined [sic] her safety. [The mother] was provided feedback from the writer that [the child] had specifically requested she be able to send her mother cards and pictures. [The mother] maintained that it is unsafe for her to disclose her address, and places her at risk because of [the father]'s perpetration of family violence, she said she cannot afford to pay for a post office box for any reciprocal gift sending, and she will only agree to a courier service.
    2. [The mother] impressed as largely preoccupied by the litigation and Court processes asserting throughout the assessment that she regards the process has been somewhat hijacked by systems abuse, and bias. She opined that only she places [the child] as at the forefront of the Court, that [the child]'s name is hardly mentioned, and she wants [the child]'s voice to be heard. [The mother] questioned the writer on how the writer interprets "60 cc" principles of the Family Law Act, she queried how questions would be posed to [the child], outlining concerns that the way questions are framed can illicit differing responses, and asked if [the child]'s interview will be recorded. She furthermore advised that the writer's previous assessment was not widely acclaimed, generally dismissed, and reported that she regards this assessment as a "tick box" exercise, and that the report will likely be of limited value.
17. In contrast, Ms R reports (at paragraphs 23-24):
    1. [The father] presented as friendly and co-operative. He offered an empathetic narrative in relation to [the child]'s experiences outlining that she misses her mother, she loves her mother and wants to see her, that this is difficult for her, and that she will tell the writer she wants to live in a week about arrangement. [The father] offered descriptions of [the child], her developmental trajectory, that as she has matured, commenced formal education, and questions about her mother have become more difficult and confusing for her. He impressed as wanting to protect [the child], preserve a carefree and unencumbered childhood for her, shield her from the issues in the ongoing conflict and litigation.
    2. [The father] answered questions asked of him fully, in a considered and thoughtful fashion, he did not denigrate [the mother] but expressed that in his view her mental health may have deteriorated, that she maintains a high degree of litigation focus. He presented with a degree of litigation fatigue and exasperation that the process continues and seems never ending. He expressed a degree of sadness, a sense of responsibility, and feelings of guilt that the paternal family have faced excessive legal costs, resources that could otherwise be directed towards [the child]. He indicated that there are times when he finds it difficult to look to [sic] far into the future, especially if this might entail continual embroilment in never ending litigation, complaints, and appeals. ...

1. Ms R opines (at paragraph 25) that "[h]is overall narrative suggested a dedication to [the child] and her care and development, that he shares a good relationship with her".
2. Ms R reports (at paragraph 40) that the father "presented with a good degree of child focus and insight into the everyday and longer term needs" of the child (emphasis added).
3. In contrast, the mother:
   1. ... presented with a degree of competency and organisation in that she was well prepared, can identify everyday care needs for [the child], good food, hydration, socialisation, and age-appropriate activities, clothes, toys, and games. However, [the mother]'s overall presentation gave rise to concerns about her capacity to prioritise [the child]'s needs. Her narrative reflected a preoccupation with the litigation, procedural unfairness, and bias, which equated to systemic abuse in her view. Her concerns about [the child]'s care seemed fixed and somewhat distorted, viewed through her prism of [the father]'s alleged coercion and control, and that [the child]'s experiences reflected hers or those that mirrored hers. She seemed to struggle to accept [the child]'s experiences as different from her perceptions of [the father] and the alleged family violence. [The mother] struggled to offer information on how [the child]'s needs will be met, or how [the child] might now experience separation from [the father] and the paternal family and focussed on the impacts of [the child]'s separation from her several years ago. She did not seem able to demonstrate reflective parental functioning in this regard and struggled to take feedback.

1. Ms R reports (at paragraph 42) that the child presented as "a well-cared for and delightful young child, very chatty, who entered long and complex conversations" with her; that the child's "narrative suggested protection from exposure to the Court proceedings and a degree of innocence or naivety"; and that she presented as "experiencing protective care and as commensurate with her age and stage".
2. Ms R reports (at paragraph 44) that the child:
   1. ... advised that one of the most confusing things for her was that she asked her mother where she lives, and she "won't tell me where she ([the mother]) lives". She said she does not understand why, as her mother knows where she lives, and [the child] wants to send her presents and pictures. [The child] advised the writer that she had presents to give her mother that she had saved up. ...
3. As to Ms R's observations of the interactions between the mother and the child, she reports that, although "[t]here was nothing in the observation that would have caused [her] to intervene" (at paragraph 53), nevertheless (at paragraph 55):
   1. Of significance was [the child]'s demeanour throughout, she seemed to go from a carefree chatty child to a quieter, and more withdrawn child. This was observable at the beginning of the observations, but also throughout the entirely [sic] of the observations. She answered her mother's questions, played with her, exchanged gifts, and engaged in some chatter, however, her uninhibited presentation during interview with the writer, and observed with her father, was noticeably different when with [the mother]. With her mother she spoke in a quieter voice, she gave less fulsome or verbose commentary and did not answer some questions, such as when asked by [the mother] if she was going back to [sports], [the child] said nothing, did not respond, and went quiet. There were gaps in the conversation flow and as the time progressed during the observation, the two displayed a lower energy level, than at the start. They took selfies with a polaroid camera and measured their hands and heights. [The mother] responded to cues from the writer when it was time to leave, packing up and hugging [the child], swinging [the child] off the ground, which [the child] responded to with smiles. [The child] separated from her mother without distress and notwithstanding that [the mother] reported finding this separation difficult, she retained her composure and emotional regulation in front of [the child].
4. However, when the father joined the child after the observations with the mother, Ms R reports (at paragraph 56) that "she seemed to return to her more chatty self".
5. As to her evaluation, Ms R reports (at paragraph 60) that there was no information available to her that suggests there is any immediate risk to the child's care with the father and that there were no current child welfare concerns. To the contrary:
   1. The information available suggests [the father] has been a stable and secure presence for [the child]. He is a committed and safe parent that is part of a supportive extended family and is actively engaged in providing predictable, and safe parenting to [the child].
6. Rather, Ms R reports that "[t]he concerns for [the child's] overall care, safety and wellbeing that appear to be a feature in this matter, are those that are raised by" the mother (at paragraph 61).
7. At paragraph 63, Ms R refers to the March 2021 interim orders providing (inter alia) for supervised time that "have been in place for some time" and that "has not occurred". She opines that this "is a concerning feature of this matter at this juncture, as it is very likely difficult for [the child] that [the mother] has not taken the opportunity to spend in person time with her, even if the lower cost community operated supervision services can be challenging in nature, and more limited".
   1. ... Additionally, whilst the writer acknowledges [the mother]'s reported fears and concerns for [the father] having her contact details, it is also perplexing as to why other alternative address details have not been considered and provided to [the child], particularly as [the child] has requested this, and also given [the mother]'s concerns for [the child] and the trauma she reports that [the child] has experienced as a result of their severed relationship.
8. Ms R continues at paragraphs 64-65:
   1. It is now an unfortunate situation that the relationship [the child] shares with her mother is one of regular video calls that are reported to be fraught at times. The parents report divergent reasons for this. It is noted that [the mother] reported that [Ms S] is observing video calls, whether for her own protection, [the child]'s protection, or for litigation purposes is not entirely clear. Notwithstanding either parents' narrative this is likely a difficult situation for [the child], she is older now, more aware of the nature of her relationship with her mother, and her own family constellation. [The child] is aware that she cannot know where her mother lives, that other children are cared for by their mother's [sic], and she is beginning to question or seek to understand these complexities in her own life. Her only regular communication with her mother is through these monitored calls.
   2. [The child]'s overall presentation at interview did not give rise to concern for her everyday care or alert the writer to any risks in her current care arrangement. Observations suggest that she shares a close and familiar relationship with her father. His presentation indicates that he is considerate, thoughtful, and child focused. [The child] appears to be developing well. She presents as bright, with a good vocabulary, memory, social skills, and conversational skills that may be regarded as above average for her age. Her discussions at times reflected a depth that might ordinarily be seen in an older child and the writer notes that her well-developed verbal skills and vocabulary may contribute to this more advanced characteristic of her presentation. She is however, still only 7 years old and requires the stability and emotional support that younger children require. She is still relatively concrete and lineal in her developmental thinking and processes.
9. Ms R reports (at paragraph 66) that the child presents as "an unencumbered and carefree child", as well as-
   1. ... a delightful young child traversing childhood in an ordinary fashion, and she is meeting her milestones. Her reported views at interview did not appear to be influenced, they seem her own, from her own thoughts' feelings and experiences, that she seems to be free to express, and indeed encouraged to express by her father. She reported as [the father] said she would, that one week with each parent could be ideal, however, she has no context for this arrangement and reported no knowledge or notion about how this would be. She loves her mother; she wants to see her and is beginning to express some confusion over the situation. Especially in relation to not knowing where [the mother] lives. While it is important that the Court listen to [the child]'s views, she is still young, has little contextual experience to offer commentary on her living arrangements, and it is likely that the Court will need to prioritise her need for safe and developmentally appropriate care, over any views she may report.
10. Ms R reports (at paragraph 68) that the mother's "overall presentation and narrative over the course of [the] assessment gave rise to concerns" and that "the information available for the preparation of this report coupled with [the mother's] presentation at assessment does give rise to questions about her overall capacity to provide child focused and attuned care" to the child. Further:
    1. ... Whether a distortion in her perception, or a difficulty in separating out her own views to those experiences of [the child]'s, or whether [the mother]'s perceptions are fuelled by mental health or personality dysfunction is difficult to fully comment on. It did, however, seem for this assessment, that some of [the mother]'s perceptions did not seem congruent with [the child]'s reported views and presentation. [The child] did not present with any fears of her father; she seemed unburdened by problems and is ensconced within a protective community with many eyes on her.
    2. The writer observed that [the child]'s overall demeanour and presentation with her mother was noticeably different to that with her father and with the writer. [The child]'s chatty and carefree commentary that was evident with the writer and in observations with [the father] changed with [the mother]. [The child] had advised the writer happily in conversation that she stopped playing [sports] because it was "too rough" for her. She sat quietly and did not respond at all to [the mother]'s same question. ...
11. Mr R further observed there that, in respect of the child, "it seems that she is not as carefree with her mother, she is adapting her behaviour to the situation"; that she does not fear the father "but that she seems unsure how to respond to her mother"; and that FaceTime communication "is likely difficult for [the child] to navigate".
12. In the circumstances, Ms R concluded:
    1. This assessment supports that [the child]'s current living arrangements should remain as they are. That is, she lives with [the father], and he have decision making responsibility for her. For [the mother] the issue of how she might spend time with [the child] seems complex. [The mother] was observed to be attentive and kind, [the child] has a relationship with her, [the father] reports [the child] loves her mother, and [the child]'s views suggest that she wants to spend time with her mother, she enjoys the video calls, and she also very much wants to be able to send her mother artwork and other gifts. This is now a difficult situation. For the Court to consider [the father]'s proposal for no time and no contact between [the child] and [the mother] would necessitate a severing of any relationship and connection between the two. This will be difficult for [the child] and whether the concerns for [the mother] suggest such an arrangement is warranted is an issue the Court may need to make a determination on. A severing of the relationship in totality will be impactful to [the child], on her sense of identity and development, especially as she develops into adolescence whereby, she may begin to question these decisions, and the state of her current family relationships.
    2. This may not be a matter where no contact between [the child] and her mother would be considered, a proposition previously put forward in the previous assessment by the writer in 2022. However, it is very difficult at this juncture to assess how an ongoing relationship between the two could be conducted, and whether this would lead to further or more litigation, allegations of risk, and disruptions for [the child]. [The mother]'s behaviours, in that she has not attended supervised time, that she has made ongoing allegations of risk that do not seem to be supported, along with a focus on the litigation, and what presents as a limited capacity to retain a child focus, does raise concerns about how a relationship between [the child] and her mother can move forward. It is most difficult for children who find themselves embroiled in ongoing litigation. While [the child] presents as largely shielded from the litigation at this time, this may not always be so into the future, especially if there are continual allegations of risk and any further proceedings. As [the child] grows and develops her entwinement within any future or further litigation may become more so, she will likely be called upon to respond to allegations of risk either by the Court or child welfare authorities. It is also the impact on the parental focus that presents as an issue in protracted litigation as it ultimately detracts parental resources, both financial, time and focus away from the growing child, who will begin to form their own perceptions and ideas about themselves and their family. This can adversely impact a child's sense of self, they can develop schisms in their own sense of identify and their developmental trajectory can be adversely impacted.
    3. It may be that the Court is required to decide on whether the benefits of retaining connection and relationship between [the mother] and [the child] is in [the child]'s best interests, or, if any risks associated with this may outweigh any benefits. This may be a matter where the testing of evidence is required, and the Court may need to make findings on the nature of the risk that [the child] faces prior to Final Orders.
13. Ms R also opined that:
    1. There are aspects to this report that are likely to be very difficult for [the mother], and it is recommended that there is considered release of the report, it may be that she read the report with her psychologist [Mr D].
14. In circumstances, the report was released in Court, in the presence of the mother, on 5 June 2025, where representatives of Family Advocacy Support Services were available, should she seek to avail herself of their assistance. However, she advised the Court that she did not wish to do so. Rather, she said that she would read it in the presence of Mr D, at a later time.
15. In the circumstances, Ms R's expert opinion, in her second Family Report, which was unchallenged by the mother, and upon which both the father and the Independent Children's Lawyer rely, was that the child continue to live with the father; the father have sole parental responsibility for her; the mother receive ongoing updates regarding the child's progress; and that the child either spend supervised time with the mother on four occasions per annum and monthly FaceTime calls or spend no time and have no regular communication with her; and that the mother be at liberty to send letters, cards and gifts to the child on special occasions, such as her birthday and Christmas.
16. Ms R was cross-examined only by counsel for each of the Independent Children's Lawyer and the father in the morning of the second day of the resumed trial, as the mother refused to do so.
17. In cross-examination by counsel for the Independent Children's Lawyer, he put the mother's conduct in Court over the preceding day. There was the following exchange between counsel for the Independent Children's Lawyer and Ms R:

Counsel for the Independent Children's Lawyer: "... It will be my submission that as a result of that [the mother's failure to engage with the proceedings], that the court will be bound to accept the assertions that - the father's assertions, and his witnesses', that the mother has engaged in what I would describe as an unrelenting campaign of false allegations of family violence against her and [the child], said to be perpetrated by the father and the paternal grandparents. That I would be submitting that the court is bound to accept that the mother has unnecessarily involved [the child] in various investigations as a result of those allegations, and examinations, that the court will be bound to accept that based on the father's evidence that the mother's attitude is that she has an unrelenting belief that [the child] will be at risk of family violence whilst in the father's care, and that it will be my submission that there is no evidence to support that belief. It will also be a submission on behalf of the Independent Children's Lawyer that it's likely, given the history of this matter, that the mother will continue to embroil the father and [the child] in further litigation or complaints to police or child protection or other agencies. There's a lot of assumptions there that I've put but if his Honour accepts that as a premise of the state of the evidence, in those circumstances, although it's in the end a matter for the court to determine whether there is an unacceptable risk to [the child] and whether that outweighs any meaningful relationship and any benefit that would arise from [the child] maintaining a relationship with the mother, in your opinion, does that put this matter into the realm of an unacceptable risk in your view that outweighs the benefit of the meaningful relationship?"

[Ms R]: "I think it certainly tips the scales in that way, yes"

Counsel for the Independent Children's Lawyer: "And if that's the case, you in your report made recommendation at paragraphs 79 of your updated report that if the court were to determine that the risk to [the child] of maintaining an ongoing relationship with the mother supersedes any benefit to [the child] then consideration is given to no time and no regular contact and consideration be given to an exchange of special occasion, birthdays and Christmas cards. Based on that factual and evidentiary matrix I've given you, is that the recommendation that you would consider most appropriate in this case?"

[Ms R]: "Yes."

1. This was followed by a further exchange between counsel for the Independent Children's Lawyer and Ms R:

Counsel for the Independent Children's Lawyer: "just in relation to your interview with the father on the most recent occasion earlier this year, you indicated at paragraph 24 of your updated report, this appears at page 132 of supplementary court book your Honour, in relation to [the father], you commented that he presented with "a degree of litigation fatigue and exasperation that the process continues and seems never ending. He expressed a degree of sadness, a sense of responsibility and feelings of guilt that the paternal family has faced excessive legal costs, resources that could otherwise have been directed towards [the child]." You indicated that there are times in which he "finds it difficult to look too far into the future, especially if this might entail continual embroilment in never ending litigation, complaints and appeals". Do you recall that conversation?"

[Ms R]: "Yes"

Counsel for Independent Children's Lawyer: "If I put it to you that on the basis of the father's evidence, that the long term effect of the mother's behaviour, generally and in making what the father would say were repeated and unsubstantiated allegations against him and his family, and what I would submit is the mother's relentless pressure to have the father modify the court orders that have been in place for some time, that that would have exacted a serious toll on the father and that may indirectly or directly affect his parenting of [the child]"

[Ms R]: "Yes. It would"

Justice Strum: "Sorry, it was put to you that it may, did I hear you say that it would?"

[Ms R]: "Well yes, yes, it very likely would, probably would be a more appropriate answer."

Counsel for the Independent Children's Lawyer: "It appears to this point, that from your conversations, that [the child] has largely been protected from the effects of this litigation. Is that correct?"

[Ms R]: "Yes."

Counsel for the Independent Children's Lawyer: "But [the child] is now 7 and getting older. If there were further litigation moving forward, is it your view that it would be more difficult to protect [the child] from the effects of any further disputes and litigation between the parties?"

[Ms R]: "Um yes, I think that I did allude to that in my report but as she gets older it is very likely that she will be called upon for more interviews and become more aware of litigation into the future, yes."

Counsel for the Independent Children's Lawyer: "And is it fair to say that that would be very detrimental to [the child]?"

[Ms R]: "yes"

1. When asked about any changes observed in the mother between her first and second reports, Ms R opined that she had become more entrenched and pre-occupied with the litigation, which pre-occupation "[took] up a lot of space".
2. In cross-examination by counsel for the father, Ms R confirmed that the mother has strong fixed views about the father and that she may continue to try to obtain what she considers just. She agreed that school is a "safe space" for the child and that it would be in the child's best interests for it to be protected by restricting the mother's access to information, which she might use to circumvent orders of the Court. She agreed regarding of the mother's lack of insight, including in her FaceTime communications with the child and the possibility that they destabilise the child's emotional and psychological stability. She opined that, although extreme, it might be in the child's best interests for her not to have any ongoing FaceTime (or, implicitly, like) communication with the mother. She agreed that it was a credit to the father that he had complied with orders of the Court and endeavoured to foster the relationship between the child and her mother.
3. In relation to her second option in her Family Report, namely, that there be no time spent and no communication between the mother and the child, Ms R agreed that severance of the relationship between them was the "least bad option" and the "clearer pathway forward". She agreed that it was "absolutely" important to protect the child's primary carer, as well as the child, from "vexatious or abusive" litigation. She agreed that the mother's longstanding failure to avail herself of the opportunity to spend time with the child, albeit professionally supervised, pursuant to the March 2021 interim orders did not "augur well" for the future. She agreed that the mother's view, that everything was the fault of someone else, and never herself, solidified her concerns about the mother's capacity to put the child first.
4. Ms R was an impressive expert witness, whose evidence in her two Family Reports was reinforced, and augmented, by her viva voce evidence in cross-examination by counsel for the father and the Independent Children's Lawyer, and not challenged by any cross-examination by the mother, despite the opportunity to do so. I accept her evidence unreservedly.

1. Responses to orders made pursuant to s 69ZW of the Act by the Department of Health and Human Services (as it was then called) dated 4 January 2021 (Exhibit H-18) ("first departmental response"), 4 February 2021 (Exhibit H-19) ("second departmental response") and 27 January 2022 (Exhibit H-20) ("third departmental response") were tendered.
2. The first departmental response recorded that there had been six reports against the father, his parents and the mother's parents, in relation to the child and the mother, alleging, inter alia, family violence, as follows.
3. In respect of the period between 5-7 November 2018, it was assessed that the child was not at immediate risk of harm and the case was closed at the intake phase and the professed concerns were not investigated. However, despite the mother's allegations, the response records:

Follow up with Victoria Police did not reveal any historical reported family violence between [the father] and [the mother]. [The mother] was however recorded as a perpetrator of family violence in a previously [sic] relationship, dating back to 2016.

1. In respect of the period between 12 June-10 July 2019, reference was made in the response to a recommendation by the department that the father attend a men's behaviour change program, but the case was similarly closed at the intake phase and the professed concerns were not investigated.
2. In respect of the period between 13-31 December 2019, it was reported to the department that -

an unknown person was observed taking photographs of [the mother's] home and that [the father's] parents may have 'bugged' the home. It was alleged at the time of the report that [the father's] parents are in a cult, of which all the members are against [the mother] and have access to substantial finances.

1. It was further reported to the department that "there was a history of family violence perpetrated by [the paternal grandfather], including a time when he pointed a rifle to [the mother's] face, threatened to shoot her and take [the child] from her". Nevertheless, again, the case was closed at the intake phase and the professed concerns were not investigated.
2. In respect of the period between 7-28 September 2020, when the department received a report regarding a risk of physical harm to the child, after she presented with supposedly unexplained physical injuries following time spent with the father, the case was closed following an investigation (which included an interview of the father) and the reported concerns were not substantiated. The departmental response in relation to this report records allegations by the mother of the father "often looking down on her" and proffering "dismissive responses" to her. The response also records as follows:

[The mother] further advised that [the child] have previously returned from time with [the father] presenting with an agitated vagina. [The child] was reportedly assessed by a General Practitioner sometime in early 2020, who could not ascertain whether sexual abuse occurred. The exact date was not provided to child protection and it does not appear that Sexual Offences and Child Abuse Investigation Team (SOCIT) of Victoria Police was consulted at the time.

1. In respect of the period between 29 September-2 October 2020, a report was received raising concern for the child due to exposure to family violence between the mother and her parents. It was recorded that an Intervention Order had been made against the mother "after reports by her parents that [she] was verbally and financially abusive and was refusing to leave their home" and that she was, by reason thereof, excluded from their home. Yet again, the case was closed at the intake phase and the concerns were not investigated.
2. In respect of the period between 27 October-6 November 2020, a report was received raising concerns regarding sexual abuse of the child whilst in the care of the father. It was reported that she presented with inflammation to her vagina on two occasions following time spent with him, most recently on 13 October 2020. It was alleged "that due to the conditions of Family Law Orders, [the mother] is no longer able to seek medical assistance for [the child] without [the father's] permission" (sic). It was recorded that "[f]ollow up occurred with SOCIT, who did not take any further action due to lack of evidence and lack of pattern and history to suggest criminal offending". It was assessed that "there was insufficient evidence to suggest a significant risk of harm to [the child] ... based on the reported lack of concern by the General Practitioner earlier in the year, use of age appropriate language by [the child], and observations of [the child's] positive attachment to both parents during the most recent child protection investigation". Accordingly, the case was again closed at the intake phase and the concerns were not investigated.
3. In respect of the last period covered by the first departmental response, being current at the date thereof (namely, 4 January 2021), it was reported as follows:

[In late] 2020, Child Protection received a report raising concerns about risk of sexual abuse of [the child] whilst spending time with [the father]. It was reported that [the child's] behaviour changes following time spent with [the father], in that she sleeps excessively and has made concerning comments referencing her vagina such as 'it's time to massage my vagina'.

Reporter raised concerns about possible sexual abuse by [the paternal grandfather], due to an alleged previous sexual relationship in the 1990s with an underage babysitter, and previous possession of pornography depicting 'young women'.

It was further reported that [the father] and his parents are attempting to alienate [the mother] from [the child].

[The child's] presentation was also reported to change in the care of [the father], with excessive sleeping and difficulty eating.

1. It was recorded that, on 14 December 2020, a decision was made to progress the case to a child protection investigation, including "to determine the root cause of the alleged sexualised behaviours", and, as such, a protective assessment had yet to be made.
2. The second departmental response was, in fact, said to be an addendum to the prior response. It recorded that, whilst "[t]he current report suggests sexual abuse by the paternal grandfather ... however following interviews with family members and [the child] (no disclosures made) this could not be verified". Reference was made to concerns which had been raised in relation to the mother's mental health and the fact that Dr E had recently recommended that the child be placed "in the full-time primary care of her father ... and have supervised contact" with the mother. It was further recorded as follows:

Concerns relating to emotional harm due to [the child's] exposure to family law proceedings and conflictual family dynamics have not been substantiated by child protection at this time. A relevant consideration in this decision has been [the father's] compliance with the recommendations of the family courts [sic] in relation to care and time arrangements.

1. Accordingly, it was assessed that there was "no ongoing role for Child Protection at this time".
2. The third departmental response was provided a year later, on 27 January 2022. It recorded that a report was received on 5 March 2021, which "raised concerns for the father ... withholding contact from the mother" (emphasis added) but that "Child Protection closed the report Intake [sic] with no concerns raised for [the child's] immediate safety and the custody conflict to be addressed in the upcoming Family Law Court [sic] hearing". I note that the March 2021 interim orders were made five days later.
3. Another report was received on 12 March 2021, only two days after the March 2021 interim orders were made-

which raised concerns for [the child] being at risk of harm when in the care of her father ... and her paternal grandparents ... It was alleged that upon returning from [the father's] care, that [the child] is disorientated, had extreme lethargy, confusion, sadness, anger and heightened sexual behaviour, and concerns were raised for family violence occurring the in [paternal] home [sic]. Further concerns were raised regarding [the father] denigrating [the mother] to [the child] and alienating [the child] from [the mother].

1. That report was again "closed at Intake due with [sic] the pattern and history taken into consideration", it being considered that the child's "care arrangements would most be most appropriately addressed in Family Law Court [sic]".
2. A further report was received on 30 September 2021 alleging, yet again, that the child was "at risk in [the father's] care, and that Child Protection had not adequately investigated or addressed these concerns". The response records that "Child Protection investigated these allegations and could not substantiate these concerns". Whilst it was apparently "assessed that supervision was not necessary between [the mother] and [the child] as it was assessed that [the mother] did not pose a risk to [the child]", that was a matter for this Court, which was seized of that issue. Further, it was assessed that the allegations made regarding the father's care of the child "lack[ed] proof that would alter the assessment of Child Protection". Concern was noted regarding the parents' acrimonious relationship and the effect this had on the child. Nevertheless, it was recorded, that, yet again "Child Protection closed the report following investigation and did not substantiate the concerns".
3. It was further recorded that, as at the date of the third response, there was no current child protection involvement regarding the child, and that "[i]nvestigations and enquiries into the concerns that [had] been raised [had] not been substantiated, or not indicated that [the child was] at immediate or significant risk of harm" in the care of either of her parents and that it was assessed that the Court was the most appropriate forum to address issues relating to the best interests of the child.
4. Importantly, in the period covered by the departmental responses, namely, between November 2018-September 2021, there were no protective concerns for the child regarding the father, notwithstanding the mother's many allegations in various forums, including the department and the Magistrates' Court of Victoria and this Court.

1. Exhibit H-13, which was tendered on behalf of the father, is a transcript, on its face generated by the TalkingParents application, of messages exchanged between the mother and him in the period between 16 October 2022 and 7 March 2025, spanning 43 pages. But some examples of the exchanges between them, and the mother's attitude expressed therein generally, will suffice, as they are otherwise too numerous to list. However, they manifest a consistent and persistent blithe disregard on the part of the mother of the fact that, by reason of the March 2021 interim orders, the father had sole parental responsibility for the child, subject only to him keeping her informed of all long term (as opposed to day-to-day) decisions, including decisions relating to her health and education, and that the time to be spent by the mother with the child was to be professionally supervised and was limited to not exceed three hours, twice weekly.
2. In November 2022, in response to the father's advice to the mother that she was not to attend at the child's school, including at orientation or on the child's first day there the following year, the mother responded that she would nevertheless be in attendance and that his "choosing to bring our life into [the child's] school in such a vicious and intentional way is an appalling choice for her".
3. On 14 March 2023, the mother twice advised the father that she would be attending a performance at the child's school, notwithstanding his message to her that: "I remind you that the school has been clear that your attendance at the school while [the child] is present is not permitted", let alone the provisions of the March 2021 interim orders
4. On 24-25 May 2023, there was the following exchange between the parents:

[The mother] on 24/05/2023 at 12:48:51 PM said:

What was wrong with [the child] yesterday?

She said she wasn't sick but you kept her home?

[The mother] on 25/05/2023 at 8:10:02 PM said:

We need to arrange for me to have a school account to I can use the app and keep up to date with what is happening.

I will write to the school and cc in all lawyers.

[The father] viewed this subject on 25/05/2023 at 9:26:16 PM

[The father] on 25/05/2023 at 9:31:51 PM said:

[The father] on 25/05/2023 at 9:32:11 PM said:

no.

[The mother] viewed this subject on 25/05/2023 at 9:34:53 PM

[The mother] on 25/05/2023 at 9:36:53 PM said:

[The father], a day will come when your BS unravels.

You need to think of [the child] first, not your desire to remain in control of a narrative and of me.

1. In the course of an exchange of messages on 20-21 June 2023, in response to father yet again reminding the mother that the school had "formally advised that [she] was not to attend the school during school operating hours" whilst the child was present, the mother responded:

[The mother] on 21/06/2023 at 10:58:22 AM said:

Nope that's not correct [the father].

I can attend the school to support [the child], just like any other parent or friend.

As per court orders, I cannot spend time with her. Which I don't.

I'll see you there.

1. The father responded later that day, as follows:

[The father] on 21/06/2023 at 8:42:12 PM said:

You have been instructed on multiple occasions, not to attend the school premises. The school holds a legal duty of care towards [the child], and your presence in direct violation of court orders poses a significant risk to this obligation. Therefore, I say again that you DO NOT ATTEND THE SCHOOL TOMORROW.

[The mother] on 21/06/2023 at 8:44:04 PM said:

You're wrong.

I know the boundaries and I know my rights. It is not a direct violation of any court order and your desire for it to be, does not make it so.

I am allowed to be there and there will be no time spent. I will be there to support her, as she requested.

1. Of course, that ignores (yet again) the provisions of the March 2021 interim orders and that, in the absence of provision for attendance by the mother, she was not entitled to attend, especially in circumstances where sole parental responsibility was vested in the father.
2. In the same thread, the mother asked the father:

[The mother] on 21/06/2023 at 12:55:12 PM said:

Can you send me whatever you signed with the school to give them permission to take [the child's] photo and video and replicate it with things like this.

I want to know how and where all images of her are being stored and what privacy statement you signed and when.

[The father] viewed this subject on 21/06/2023 at 12:55:20 PM

[The mother] on 21/06/2023 at 12:58:42 PM said:

There is nothing within the enrolment paperwork so I can assume it's a seperate [sic] document.

[The father] viewed this subject on 21/06/2023 at 12:58:50 PM

[The mother] on 21/06/2023 at 1:03:30 PM said:

...

[The mother] on 6/07/2023 at 3:32:03 PM said:

... can you send me the authority for [the child's] image to be used by [the child's school] - it's been requested multiple times now

1. On 3 August 2023, there was the following exchange between the parents:

[The father] viewed this subject on 3/08/2023 at 7:33:05 PM

[The father] on 3/08/2023 at 7:34:26 PM said:

[The child] again thinks you are going to meet her at [DD Restaurant], can you please tell her that you are not going to be there? and that it's not because "dad said no"

[The mother] viewed this subject on 3/08/2023 at 7:35:46 PM

[The mother] on 3/08/2023 at 7:53:18 PM said:

[The father] she is desperate to see me. She needs more time and you are the only one preventing it.

She speaks very clearly about knowing if she asks you for time with me you will say no - I DO NOT LEAD THAT NARRATIVE.

Her knowing you block me from seeing her is documented all way way back to 2021 in the supervision reports as well as the CPS reports.

All she speaks about is wanting me - spending time with me - being with her Mum.

It is so upsetting to hear this - you know exactly who I am, the relationship [the child] and I have and the depraved tactics you have utilised for YEARS to keep her and I separate [sic]. You show her that I am invisible in her life and she won't accept it.

I will never deny her reality and I will never cause harm to your relationship with her.

Her voice is only getting stronger.

1. She ignores the fact that, notwithstanding provision in the March 2021 interim orders for the mother to spend professionally supervised time with the child, she had inexplicably elected not to avail herself of the opportunity to do so for approximately nine months by then.
2. On 17 September 2023, the mother asked the father whether he gave "signed permission for [the school] to distribute [the child's] photo?" and to send her "all the other photos published of [the child] within the app", adding "I know there is more" (sic). The mother's persistent interest in, and request for information, regarding the issue of school photos is, in the absence of explanation, of which there is none, bizarre.
3. It will be recalled that, on 1 November 2023, an interim intervention order was made which, inter alia, restrained the mother "from going to or remaining within 200 metres of [the residence of the father or child] or any other place where [he or she] lives, works or attends school".
4. Between 14-21 November 2023, there was the following exchange between the parents:

[The mother] on 14/11/2023 at 5:45:59 PM said:

1. Will you agree to me attending [the child's] end of year concert to support her and celebrate her prep year?

2. She said she is going to give me her yellow writing book and double lined dotted book for Christmas - please make sure she gets to wrap it up for me which is what she was excited about on the call today - which I know you have recorded so you'll hear it for yourself

[The father] viewed this subject on 15/11/2023 at 10:14:54 AM

[The father] on 21/11/2023 at 11:41:09 AM said:

1.No

2. Please provide an address to post the writing book.

[The mother] viewed this subject on 21/11/2023 at 12:19:18 PM

[The mother] on 21/11/2023 at 12:34:41 PM said:

Let me know when you'll be sending it and I'll provide and [sic] appropriate address

[The mother] on 21/11/2023 at 12:35:04 PM said:

Its [sic] both books and the other art and things she wants to send

1. On 1 February 2024, in response to a request by the mother, two days earlier, to speak with the child at 7.30 am on the first day of the school year, there was the following exchange between the father and her:

[The mother] on 1/02/2024 at 8:18:09 AM said:

Nice of you to check NOW.

She asked you on Tuesday and you said yes.

So I called and called me

Stop undermining her relationship ship with me and mine with her.

[The mother] on 1/02/2024 at 11:40:26 AM said:

I'll call her after school to hear about her first day.

[The father] viewed this subject on 1/02/2024 at 12:00:12 PM

[The mother] on 1/02/2024 at 4:48:16 PM said:

[The father] viewed this subject on 1/02/2024 at 5:51:44 PM

[The father] on 1/02/2024 at 5:51:56 PM said:

[The mother] viewed this subject on 1/02/2024 at 5:56:59 PM

[The mother] on 1/02/2024 at 5:57:39 PM said:

So you have blocked me from her request to speak on her first day of Grade 1.

You continue to control and undermine our rship [sic] which is severely damaging for both her and I

[The mother] on 1/02/2024 at 5:58:19 PM said:

You viewed my message at lunch and SAID NOTHING.

[The mother] on 1/02/2024 at 8:00:27 PM said:

Did you take a photo or her [sic]? Or a photo with a milestone board?

1. In May 2024, there was an exchange of messages between the parties in relation to the child's participation in basketball matches. The mother requested that she be able to attend, which the father declined. In response, she wrote to him on 23 May 2024, asserting: "As per all court orders I am able to attend [the child's] basketball game and observe" (emphasis added). That was manifestly wrong; neither the March 2021 interim orders, nor the intervention order made on 1 November 2023, entitled her to do so.
2. On 11 July 2024, in response to a request by the mother, the father uploaded photos of the child, apparently at school, to the TalkingParents application. In response, the mother responded, inter alia:

[The mother] on 11/07/2024 at 1:54:44 PM said:

The open leg photo isn't appropriate for anyone, especially a school to be taking of a 6yo. The school has proven they don't have safe and effective practices for privacy nor could they provide any systems they have in place to mitigate any issues.

1. The mother could have explained her concerns in evidence, and enabled the testing thereof but, as in every other relevant instance at the resumed trial, she refused or failed to do so. I do not understand her assertion in relation to the school.
2. On 7 August 2024, in response to requests by the mother for a parent/teacher interview, the father responded: "I have informed the school that i [sic] have no objection to you having a parent teacher interview, as long as it is via teams or zoom and you do not attend the School". The mother then requested "a copy of that correspondence", to which the father replied that he had done so verbally.

STATUTORY FRAMEWORK AND THE APPLICATION THEREOF TO THE EVIDENCE

1. As referred to above, this long-running trial having commenced well prior to 6 May 2024, the proceedings are to be determined in accordance with the provisions of Part VII of the Act before the amendments thereto effected by the Family Law Amendment Act 2023 (Cth), which commenced operation on that date.
2. Section 64B(1)(a) of the Act provided (and, for the purposes of these proceedings, provides) that a parenting order is an order made under Pt VII of the Act dealing with a matter mentioned in subsection (2).
3. Section 64B(2) provided (and, relevantly, provides) that a parenting order may deal with, inter alia:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;

[...]

(e) the communication a child is to have with another person or other persons;

[...]

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

1. Section 65D of the Act provided (and, relevantly, provides) that in proceedings for a parenting order, the Court may, subject to, inter alia, s 65DA(1), make such parenting order as it thinks proper.
2. In relation to the allocation of parental responsibility for a child (referred to in s 64B(2)(c)), s 61DA provided (and, relevantly, provides):

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

1. Section 65DAA(1)-(2) required (and, relevantly, requires) that, if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable and, if not, whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.
2. In the present case, by her Minute of Proposed Orders tendered by her (then) counsel on the second day of the trial, on 30 August 2022, and marked W-1, the mother sought, inter alia, an order that the father and she have equal shared parental responsibility for the child. Subsequently, there was no deviation therefrom, including at the resumption of the trial in July 2025, at which the mother refused or failed to prosecute her case. However, both the father and the Independent Children's Lawyer, at the commencement of the trial in August 2022 and upon the resumption thereof, initially, in 2023 and, subsequently, in July 2025, at all times sought an order that the father have sole parental responsibility for the child.
3. Section 60CA of the Act provided (and continues to provide) that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
4. Section 60CC(2) of the Act set out (and, relevantly, sets out) the primary considerations I must consider, being:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The former requirement will often be subject to the latter (cf. Mallory & Mallory [2019] FamCAFC 221; M v M (1998) 166 CLR 69). In the former case, Ainslie-Wallace J said at [77]:

In M v M at 78 the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

... In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. Turning to the former of those two primary considerations, in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 at [26], Brown J held that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant", "important", "of consequence" and "valuable to the child" and is a qualitative adjective, and not a strictly quantitative one.
2. In Goode v Goode (2006) FLC 93-286 at [44], the Full Court said:

44. The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of "substantial and significant time".

(Emphasis in original)

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

1. I am cognisant of the objects of Part VII, and the principles underlying it, specified in s 60B of the Act, and that, in a perfect world, as a general proposition, there would be benefit to the child of having a meaningful relationship with both of her parents, if that were possible. However, unfortunately for the child, she does not live in such a hypothetical perfect world, albeit that, for the reasons herein, I find that the father has been doing, and is doing, the best he reasonably can in the difficult circumstances of this case.
2. In the present case, on the evidence, I am satisfied that the child has a meaningful relationship with the father, with whom she has solely lived for the past 4.5 years, since she was three years of age, and that it is of the benefit to her to continue that relationship with him. However, for the reasons explained herein, on the evidence, I am unable to find that the child has a meaningful relationship with the mother; that it is of benefit to the child to have a relationship with the mother; or that it is possible for the child to have a meaningful relationship with the mother. That is, in part, of the mother's own making, by reason of her refusal or failure to prosecute her case and also to enable the testing thereof by making herself, and the deponents of the other affidavits filed by her, available for cross-examination.
3. Further, any benefit to the child of a meaningful relationship with the mother in the future must, on the evidence, be subordinate to the need to protect her from, in particular, psychological harm from being subjected to, or exposed to, abuse, neglect or family violence by the mother (as defined). In particular, I refer to paragraph (c) of the definition of the term "abuse" in s 4(1) of the Act, which term is defined to include (but is not limited to) "causing the child to suffer serious psychological harm". In this regard, I accept the unchallenged evidence of Dr E and of Ms R, in particular, in her second Family Report and in cross-examination, as well as that of Dr G, in his psychiatric assessment of the mother, albeit in 2019. Further, although the mother had filed, on 8 December 2021, prior to the commencement of the trial, an affidavit of Mr D, which was identified as a document upon which she relied in her Outline of Case document filed on 23 August 2022, as well as a further affidavit by him on 7 November 2024, albeit in support her interlocutory application for reinstatement of the proceedings, as I have recorded, she refused or failed to make him available for cross-examination, notwithstanding his availability, such that his evidence could not be tested. Accordingly, I give his evidence no weight. By reason of the evidence of Dr G, I hold grave concerns regarding the mother's psychiatric / psychological health, which concerns were not in any way ameliorated by her conduct before me. By reason of that evidence, together with that of Dr E and Ms R, I hold grave concerns regarding the need to protect the child from psychological harm posed by the mother.
4. Section 60CC(3) of the Act set out (and, relevantly, sets out) the additional considerations to the primary considerations. They are relevantly, as follows. Again, I am cognisant that, in considering these additional considerations, I do so on the basis of the evidence of the husband and that adduced by the Independent Children's Lawyer, which was not challenged by the mother, and that I have given minimal or no weight to her evidence which, other than briefly, over a few hours on 29-30 August 2022, was not able to be tested. In any event, the only affidavits of the mother herself, filed for the purposes of the trial, were those filed on 4 July 2022 and 17 April 2025, which were both drawn by her, as a litigant in person. Even though certain of the rules of evidence do not apply thereto, by reason of s 69ZT of the Act (as it then was), much of the contents thereof is little more than comment, argumentative and conclusionary in nature and, as drawn, would have been (and is) of little assistance to the Court.
5. As to sub-paragraph (a), namely, any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children's views, Ms R, in most recent report, reports that (at paragraph 43)-

... she wants to live one week about between her parents ... because she could spend time with each of her parents. When asked what this would be like she said she did not know.

1. Further, it will be recalled that the child expressed confusion to Ms R regarding the mother's refusal to disclose to her where she lives (at paragraph 44). That may, at least in part, explain why, after more than four years, she did not know what it would be like to live with her mother. I also refer to and rely upon Ms R's evidence (at paragraph 55) that, of significance, was the child's demeanour throughout her observations of the child with each of her parents, namely that "she seemed to go from a carefree chatty child to a quieter, and more withdrawn child" when observed throughout, with her father and then with her mother. Indeed, Ms R reports that the child loves her mother and wants to see her, but that she is beginning to express some confusion in the situation, especially in relation to not knowing where the mother lives. Ms R opines that, whilst it is important to listen to the child's view, she is still young, has little contextual experience to offer commentary on her living arrangements and that the need for her safety and developmentally appropriate care should likely be prioritised over any views she may express. I agree and, all the more so, in circumstances where Ms R's evidence was unchallenged. In all the circumstances of this case, including but certainly not limited to the child's young age, I give little weight to the child's wishes.
2. As to sub-paragraph (b), namely, the nature of the relationship of the child with each of her parents, on the evidence referred to above, I accept that the child has a warm and loving and, in all the circumstances, appropriate relationship with the father. However, whilst the child was observed by Ms R to enjoy a superficially good relationship with the mother, in that (inter alia), she smiled when she saw her, albeit remaining seated, and accepted a hug from her, and that there was nothing in the observation that would have caused Ms R to intervene, I also note Ms R's opinion, referred to in the preceding paragraph, and that the child's uninhibited presentation during the interview with her, and when observed with the father, was "noticeably different" when with the mother (at paragraph 55). In particular, when observed with the mother, the child spoke with a quieter voice; she gave a less fulsome or verbose commentary; she did not answer some of the mother's questions that were answered freely when similarly asked by the interviewer; there were gaps in conversation flow; and, as time progressed during the observation, the two displayed a "lower energy level" than at the commencement thereof. Further, other than video communication, for 15 minutes each week, the child has been denied the ability to maintain any more qualitative relationship with the mother since at least late 2022 / early 2023, by reason of the mother's refusal or failure to avail herself (and the child) of the opportunity to spend time together, albeit professionally supervised. Unfortunately, by this, together with her conduct at the resumption of the trial in July 2025, the mother has been the author of her own and, more importantly, possibly the child's, misfortune.
3. As to sub-paragraph (c), namely, the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with them, I find that the father has taken such opportunity. Indeed, by reason of the child living with him and spending negligible / no time with the mother, he has had to do so almost singlehandedly. Conversely, the mother, inexplicably or insufficiently so, has failed to avail herself of the opportunity to spend time, albeit professionally supervised, with the child. This is opined by Ms R to be a "concerning feature", as it is "very likely difficult" for the child that her mother has not taken the opportunity to spend in person time with her (at paragraph 63). Whilst Ms R noted, in this regard, that "the lower cost community operated supervision services can be challenging in nature, and more limited" (at paragraph 63), I do not accept that the mother's decision to spend no time with the child was, in any way, a child-focussed decision, rather than that which she made - namely, to spend no professionally supervised time with her instead.
4. As to sub-paragraph (ca), namely, the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child, there was little by way of evidence or submissions in this regard. This is unsurprising, given the understandably primary focus of this case. I generally find that the child has been maintained effectively solely by the father for the past 4.5 years, since the making of the March 2021 interim orders, but am cognisant that, in the circumstances, the mother may have had little ability to do so. His updated Financial Statement, filed on 1 July 2025, discloses that the mother is assessed to pay him, and pays, child support in the total sum of $9.95 per week, whilst he lists expenses for the child totalling $610 per week.
5. As to sub-paragraph (d), namely, the likely effect of any changes in the child's circumstances, including the likely effect on her of any separation from either of their parents - on the evidence, including, in particular, that of Ms R, I have no hesitation whatsoever in finding that, were the child to be separated from her father, who has been her primary (and, indeed, sole) carer since March 2021 and placed in the primary care of her mother, such change would have an extremely deleterious effect on her psychological (and possibly day-to-day physical) wellbeing. I also unreservedly find that, on the evidence, were the child to spend equal or substantial and significant time with the mother, even if supervised, such change would similarly have a deleterious effect upon their well-being in the foreseeable future. The gravamen of this case, in the result, is whether the mother should continue to be able to spend professionally supervised time with the child and to communicate with her weekly by video-conference or whether, as the father and the Independent Children's Lawyer submit, she should not spend any time, and have no communication, with the child, other than by way of correspondence and gifts on special occasions each year. An order that the mother spend no time with the child will change nothing; the mother has not availed herself of the ability to do so, albeit professionally supervised, for some 2.5 years. I accept that a cessation of the mother's video communication with the child will likely distress her, but I must weigh that against the unchallenged expert opinion and ultimate recommendation of Ms R that, on balance, it should be ceased.
6. As to sub-paragraph (e), namely, any practical difficulty and expense of the child spending time with and communicating with either parent and whether any such difficulty or expense will substantially affect the child's rights to maintain personal relations and direct contact with both parents on a regular basis, in the circumstances of this case, such consideration is not relevant.
7. As to sub-paragraph (f), namely, the capacity of (in particular) each of the parents to provide for the needs of the child, including her emotional and intellectual needs, on the evidence, I have no hesitation in finding that the father has, and has manifested, such capacity. In contrast, however, given the totality of the evidence and, in particular, the expert evidence of Dr G, Dr E and Ms R, I hold concerns regarding the capacity of the mother to provide, in particular, for the emotional needs of the child. I refer, inter alia, to the mother's apparent inability to put the child's needs ahead of her own beliefs or preferences, in her failure to spend any time, albeit professionally supervised, with the child over the 2.5 years preceding the conclusion of the trial. It will be recalled that Ms R reported that, whilst the father presented with a "good degree of child focus and insight in the everyday and longer term needs" of the child, she reported, in contrast, that the mother only "presented with a degree of competency and organisation" and that her "overall presentation gave rise to concerns about her capacity to prioritise [the child's] needs". Further, Ms R reported that the mother "did not seem to be able to demonstrate reflective parental functioning" in certain regards. Ms R also opined that the information available to her, together with the mother's presentation at assessment, gives rise to questions about her overall capacity to provide child focused and attuned care.
8. As to sub-paragraph (g), the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of their parents, and any other relevant characteristics of the child, there are no issues in this regard, and certainly none that are not encompassed within any of the other additional considerations.
9. As to sub-paragraph (h), it is inapplicable in this case; the child is not an Aboriginal or Torres Strait Islander child.
10. As to sub-paragraph (i), namely, the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents, I refer to and repeat my findings in relation to others of the additional considerations which overlap this consideration. Certainly since the child was placed in the care of the father in March 2021, with whom she has continued to live and thrive over the past 4.5 years, on the evidence, including importantly that of Ms R, I find that the father's attitude to the child, and to the responsibilities of parenthood, demonstrated by him, has been exemplary. Insofar as the mother is concerned, I accept that, in her own way, she must love the child and wish the best for her and that she subjectively believes that her attitude to her, and to the responsibilities of parenthood, has been appropriate. However, I find that subjective belief, viewed objectively, not to be correct. For example, her failure to spend time with the child, albeit professionally supervised, to which she took objection, reflects poorly upon her attitude to the child, and to the responsibilities of parenthood. Ms R opined that this does not augur well for the future.
11. As to sub-paragraph (j), namely, any family violence involving the child or a member of her family, whilst the Court takes allegations of family violence seriously, as noted above, unless and until proven, they remain just that - allegations. Rather, he or she who asserts must prove; the mother, by her refusal or failure to prosecute her case, to enable the testing of her evidence (other than on 29-30 August 2022), and to test the evidence of the father, has failed to prove her assertions against the father. Further, no concerns, certainly none of any note, have been expressed by any of the experts or the Department in respect of any family violence on the part of the father.
12. As to sub-paragraph (k), namely, any inferences that can be drawn from a family violence order that applies or has applied to the children or a member of the children's family - family violence orders have been made since separation, at various times, against each of the parents for the protection of the other and/or the child. I draw no inferences for or against either of the parents in this regard, save for the more recent (albeit interim) extant intervention order made on 1 November 2023 against the mother, restraining her from, inter alia, going to or remaining within 200 metres of the place of residence of the father and the child, or any other place whether they live or, in the case of the father, work, and, in the case of the child, attend school. That is, in particular, corroborative of the father's evidence regarding the mother's attendances at the child's school and basketball matches, which were not authorised by the March 2021 interim orders and which, as the person in whom parental responsibility was then solely vested, he was entitled to refuse.
13. As to sub-paragraph (l), namely, whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children - the parents and the children have been mired in litigation since mid-2019, initially in the Federal Circuit Court of Australia and, thereafter, in this Court. I am satisfied, on the evidence and for the reasons herein, that it would be preferable to make such an order and the orders I propose to make will, I consider, most likely achieve that outcome.
14. As to sub-paragraph (m), there are no other relevant facts or circumstances in this case beyond those referred to above.

1. In relation to the allocation of parental responsibility for the child (being referred to in s 64B(2)(c)), I am cognisant that, as s 61DA(1) provided (and, relevantly, provides), the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child but that, as s 61DA(4) provided (and, relevantly, provides), that presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
2. In the present case, on the evidence of the father and Ms R, I am comfortably satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibly for her, such as to rebut the presumption. She has thrived since sole parental responsibility was conferred upon the father by the March 2021 interim orders. It is manifest, on the evidence, that the parents are unable to agree upon much to do with the child. In Ms R's opinion, the mother's behaviour would be very likely to take a serious toll, and to have a long-term effect, on the father, and although he has, thus far, been able to protect the child, she considers that it will become more difficult to do so, with the passage of time. Further, she considers it to be "absolutely important" to protect the father in his role. In the circumstances, an order will be made that the father have sole parental responsibility for the child, to the exclusion of the mother.
3. The father seeks an order, supported by the Independent Children's Lawyer, that the child continue to live with him, as she has done since March 2021, whereas the only orders sought by the mother, in her minute of proposed orders (Exhibit W-1) tendered at the commencement of the trial in August 2022, are that the child either immediately commences to live with her, or that she increasingly progresses to do so, over a period of 16 weeks. Not only is that entirely unrealistic on the evidence, but the mother refused or failed to prosecute her case in this, or any, regard at the resumption of the trial, and until the conclusion thereof, in July 2025. I refer to and rely upon, and need not repeat in any detail, the evidence of Ms R in relation to the child's progress in the sole care of the father since March 2025. After only spending professionally supervised time with the mother between early 2021 and late 2022 / early 2023 and, thereafter, no time, it is nigh inconceivable, on the evidence, that there could be a change in the child's living arrangements and there will not be. An order will be made that the child live with the father.
4. In circumstances where an order for equal shared parental responsibility will not be made, it is not necessary to consider the provisions of ss 65DAA(1) and 65DAA(2) which otherwise required (and, relevantly, require) that, the Court consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable and, if not, whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable. See, for example, Doherty & Doherty [2016] FamCAFC 182 and Pruchnik & Pruchnik (No.2) [2018] FamCAFC 128; (2018) 58 FamLR 458. Rather, my discretion is at large to make such order as I think proper, regarding the best interests of the child as the paramount consideration.
5. Again, on the evidence of the father, Dr G, Dr E and, in particular, Ms R, which is unchallenged by the mother and supported by the Independent Children's Lawyer, and without having had the benefit of the testing of the evidence of any of the mother's witnesses and, most importantly, herself, it is inconceivable that I could or would order that the child spend time with her, other than subject to professional supervision.
6. In Moose & Moose (2008) FLC 93-375 at [119], Boland J said (May and O'Reilly JJ concurring):

119. The undesirability of, and the practical difficulties associated with long term supervision in a children's contact centre are referred to in the Guideline for Family Law Courts and Children's Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General's Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227, May J, having found that the evidence in the case "objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...", then referred to the difficulty associated with long term supervised contact and said "the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children's best interests". Her Honour then explained "[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored". (See also W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892; (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).

1. May J added at [10] that, "where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders".
2. In the present case, the mother, by her refusal or failure to participate, has not proffered any orders she might seek if the child were not to live with her, including, for example, albeit undoubtedly far removed from her preferred outcome, the continuation of professionally supervised time with the child. Indeed, I comfortably infer, from her refusal or failure to avail herself of such time over the 2.5 years preceding the resumption of the trial, the any such order would be otiose. Accordingly, no orders will be made for the mother to spend time with the child, certainly not unsupervised, but nor professionally supervised.
3. The question remains and, ultimately, the gravamen of this case is, whether any order for communication between the mother and the child hereafter is in the child's best interests.
4. In her most recent Family Report, in May 2025, Ms R opined that it is an "unfortunate situation" that the relationship the child has shared with her mother, implicitly since they last spent time together in late 2022 / early 2023, has been one of video calls, that have been reported, by both parents, albeit for divergent reasons, to be fraught at times. Ms R referred to the fact that, as advised by the mother, her friend (and former litigation guardian), Ms S, has observed such communications. Ms R opined that such monitored calls are "likely a difficult situation" for the child, now that she is older and more aware of the nature of her (implicitly, limited) relationship with her mother. Similarly, but seemingly more generally, Ms R opined that FaceTime communication is likely difficult for the child to navigate.
5. I take into account Ms R's opinion in May 2025, albeit prior to cross-examination, that the father's proposal, namely, that there be no time spent, and no communication, between the mother and the child, which would result in a severing of any relationship and connection between them, would be difficult for the child, and impactful on her and on her sense of identity and development, especially as she develops into adolescence in the future. However, quite properly, Ms R acknowledges that, whether this is warranted, by reason of concerns regarding the mother, is an issue for determination for the Court. Unfortunately, by reason of the mother's refusal or failure both to prosecute her case, and to enable the testing thereof, those concerns have not, in any way, abated; indeed, they have been fortified. Whilst Ms R then opined that this may not be a matter where, relevantly, no communication between the mother and the child would be considered, as she had previously suggested, she conceded that it was very difficult, at that stage, to assess how an ongoing relationship between them could be maintained. She adverted to the possibility that it might lead to further litigation, allegations of risk and disruption for the child. She opined that the mother's behaviours raise concerns about how a relationship between the child and her can move forward and the risks associated therewith, including "entwinement" with any further litigation and being called upon to respond to allegations of risk, implicitly made by or on behalf of the mother. Ms R also referred to the impact on the father, as the child's primary carer, of further litigation, which will detract from parental resources, in terms of finances, time and focus, and the consequent possible adverse impact on the child, including her sense of identity and her development. However, importantly, and quite properly, Ms R acknowledged that, in deciding whether the benefit of retaining a connection and relationship between the mother and the child is in the child's best interests or is outweighed by any risks associated therewith, a testing of the evidence might be required. The mother precluded the testing of her evidence, and the father's evidence was untested by or on her behalf. Insofar as the father's evidence was tested in cross-examination by the counsel for the Independent Children's Lawyer, it was merely confirmatory thereof.
6. I have referred above to Ms R's subsequent evidence, in cross-examination at the resumption of the trial in July 2025. It will be recalled that, in the context of the mother's conduct in Court over the preceding day, Ms R agreed that the mother holds "strong fixed views" about the father, has conducted an "unrelenting campaign" of allegations of family violence by him and his family, and holds an "unrelenting belief" that the child has been subjected thereto in his care, which allegations and beliefs she considered, and I find, to be false. Further, Ms R agreed that the mother's course of conduct, namely, complaints and litigation against the father, may continue, in her quest (which I find to be, at best, misguided) to obtain what she considers "just". On the totality of the evidence, I find that to be so.
7. Ms R also agreed in cross-examination, and I accept, that the mother's behaviour would very likely take a serious toll, and have a long-term effect, on the father. As the child's primary carer, that is a matter of concern, as it may, in turn, impact upon the child.
8. I also take into account, and place weight upon, Ms R's opinion proffered in cross-examination that, in the circumstances, school is a "safe space" for the child, and that it is in her best interests for it to be protected by restricting the mother's access to information from or regarding the child's school.
9. I take into account, and place great weight upon, Ms R's evidence in cross-examination that the mother lacks insight in her FaceTime communication with the child and the risk that it destabilises (or may hereafter destabilise) the child's emotional and psychological stability, such that consideration should be given by the Court to the termination thereof.
10. In the circumstances, in her evidence in cross-examination, Ms R resiled considerably from her primary recommendation in her most recent Family Report, in favour of her secondary recommendation therein, namely, that no orders should be made for time to be spent, or any communication, between the mother and the child, other than gifts and cards on special occasions. I accept her opinion that severance of the relationship between the mother and the child, save for this limited exception, may be, and I find it is, as Ms R agreed, "the least bad option" and a "clearer pathway forward" in the best interests of the child and, secondarily but very much related thereto, in the best interests of the father as her primary carer.
11. Insofar as Ms R opined in cross-examination that any unacceptable risk posed to the child by the mother, in the circumstances set out and considered above, outweighs the benefits to her of a meaningful relationship with her (I interpolate, if that even be possible), in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092, the Full Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ), considered the issue of "unacceptable risk" and the distinction between fact finding and risk assessment.
12. The Full Court said:

1. Long ago, in parenting proceedings characterised by one parent's allegation that the other had sexually abused their child, the High Court of Australia ("the High Court") emphasised the distinction between two very different things: on the one hand, proving alleged sexual abuse according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future: (M v M (1988) 166 CLR 69).

...

4. In relation to the second question pertaining to risk, the High Court said (at 77-78):

... [T]he court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. ... [T]he test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

...

7. M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the Family Law Act 1975 (Cth) ("the Act") must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (No 1) (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.

1. At [53], the Full Court said that "while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities". Here, I have accepted the unchallenged evidence adduced by the father and the Independent Children's Lawyer, in particular, Ms R's expert opinion regarding, inter alia, the mother's lack of insight, her strong fixed views, her unrelenting beliefs and her unrelenting campaign against the father by reason thereof; my conjecture about the future must be, and is, based on those facts. To that must be added the evidence of Dr G and Dr E regarding the mother's psychiatric/psychological health. Although dated, there is no evidence to the contrary on which I could rely, given her refusal or failure to call Mr D and make him available for cross-examination.
2. At [56], the Full Court continued:

56. It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about "unacceptable risk" were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A, In Marriage of [1998] FamCA 25; (1998) 146 FLR 188 at [3.14]- [3.15] and [3.24]).

1. At [85], the Full Court said that the "assessment of risk is an evidence-based conclusion and is not discretionary" and that:

86. We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of "unacceptable risk" cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.

(Emphasis in original)

1. To adopt, for illustrative purposes, the mathematical hypothetical propounded by the Full Court in Isles & Nelissen, even if there were only a 33.33 per cent chance of the child being harmed by the mother's conduct, as I have found it to be, I consider that no sensible person would take the risk of putting the child in that situation because, even though the prospect of harm would only be possible, as opposed to probable, the risk is too high to tolerate and is, therefore, unacceptable. That said, in the present case, although strictly unnecessary to find, on the evidence, the risk of harm to the child is likely to be probable, as opposed to only possible.
2. In the circumstances, orders will be made to the effect sought by the father and the Independent Children's Lawyer, namely, that the father have sole parental responsibility for the child, to the exclusion of the mother; that the child live with the father; that the child spend no time, and have no communication, with the mother, save that the mother be at liberty to provide a gift and card for the child on her birthday and at Christmas and Easter each year.
3. The father and Independent Children's Lawyer propose an order that he inform the mother in relation to all serious issues concerning the child's health, and that he notify her as soon as practicable of any medical emergency or serious illness or health event. In the circumstances, such an order will be made.
4. The father, with the support of the Independent Children's Lawyer, seeks orders in relation to overseas travel with the child and passports for the child. In the circumstances, including that the father will have sole parental responsibility for the child and she will not spend any time or have any communication with the mother, such an order is appropriate and will be made.
5. The father and the Independent Children's Lawyer seek an order pursuant to s 68B of the Act for the protection of the child, upon the expiration of the interim intervention order made on 1 November 2023, the final disposition of which awaits the outcome of these proceedings, restraining the mother from entering into, or remaining at, the child's place of residence, school and extra-curricular activities; contacting or communicating with the child by any means; and causing or permitting any person to do any act or thing on her behalf that she is restrained from doing. In the circumstances, including the mother's refusal or failure to defend the proceedings, and taking into account that such an order will, I consider, reduce the likelihood of the institution of further proceedings in relation to the child, including further intervention order proceedings in the Magistrates' Court of Victoria, I consider it appropriate to make such an order.
6. Finally, the father, supported by the Independent Children's Lawyer, seeks leave to provide these reasons for judgment, and the orders made pursuant thereto, to various third parties, in relation to the child and himself. In the circumstances of the case, and taking into account that he will (continue to) have sole parental responsibility for the child and that the child will (continue to) live with him, it is appropriate that such orders be made.
7. Given the parenting orders to be made and, in particular, that they will bring the child's FaceTime communication with the mother to an end, a further order will be made requiring the father to bring the child to Court Children's Service on a date and at a time to be advised to him by the Court, for the purpose of a Court Child Expert explaining the Orders to be made to her.

1. By her (further amended) Initiating Application, filed on 3 January 2022, in anticipation of the matter being listed for trial, the mother sought an entirely unparticularised order that "there be a just and equitable property settlement as the court deems fit", save that she sought an order that "a new motor vechile [sic] purchased [sic] equivalent to that of which was taken from the applicant and the registration and insurance to be paid and the car in the applicants [sic] name".
2. The father's case, at all material times, has been, and is, that, in the circumstances of this case, no order for an alteration of interests should be made and that it would not be just and equitable to do so.
3. The mother's application was not substantially elucidated by her Outline of Case, filed on 23 August 2022, save that it specified an overall but, again, unparticularised division of property sought by her, in proportions of 25% to her and 75% to the father.
4. On the second day of the trial, a document titled "MOTHER'S PROPOSED DIVISION OF PROPERTY (subject to the cross examination)" was tendered by (then) Counsel for the mother and marked Exhibit W-2. The property listed therein, and the values ascribed thereto, (there being no liabilities listed for either party) may have been said to be "subject to cross-examination" which, in the result, did not occur; however, they were also subject to being proven in evidence in chief. In that document, it was asserted that the mother had property totalling $12,000 and that the father had property totalling $161,841, in respect of which she sought a payment to her of $31,460.25, to effect the overall division sought by her. However, neither the husband's Financial Statement filed on 6 June 2022, nor his more recent Financial Statement filed on 1 July 2025, prior to the resumption of the trial, disclose property of that value; further, they disclose liabilities disregarded by the mother.
5. In his Financial Statement filed on 6 June 2022, the father deposed to non-superannuation property with an asserted value of $78,046 and liabilities asserted to total $35,610. In his Financial Statement filed on 1 July 2025, he deposed to non-superannuation property with an asserted value of $12,601 and liabilities asserted to total $43,479.
6. In the mother's Outline of Case, filed on 23 August 2022, which was not updated for the resumed trial in either September 2023 or July 2025, she purported to rely upon three affidavits by one My B, apparently a chartered accountant. However, he was not a jointly appointed single expert and leave was never sought by, let alone granted to, the mother to rely upon his evidence, as an adversarial expert, and I have had no regard whatsoever to his evidence.
7. As with the parenting proceedings, given the mother's refusal or failure to prosecute her case for an alteration of interests in property and to enable a testing thereof, as well as to test the husband's case that no order therefor should be made, her case must fail. In any event, it would appear that, from such identification as is possible, on the papers, according to ordinary common law and equitable principles, of the existing legal and equitable interests of the parties in property (Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108), prima facie, there is no net property available for division between the parties, taking into account the liabilities to which the father deposes.
8. In the circumstances, the mother's application for property settlement will be dismissed.

1. By the mother's Initiating Application filed on 7 May 2019, she sought final and interim orders for spousal maintenance.
2. On 28 October 2019, an order was made in the then Federal Circuit Court of Australia that, until further order, the father pay to the mother the sum of $350 per week by way of interim spousal maintenance (Order 12) ("interim spousal maintenance order"). That order was suspended by Order 2 of the March 2021 interim orders.
3. The most recent incarnation of the mother's Initiating Application, filed on 3 January 2022, does not seek any orders for spousal maintenance, other than possibly in relation to the motor vehicle she seeks that the father purchase for her, for which she seeks that he pay the registration and insurance. It is entirely unclear whether she seeks that, only upon purchase, he do so, or whether she seeks that such payments be ongoing and, if so, for how long. For the reasons above, her application for the purchase of a motor vehicle will be dismissed. Whilst her most recent Financial Statement, filed on 4 July 2022, discloses that she then owned a motor vehicle manufactured in 2014, the value of which she asserted to be $5,000, there is no current evidence in relation thereto.
4. Neither Exhibit W-1 tendered on behalf of the mother on 30 August 2022, nor Exhibit W-2 tendered on her behalf that day, seeks any final order for spousal maintenance.
5. The father, by his further amended Response to Initiating Application filed on 1 July 2025 seeks the discharge of the interim spousal maintenance order. That was also his application at the commencement of the trial in August 2022.
6. His updated Financial Statement filed on 1 July 2025 discloses total weekly income in the sum of $2,257 and weekly expenses totalling $2,224, including rent for accommodation for the child and him in the sum of $626 per week and expenses for the child totalling $610 per week, in respect of which the mother is assessed to pay, and apparently pays, the sum of $9.95 per week by way of child support.
7. In any event, by reason of the mother's failure to prosecute any claim for spousal maintenance, on a final basis, the suspended interim spousal maintenance ordered must be discharged.

1. By Application in a Case filed on 8 July 2020, Ms AA, of Q Legal, the mother's former lawyer, sought leave to intervene in the proceedings and orders to the effect that, from any alteration of property in favour of the mother, she first be paid the sum of $35,661.18, together with interest thereon.
2. On 20 July 2020, orders were made in the then Federal Circuit Court of Australia, inter alia, granting Ms AA leave to intervene and excusing her from further attendance, save on the first day of trial.
3. On 29 August 2022, orders were made, inter alia, excusing the intervener from attendance at trial.
4. By reason of the dismissal of the mother's application for property settlement, the intervener's application must also be dismissed, together with all interlocutory orders in relation thereto.

1. By paragraphs 15 and 16 of his further amended Response to Initiating Application filed 1 July 2025, the father seeks a harmful proceedings order in the following terms:
   1. Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) ("the Act") the Applicant, [Ms Cassell] is prohibited from instituting proceedings under the Act against the Respondent, [Mr Kolar], without the leave of the Court under s 102QAG of the Act.
   2. Pursuant to s 102QAC(7) of the Act, in the event that [Ms Cassell] makes an application under s 102QAE of the Act for leave to institute proceedings against [Mr Kolar], [Mr Kolar] is not to be notified that:

(a) an application has been made; and/or

(b) if the application is dismissed - that the application has been dismissed.

1. By paragraphs 15 and 16 of the minute of orders annexed to his Outline of Case filed on 9 July 2025, he again seeks such an order, in identical terms to that sought in his amended Response.
2. Such an order is supported by the Independent Children's Lawyer.
3. Section 102QAC of the Act provides:

(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:

(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or

(b) in the case of child‑related proceedings (within the meaning of Part VII) - the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:

(a) psychological harm or oppression;

(b) major mental distress;

(c) a detrimental effect on the other party's capacity to care for a child;

(d) financial harm.

(3) In determining whether to make an order under subsection (1), the court may have regard to:

(a) the history of the proceedings under this Act between the first party and the other party; and

(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and

(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).

(4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.

(5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(6) An order made under subsection (1) is a final order.

Order about notifying other party in relation to application for leave etc.

(7) If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:

(a) that the application has been made;

(b) if the application is dismissed - that the application has been dismissed.

(8) The court must have regard to the wishes of the other party in making an order under subsection (7).

1. Section 102QAD of the Act provides:

(1) If a person is subject to a harmful proceedings order prohibiting the person from instituting proceedings under this Act in a court having jurisdiction under this Act:

(a) the person must not institute proceedings in the court without the leave of the court under section 102QAG; and

(b) another person must not, acting in concert with the person, institute proceedings in the court without the leave of the court under section 102QAG.

(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.

(3) Without limiting subsection (2), the court may make:

(a) an order declaring proceedings are proceedings to which subsection (2) applies; and

(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

(4) The court may make an order under subsection (3) on its own initiative or on the application of a person a party to the proceedings.

1. Section 102QAE of the Act provides:

(1) This section applies to a person (the applicant) who is:

(a) subject to a harmful proceedings order prohibiting the person from instituting further proceedings under this Act in a court having jurisdiction under this Act; or

(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

Note: The court may be required to give notice that the application has been made (see subsection 102QAC(7)).

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under section 102QAG. If the order is made, the applicant must serve the copy in accordance with the order.

1. Section 102QAF of the Act provides:

(1) The court may make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QAE(3).

Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).

(2) The court must make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.

Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).

(3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).

(4) The court may make an order under this section in Chambers.

1. Section 102QAG of the Act provides:

(1) The court may make an order granting the application for leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success.

(2) An order under subsection (1) may be made subject to the conditions the court considers appropriate.

1. Sections 102QAC-102QAG of the Act are contained in, and comprise, Division 1B of Part XIB of the Act, and were introduced by Schedule 5, item 6 of the Family Law Amendment Act 2023 (Cth), which commenced operation on 6 May 2024.
2. The Explanatory Memorandum to that amending Act states:

36. The Bill introduces 'harmful proceedings orders' to prevent vexatious litigants from filing and serving new applications without first obtaining leave from the court. The new orders will allow the court to prevent harm to the intended respondent, assisting to protect victim survivors of family violence from systems abuse. ...

1. The Explanatory Memorandum also relevantly states:

52. ... The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. ...

...

54. The new orders constitute a limitation on the right to a fair hearing as they may limit an applicant's opportunity to present their case if they are subject to such an order. However, this limitation is reasonable and proportionate to the legitimate aim of preventing harm to the respondent through continuous litigation. ...

55. The Bill's limitations on the right to a fair hearing are therefore necessary, reasonable and proportionate to the legitimate aim of protecting vulnerable parties and sensitive information.

1. The Explanatory Memorandum further relevantly states:

319. ... The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.

...

322. ... The intention of this power is to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications.

...

324. New subsection 102QAC(2) provides examples of what may constitute 'harm'. Harm may include psychological harm or oppression, major mental distress or a detrimental effect on the other party's capacity to care for a child. This list is intended to provide examples of when repetitive and litigious filing by an applicant has or may result in a significant negative impact on the respondent's wellbeing to the point where the making of a harmful proceedings order is appropriate for the protection of the respondent and/or any children involved in the proceedings.

325. The list of examples under subsection 102QAC(2) is non-exhaustive. A non-exhaustive list has been adopted as there are various types of harm that a respondent and/or their children who are the subject of proceedings may experience as a result of a litigant utilising the family court system as a mechanism to instigate further family violence. For this reason, a prescriptive definition of harm has not been included to avoid the risk of narrowing the scope of what constitutes harm.

326. In effect, what constitutes harm will depend on the individual circumstances of each case as determined or assessed by the court, having regard to any or all matters including those in new subsection 102QAC(3).

...

328. Subsection 102QAC(3) is not intended to be an exhaustive list of the matters the court may consider in determining whether to make a harmful proceedings order. The court may have regard to any other factor relevant to the matter, including where there have been proceedings in other courts that relate to the matter, interactions with agencies, for example in relation to child welfare or child support, and any other relevant factor.

1. Section 102QAC(1) provides that a "court exercising jurisdiction in proceedings under this Act" may make a harmful proceedings order. The term "proceedings" is relevantly defined in s 4(1) of the Act to mean "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding".
2. Item 14 of Schedule 5 to the Family Law Amendment Act 2023 provides:

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences.

1. In the present case, these proceedings were instituted before, and not finally determined by, 6 May 2024 and a harmful proceedings order may be made.
2. However, s 25(1) of the Federal Circuit and Family Court of Australia 2021 (Cth) ("FCFCOA Act") provides that:

(1) The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:

(a) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51 - as set out in paragraphs 132(1)(a), (b), (c) and (d); or

(b) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149 - as set out in paragraphs 132(1)(a), (b), (c) and (d); or

(c) as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

(1) A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).

Note: For the institution of proceedings other than family law or child support proceedings, see section 62.

(2) If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:

(a) unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and

(b) the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.

1. Accordingly, the order sought in the father's further amended Response to Initiating Application filed 1 July 2025, if it constitutes a separate proceeding, is deemed to have been transferred to the Federal Circuit and Family Court of Australia (Division 2).
2. In Gilford & Cavaco [2024] FedCFamC1A 55; (2024) FLC 94-183 (Harper and Brasch JJ, Riethmuller J dissenting), the applicant had filed an Initiating Application for final parenting and property orders in the Federal Circuit and Family Court of Australia (Division 2). Final property orders were subsequently made by consent, but the parenting proceedings continued and were transferred to the Federal Circuit and Family Court of Australia (Division 1). Thereafter, the applicant filed a further amended Initiating Application seeking leave pursuant to s 44(6) of the Act to apply for a maintenance order under s 90SE, which was dismissed by the primary judge.
3. At [36]-[43], Harper and Brasch JJ relevantly said:

36. If the appellant's application for maintenance as formulated was a nullity, it must follow that s 50 would not be engaged because there was no institution of proceedings at all. But if s 50 was engaged the primary judge was deprived of jurisdiction in any event. The Further Initiating Application filed 28 October 2022 sought to introduce a separate proceeding, being an application for spouse maintenance (see for example "proceeding" as defined in s 7 of the FCFCOA Act; and see also Ferretto and Ferretto [1986] FamCA 58; (1986) FLC 91-770; Branchflower and Branchflower [1979] FamCA 76; (1980) FLC 90-857). In Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 Murphy J said at 19:

... However, the definition of matrimonial cause treats the various proceedings, whether for principal relief (dissolution or nullity or declaration of validity of dissolution or annulment) or not (for example, proceedings with respect to maintenance, property, custody, guardianship or maintenance of or access to a child of the marriage), as separate proceedings although they are related in some cases ...

(Emphasis in original)

37. More recently, in Clayton v Bant (2020) 272 CLR 1 ("Clayton") the majority of the Hight Court (Keiffel CJ, Bell and Gageler JJ) at [23]-[24] made clear that property adjustment proceedings and spouse maintenance proceedings are claims to separate rights and based on the exercise of different statutory discretions, irrespective of the fact they both relate to a "matter" or justiciable controversy. They concluded at [25]:

25. Thus, the right in issue in each of the property settlement proceedings and the spousal maintenance proceedings is a right that is created by a statutory provision which confers a discretionary power on the Family Court to make an order of the kind that is sought. The justiciable controversy as to whether such an order should be made constitutes the matter defining the jurisdiction of the Family Court.

(Footnote omitted)

38. Clayton was also decided before the amendments to the Act by the FCFCOA Act removed the conferral of jurisdiction on Division 1 by s 39 of the Act. Since 1 September 2021, jurisdiction is primarily conferred on Division 1 by transfers of "family law or child support proceedings" from the Federal Circuit and Family Court of Australia (Division 2) ("Division 2") (Nevins & Urwin [2022] FedCFamC1A 57; (2022) FLC 94-084 ("Nevins")).

39. The expression "family law or child support proceedings" in s 50 takes its content from s 132 of the FCFCOA Act. This section gives original jurisdiction to Division 2 in a range of federal "matters" arising under various statutes including the Act, the Marriage Act 1961 (Cth), the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") and the Child Support (Registration and Collection) Act 1988 (Cth). But s 50 does not refer to "matters". It refers to the institution of "proceedings". As the High Court has made clear many times, though a federal "matter" comprises a single justiciable controversy, proceedings brought in relation to such matter are not necessarily co-extensive with it. The point is that s 50 is clearly by its terms confined to, and prohibits, the institution of "proceedings", not a "matter", in Division 1.

40. The Full Court pointed out in Nevins one important objective of the legislative changes made on 1 September 2021 was to create a single point of entry for family law or child support proceedings and "[t]hat objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2" (at [5]). For that reason it is the transferred proceedings, to the extent they embody aspects of the justiciable controversy, which constitute the matter defining jurisdiction so far as this Court is concerned.

41. The effect of s 50 is that the appellant was required to file the spouse maintenance claim and application for leave to proceed out of time in Division 2 and seek a transfer to Division 1, if she deemed that course appropriate. That did not occur.

42. Instead, by operation of s 50(2), the proceeding was deemed to be transferred to Division 2.

43. The corollary of that is the primary Division 1 judge had no jurisdiction to entertain either the spouse maintenance application or the leave question, and the only order that could have been made was to dismiss the appellant's application before him.

1. Whilst Riethmuller J dissented, subsequently, in Vang & Chung (No 3) (2024) FLC 94-220, the majority, albeit in obiter dicta, said (at [155] and [163]) that it preferred and (at [158], [161] and [162]) that it agreed with the reasoning of his Honour. See [151]-[193] generally.
2. However, it is not necessary to consider this issue further, as s 51of the FCFCOA Act provides:

(1) If:

(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

(b) the proceeding is a family law or child support proceeding;

the Chief Justice may, by order, transfer the proceeding from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).

(2) The Chief Justice may transfer a proceeding:

(a) on the application of a party to the proceeding; or

(b) on the Chief Justice's own initiative.

1. The term "family law or child support proceedings" is defined in s 7(1) of the FCFCOA Act to mean "proceedings in respect of which the Federal Circuit and Family of Australia (Division 2) has original jurisdiction under section 132".
2. Section 132(1)(a) of the FCFCOA Act relevantly provides that the Federal Circuit and Family of Australia (Division 2) has original jurisdiction "with respect to matters in respect of which proceedings may be instituted under the Family Law Act1975".
3. Section 54 of the FCFCOA Act provides:

The Chief Justice may, in writing, delegate the Chief Justice's powers under section 51 or 52 to any one or more of the Judges.

1. Since the decisions of the Full Court in Gilford & Cavaco and in Vang & Chung (No 3), by instrument of delegation dated 2 June 2025, the Honourable Chief Justice of this Court, pursuant to s 54, delegated power under s 51 to Judges of this Court.
2. Section 181 of the FCFCOA Act provides:

(1) Proceedings may be instituted in the Federal Circuit and Family Court of Australia (Division 2) by way of application without the need for pleadings.

(2) Subsection (1) has effect subject to the Rules of Court.

1. Rule 2.01(1) of the Rules relevantly provides that, unless otherwise provided in the Rules, a proceeding must be started by filing an application for final orders.
2. Accordingly, I may transfer the proceedings, constituted of the order sought in the father's further amended Response to Initiating Application filed 1 July 2025, to this Court.
3. In deciding whether to transfer a proceeding, s 51(3) of the FCFCOA Act requires that I have regard to:

(a) any Rules of Court made for the purposes of subsection 53(2); and

(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 1); and

(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 1) are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

1. As to paragraph (a), sub-s 53(2)(a) provides that the Rules may specify, in relation to a proceeding to be transferred from the Federal Circuit and Family Court of Australia (Division 2), matters to which regard must be had in deciding whether to transfer a proceeding under subsection 51(1). However, r 9.02 of the Rules only applies to the transfer of proceedings from the Federal Circuit and Family Court (Division 1) to the Federal Circuit and Family Court (Division 2), and not from the Federal Circuit and Family Court (Division 2) to Federal Circuit and Family Court (Division 1). Further, r 9.05 only applies to the transfer of a proceeding between a court exercising jurisdiction under the Family Law Act "to another such court under section 45 of the Family Law Act" and, therefore, is inapplicable.
2. As to subsection (b), there are proceedings in respect of an associated matter pending in this Court, namely, the parenting and financial proceedings.
3. As to subsection (c), insofar as may be relevant, in the present case, the resources of this Court are clearly sufficient to hear and determine the proceeding constituted by the father's further amended Response to Initiating Application filed 1 July 2025, by which he seeks a harmful proceedings order.
4. As to subsection (d), the interests of the administration of justice manifestly favour the transfer of the proceedings from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
5. Accordingly, I consider it to be in the interests of the administration of justice to transfer the proceeding constituted by the father's further amended Response to Initiating Application filed 1 July 2025, insofar as he seeks therein a harmful proceedings order, from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
6. If I be wrong in this regard, it will be recalled that s 102QAC(4) provides that the Court may make a harmful proceedings order, not only on application by a party to the proceedings, but on its own initiative. I therefore turn to consider that application.
7. In order to prohibit the mother, pursuant to s 102QAC(1), as the father and the Independent Children's Lawyer seek, from instituting proceedings under this Act against the father, without the leave of the Court under s 102QAG, the Court must be satisfied that there are reasonable grounds to believe that:

(a) the father would suffer harm if the mother instituted further proceedings against him; or

(b) the child would suffer harm if the mother instituted further proceedings against the father.

1. Section 102QAC(2) provides that harm may include, but is not limited to, psychological harm or oppression; major mental distress; a detrimental effect on the other party's capacity to care for a child; and financial harm.
2. Further, s 102QAC(3) provides that, in determining whether to make such a harmful proceedings order, I may have regard to the history of the proceedings under the Act between the mother and the father; whether the mother has frequently instituted or conducted proceedings against the father in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of that section); and the cumulative effect, or any potential cumulative effect, of any harm resulting from such proceedings.
3. Nearly three and a half decades prior to the enactment of s 102QAC, in McEnearney & McEnearney [1980] FamCA 43; (1980) FLC 90-866 at 75,499, Nygh J said:

... the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

1. More recently, in Carey & Prescott (No 2) [2024] FedCFamC1F 512 at [158], Brasch J said:
   1. Harmful proceedings orders do not shut a party out of the court. Rather, if such an order is made, the relevant party (here the mother) cannot bring further proceedings without the leave of the court under s 102QAG. The sections seek to balance a party's right to institute proceedings on one hand, against such proceedings causing harm to the other party and/or the child on the other. If a harmful proceedings order is made, then a subsequent court is in essence the gatekeeper in balancing the former and the latter.
2. Her Honour further said (at [168]):
   1. I am well satisfied that B needs freedom from being the object and subject of further litigation without the court's leave. B knows no other life than the adults about him being in litigation. To that end I accept the well-reasoned opinion of the Family Report Writer that litigation conducted over B's entire life means he is "unlikely to have experienced a time of calm and stability in his care arrangements" and "this is likely to have had a negative impact on the parenting he received, with the strain and stress evident to [B]". I also adopt what Nygh J said in McEnerney extracted just above about on-going litigation causing "enormous psychological harm" on children, and in this case, B. I am also satisfied more litigation, without leave, will see him suffer the further harms of the adults around him not being available to him, as they otherwise might, and a childhood and teen years knowing nothing but litigation, or put differently, an absence of freedom from court.
3. In Cheadle & Pointer [2025] FedCFamC1F 27 at [84], Behrens J said:
   1. For me to have power to make a harmful proceedings order, I am not required to be satisfied on the balance of probabilities that harm will occur if further proceedings are instituted, but rather to be satisfied that there are reasonable grounds to believe there will be such harm. Harm is defined non-exhaustively in s 102QAC(2). Much litigation will cause mental distress. That something more is required is indicated by the fact that s 102QAC(2) refers to "major mental distress" as one kind of harm.

1. In Fowles [2025] FedCFamC1A 147, in an Application in an Appeal for leave to appeal, inter alia, from a harmful proceedings order, Austin J observed (at [5]) that, preceding the making of that order, the applicant husband did not have legal representation because no less than 33 legal firms had declined offers by the State legal aid agency to represent him. His Honour said at [6]:
   1. The husband produced two medical certificates to supposedly verify his illness, the first of which was useless because it merely attested to him being stressed (at [6]) and the second of which certified he was "unable to attend [the] court hearing" on 4 July 2025 (at [7]), but the second certificate also lacked probative value as the husband actually did attend the Court on 4 July 2025. In that respect, the primary judge said in the reasons:
      1. ... The husband submitted that he was "very sick" and "very unwell". He had nevertheless been able to attend Court, and he participated in the proceeding...

1. His Honour said (at [12]) that the harmful proceedings order was made -
   1. ... because the husband's voracious appetite for litigation in the confined period between March 2025 and July 2025 adversely affected the wife, which is to say nothing of his absorption of a disproportionate share of the Court's resources.
2. His Honour observed (at [13]) that, in a period of only a few months, the husband filed multiple interlocutory applications, many more affidavits, tried to issue subpoenas, and made professional complaints against the wife's lawyers. His Honour also referred to an extensive history of parallel litigation between the parties in State courts. However, all the while, the husband had apparently failed to comply with orders (as has the mother in this case, in relation to spending professionally supervised time with the child). The primary judge had accepted the wife's submissions of suffering financial and emotional detriment in having to deal with the barrage, and was satisfied there were reasonable grounds to believe she would suffer more harm if the husband initiated further proceedings.
3. In refusing the grant of leave, pursuant to s 102QAE(2), for the husband to institute an appeal against the harmful proceedings order, Austin J considered the various premises upon which the husband sought to attack the order, including that his medical condition on the relevant day precluded his meaningful participation in the proceedings; that due to illness, he did not have capacity on the relevant day to consent to the primary judge determining the harmful proceedings order on the papers; that he was denied procedural fairness on the relevant day; that the harmful proceedings order hindered his rights; and that it was procedurally unfair and/or jurisdictional error for the primary judge to refer to and rely upon applications filed by the husband in 2025 which were still undetermined. His Honour said:
   1. The first and second complaints are specious. The husband attended Court on 4 July 2025 and actively participated in the proceedings from 10.33 am until 11.32 am, as the transcript annexed to his affidavit demonstrates. His attendance at Court and his participation in the proceeding showed the medical certificates he produced were worthless. The husband plainly did consent to the primary judge deciding the "harmful proceedings" injunction on the papers and, having freely given his consent, his subsequent revocation of it did not preclude the primary judge from acting on the consent initially given. The Act only required that the husband be given the opportunity to be heard (s 102QAC(5)), as indeed he was.
   2. The third complaint is misconceived. The timetable was made to afford, not deprive, the husband of procedural fairness. As the prospect of the "harmful proceedings" injunction was raised with the husband for the first time on 4 July 2025, he was not expected to deal with it that day. Instead, the proceeding was adjourned and the parties were directed to file any evidence and submissions upon which they wished to rely. The husband took the opportunity he was given. He filed his submissions on 14 July 2025, which were then taken into account by the primary judge, even if the husband doubts it (second affidavit at [17]). He was heard.
   3. The fourth complaint is misconceived. The wife's lawyers had no interest at all in the mooted "harmful proceedings" injunction, which order only binds the husband by prohibiting him from initiating proceedings under the Act against the wife (without an anterior grant of leave). It serves no other purpose. The injunction does not preclude the husband from taking whatever action he deems necessary in respect of the wife's lawyers extraneously to the prosecution of fresh applications against the wife.
   4. The fifth complaint is misconceived. Obstructing the husband's ordinary right to commence new litigation against the wife at will is the precise intention of the injunction, not an unintended consequence of it. The injunction does not prevent the husband from contesting any applications pending before the Court at the time the injunction was made.
   5. The sixth complaint is misconceived. In the short period between March 2025 and July 2025, the husband filed no less than "15 applications and thousands of pages of affidavit material" (at [73]). The primary judge did not say those applications were "unmeritorious", as the husband wrongly alleges (second affidavit at [15]). The reference within the reasons to the statutory title to Pt XIB of the Act and the content of the Explanatory Memorandum which presaged its introduction (at [75]-[76]) is not part of the primary judge's commentary upon the nature of the husband's applications. Her Honour did not comment at all upon the ostensible merit of his unresolved applications, but rather focussed entirely upon the sheer volume of the litigious onslaught which caused the wife emotional distress and financial stress (at [85]-[86]).
   6. None of the premises upon which the husband intends to challenge the validity of Order 1 made on 16 July 2025 evinces any reasonable prospect of success and so, by definition, the intended appeal is vexatious (s 102Q(1)). The application for leave to appeal must therefore be dismissed (s 102QAF(2)).
4. In Brauner & Brauner [2025] FedCFamC1F 851, in making a harmful proceedings order, Johns J referred at length to the history of the proceedings, the conduct of the mother, against whom the order was sought, and the impact thereof on the father and the children. As in this case, the parties had been engaged in litigation, in relation to parenting matters, over the preceding six years, which her Honour accepted had had a significant detrimental impact on the father and the children. There had been Departmental involvement, resulting in the children being placed in the father's care, and family violence intervention order proceedings in the Magistrates Court of Victoria. After the making of final parenting orders, the mother had filed a Notice of Appeal which had been dismissed. Her Honour accepted that, as a result of the proceedings, and the mother's conduct in the course thereof, the father had suffered significant financial harm, albeit in that case due to the significant loss of time by him at work, as a result of the ongoing proceedings. The father submitted that the children had been distressed and suffered anxiety as a result of the ongoing litigation. Referring to the number of applications filed by the mother, which she accepted had been "onerous and placed a significant burden upon the father", her Honour was satisfied that, cumulatively, they had had "a significant harmful impact upon he [sic] and by virtue of his role as the children's primary care-giver, upon the children" (at [75]). Her Honour accepted that the "repeated filing and attempted filing of applications by the mother [had] caused both the father and the children psychological harm" (at [76]). Her Honour accepted that the ongoing proceedings had caused the father financial harm due to his inability to attend work as a result of court hearings and that the financial loss suffered by him had been felt by the children (at [77]). Her Honour referred to the filing of applications and multiple affidavits having been "onerous and distressing" for the father, which she accepted "inevitably adversely impacted the father and the children" (at [78]) and was "conduct likely to trigger anxiety and distress in the father" (at [79]) and which had caused the father financial hardship, been detrimental to his capacity to parent the children, caused anxiety in his household and was conduct that was "psychologically harmful and oppressive" to the father and the children (at [80]).
5. In the circumstances, her Honour concluded (at [82]-[88]):
   1. The purpose of the order sought by the father is to ensure that the mother cannot commence proceedings without the leave of the Court first obtained. The mother will have the ability to commence proceedings but there will be a restraint on the potential impact of those proceedings on the father and the children as the Court's leave will be required before the proceedings can progress.
   2. The reality is that the mother has repeatedly sought to re-agitate matters determined in the final orders made in November 2024. The children and the father are entitled to live peacefully without the interruption of court processes in the aftermath of those proceedings.
   3. Further, the mother's persistence in filing multiple applications has placed a significant burden upon the Court's resources. Significant Court time has been expended in the disposition of the applications filed by the mother since the final orders were made.
   4. It is well accepted that ongoing litigation in relation to a child is likely to visit enormous psychological harm upon them (McEnearney & McEnearney [1980] FamCA 43; (1980) FLC 90-866). Both children the subject of this application are in their late teenage years. Indeed, X will turn 18 in 2026. The children have been the subject of ongoing litigation since 2019.
   5. Having regard to that history, I am in no doubt that further litigation with respect to parenting arrangements, issued without leave, would likely cause both children further harm and will also impact and visit harm upon their primary carer, the father. The time has come to ensure that the children can live peacefully without the shadow of court events impacting their lives.
   6. Taking into account all of the above factors, pursuant to s 102QAC(3) of the Act, I am satisfied that:-

(a) The history of the proceedings under the Act relate to parenting issues;

(b) The mother has frequently filed and attempted to file applications in this Court and in the High Court of Australia as identified earlier;

(c) The proceedings commenced by the mother have had the cumulative effect or potential cumulative effect of harm to the father and the children.

1. I am also satisfied that there are reasonable grounds to believe that one or both of the father and the children will likely suffer harm if the mother brings further proceedings in the future.

1. See also Vaughan & Vaughan (No 3) [2025] FedCFamC1F 455.
2. I have set out the history of these proceedings extensively above and they do not bear repetition in any detail; a summary, albeit incomplete, will suffice. The proceedings were instituted by the mother in May 2019. The trial thereof commenced on 29 August 2022 but was adjourned on 30 August when the mother lost her legal representation appointed by reason of an order made pursuant to s 102NA of the Act. The part-heard trial was listed to resume on 17 April 2023. However, in the result, Victoria Legal Aid refused to appoint further legal representation for her. The adjourned date for the resumption of the part-heard trial was subsequently required to be vacated when an order for the appointment of a litigation guardian for the mother was made. Upon the appointment of a litigation guardian, the part-heard trial was listed to resume, and resumed, on 18 September 2023. The mother's litigation guardian appeared self-represented. However, one day later, on 19 September 2023, the litigation guardian sought to be, and was, discharged from her appointment. In the circumstances, the proceedings were struck out, with a right to seek the reinstatement thereof within 12 months. Almost upon the expiration of that period, on 7 August 2024, the mother filed an application for reinstatement of the proceedings, which application was granted on 20 December 2024. On 27 February 2025, orders were made relisting the reinstated part-heard trial to resume on 14 July 2025. The mother sought leave to appeal those orders, which application was dismissed by the Full Court on 3 July 2025. The part-heard trial resumed on 14 July 2025 and, over the ensuing three days, the mother refused or failed to prosecute her case, to enable the testing of her evidence, to defend the case of the father and the Independent Children's Lawyer, and to test the evidence, including the expert evidence, adduced by them. Since February 2022, she has made three applications for me to recuse or otherwise disqualify myself, all of which were dismissed. Proceedings have been instituted in the Magistrates' Court of Victoria, by her or by Victoria Police on her behalf, against the father and his parents. At least 13 reports have been made by her, or on her behalf, to the Department of Health and Human Services (now the Department of Families, Fairness and Housing), all of which were closed, most upon intake. Notwithstanding the order for professionally supervised time, twice weekly, for up to three hours on each occasion, the mother had not availed herself or, more importantly, the child of the benefit thereof, for some 2.5 years by the end of the trial. Given the parenting orders that I have determined to make, there should be little reason for the mother to need to institute proceedings hereafter. A harmful proceedings order will not shut her out from instituting further proceedings, including any appellate proceedings in respect of the orders the subject of these reasons; rather, it will only require her to apply to the Court for leave to do so and will, thereby, protect the father and the child.
3. I also take into account the evidence in chief of Ms R, in her second parenting report and in cross-examination which included, in summary, the following matters.
4. In her second Family Report, Ms R reported that there was a "raft of litigation concerns" the mother said she wants addressed (at paragraph 17); that the father was concerned that the mother will continue to make baseless allegations of harm perpetrated by him and engage in ongoing litigation, that will ultimately be harmful to the child, and could compromise her ability to experience a carefree and unencumbered childhood (at paragraph 18); that, unlike in her first Family Report in 2022, the mother "seemed to present with a high degree of focus on the litigation" (at paragraph 19); that the mother "impressed as largely preoccupied by the litigation and Court processes asserting throughout the assessment that she regards the process has been somewhat hijacked by systems abuse, and bias" (at paragraph 22); that the father presented with a "degree of litigation fatigue and exasperation that the process continues and seems never ending" (at paragraph 24); that the father indicated that "there are times when he finds it difficult to look to [sic] far into the future, especially if this might entail continual embroilment in never ending litigation, complaints, and appeals" (at paragraph 24); that the mother's "narrative reflected a preoccupation with the litigation, procedural unfairness, and bias, which equated to systemic abuse in her view" (at paragraph 41); that, while the child presented then as largely shielded from the litigation, that might not always be so in the future, "especially if there are continual allegations of risk and any further proceedings" (at paragraph 71); that, as the child grows and develops, her "entwinement" within any further litigation in the future may increase, as she will likely be called upon to respond to allegations of risk (at paragraph 71); that the impact on the father, as the child's primary (and, indeed, sole) carer, of protracted litigation "detracts parental resources, both financial, time and focus away from the growing child", who will begin to form her own perceptions and ideas about herself and her family, which can adversely impact her sense of self, her sense of identify and her developmental trajectory (at paragraph 71).
5. Further, it will be recalled that, in cross-examination, Ms R reported that, since her first Family Report in 2022, the mother had become more entrenched and pre-occupied with the litigation. She agreed that the mother has "strong fixed views" about the father, and spoke of her "unrelenting campaign" of allegations of family violence by him and his family and her "unrelenting belief" that the child was being subjected thereto in his care. Further, Ms R opined that the mother's course of conduct, namely, complaints and litigation against the father, may continue, in her quest to obtain what she considers to be "just".
6. Prior to the recommencement of the last tranche of the trial, a costs notice was filed on behalf of the father on 11 July 2025. It discloses that, until that date, he had incurred total costs and disbursements (including unbilled, and third party expenses paid directly by him) totalling $520,660. Further, his total estimated future costs and disbursements, up to and including the conclusion of the trial, were $67,500. Accordingly, it was estimated that the husband had incurred and would incur costs and disbursements in these proceedings totalling $588,160. In circumstances where the last tranche of the trial occupied three (rather than the estimated five) court days, it may be that the total costs and disbursements will be slightly less than that total amount. On any view, the father has incurred very substantial costs and disbursements which, I find, have in large part arisen by reason of the mother's conduct throughout these long-running proceedings.
7. In all of the circumstances of this case, I am amply satisfied that each of the father and the child would suffer harm if the mother instituted further proceedings against him, being harm comprising psychological harm or oppression. Further, I am amply satisfied that the father would suffer harm if the mother instituted further proceedings against him, being harm comprising a detrimental effect on his capacity to care for a child and financial harm.
8. In so concluding, I have had regard to the history of the proceedings under the Act between the mother and the father; the manner in which the mother has conducted these proceedings, both in this Court and, previously, in the Federal Circuit Court of Australia against the father; and the cumulative effect, and the potential cumulative effect, of the harm to the father and the child resulting from these proceedings.
9. Section 102QAC(5) prohibits the making of a harmful proceedings order in relation to the mother without hearing the mother, or giving the mother an opportunity to be heard. For the reasons herein, I am satisfied the mother was given ample opportunity to be heard, and that she repeatedly refused or failed to avail herself thereof.
10. In the circumstances, a harmful proceedings order will be made, as the father seeks and as the Independent Children's Lawyer supports.
11. Orders will be made to give effect to these reasons for judgment.

I certify that the preceding four hundred and three (403) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.