Cresswell & Conroy [2025] FedCFamC1F 770 (31 October 2025)

(a) The father is to notify the mother in writing with notice of his intention to make any long-term decision (the "proposed decision") for the child at least fourteen (14) days prior to making a decision;

(b) The mother is to provide a written response to the father's proposed decision within seven (7) days of receiving the proposed decision;

(c) The father is to consider the mother's response to the proposed decision and inform the mother of his ultimate decision; and

(d) In the event that the mother does not provide a written response to the father in accordance with Order 3(b) herein, the father is authorised by these orders to make the proposed decision.

1. The child live with the father.
2. The father be permitted to relocate the residence of the child to a location within 120 kilometres of the City C Post Office.
3. The child spend time with the mother as follows:

(a) During school term periods, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, being those weekends when the father's stepchildren are not otherwise in his care;

(b) For half of each school holiday period at times and dates and for such periods agreed to by the parents in writing, and in the absence of such agreement, for the first half of each school holiday period in odd years and the second half of each school holiday period in even years;

(c) On Mother's Day from 10am until 5pm should such day fall on a weekend when the child would otherwise be living with the father pursuant to these Orders; and

(d) At such other times and dates and for such other periods as agreed to by the parents in writing.

1. In the event that Father's Day falls on a weekend when the child would otherwise be spending time with the mother pursuant to these Orders, such time with the mother shall be suspended between 10am and 5pm on Father's Day.

1. All changeovers are to take place at the child's current school during school terms and on school days.
2. In the event that changeovers cannot take place at the child's school, the father shall deliver the child to the mother's residence at the commencement of the child's time with the mother, and the mother shall return the child to the father's residence at the conclusion of the child's time with the mother.
3. Pursuant to Orders 8 and 9 herein, the mother and the father may utilise a delegate to execute changeovers, provided that the delegate is someone known to the child and is someone with whom the child is comfortable.
4. Notwithstanding Order 10 herein, the mother shall be restrained from using Mr BA as her delegate to execute any changeovers.
5. The mother and the father strictly comply with the provisions for changeover except in circumstances of an emergency.

1. The School Holiday Period shall start from the conclusion of the last day in the school term of the child's school to the commencement of school on the first day of the next school term of the child's school, and include any public holidays or pupil free days at either the commencement or conclusion of the School Holiday Period.
2. The First Half of the Term 1, Term 2 and Term 3 School Holiday Periods will conclude at 4pm on the Friday at the end of the first week of each school holiday period.
3. The First Half of the Term 4 School Holiday Period will conclude at 4pm on the Friday at the end of the third week of the school holiday period.

1. The mother may have telephone communication with the child no more than twice per week on days and at times as agreed by the parents in writing, and in the absence of agreement, each Wednesday between 5pm and 6pm and each Saturday between 4pm and 5pm, with such calls to be facilitated by the father or his delegate.
2. The mother shall facilitate any reasonable telephone communication between the child and the father on the child's request when the child is in her care.
3. During the School Holiday Period when the child is spending time with the mother, the father have telephone communication with the child no less than twice per week on days and at times as agreed by the parents in writing, and in the absence of agreement, each Wednesday between 5pm and 6pm and each Saturday between 4pm and 5pm, with such calls to be facilitated by the mother or her delegate.

1. The parents are to use Our Family Wizard, or another communication app if agreed to in writing, to communicate with each other as necessary to facilitate the parenting of the child or to give effect to these Orders.

(a) Exposing the child to violence including verbal and physical threats or intimidation;

(b) Physically disciplining the child;

(c) Denigrating the father or members of the father's family in the presence or hearing of the child, and the mother do all acts and things reasonably necessary to prevent any other person from doing so;

(d) Except in compliance with these Orders, from discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party from doing so; and

(e) Making critical or derogatory remarks on social media, such as Facebook or X (formerly Twitter), about the father or referring in any way to the proceedings.

1. The mother (except to comply with these Orders) be restrained by injunction from approaching or causing others (including, but not limited to, Mr BA) to approach within 100 meters of:

(a) The father, the father's spouse Ms CC, the children and stepchildren of the father, the paternal grandparents or the child; and

(b) Any real property owned or occupied by the father including but not limited to the property situated at AY Street City C and the property situated at B Street City C .

1. The mother, father and the child (as directed by the therapist) consult a therapist with experience providing parenting advice and family and individual child therapy, in the context of high conflict parental separation and child developmental difficulties (ASD).
2. The father be responsible for the selection of the therapist and may seek a nomination or recommendation from Dr CD.
3. In the course of choosing the selected therapist, the father do all things necessary to ensure the therapist is approved by the NDIS for funding applicable to the child.
4. The parents facilitate all appointments between the child and the therapist as directed by the therapist.
5. The parents are to remain actively engaged in the therapeutic process and attend separate sessions with the therapist when requested by the therapist from time to time.
6. The parents are to follow all reasonable recommendations of the therapist.
7. The parents do all acts or things necessary for the therapist and the child's school to communicate with each other, such that the therapist's work can extend to assisting with any emotional, behavioural or peer relational difficulties in the school setting.
8. The parents provide to the therapist a copy of these Orders, the single court expert report of Dr CD dated 27 January 2025 and the final judgment of the court in respect of those proceedings.
9. The mother be restrained by injunction from taking the child to see any other therapist or counsellor.
10. The costs of therapy pursuant to these Orders are to be paid as follows:

(a) The father is to use his best endeavours to ensure that any NDIS funding available to the child for therapy as ordered herein is utilised, and to the extent such funding does not cover the entire costs, then:

(i) The father pay for all attendances by him upon the therapist;

(ii) The mother pay for all attendances by her upon the therapist;

(iii) The mother and the father share equally the costs of any attendances by the child upon the therapist.

1. The father do all things necessary to authorise the child's school to provide the mother with copies of all reports, photos, newsletters, and any other information or documents regarding the child's progress or activities.
2. The father be permitted to attend all school functions, sports carnivals, extracurricular activities and any other special events that the child attends whilst in the mother's care.
3. The mother be restrained by injunction from attending any events at the child's school or extracurricular activities that fall outside the child's time with the mother pursuant to these Orders, unless by specific invitation in writing from the father, to which the mother has confirmed in writing that she will attend.
4. The mother be restrained from attending any of the child's ordinary weekly sporting games or other extracurricular activities during the father's time with the child, or from taking on roles within the organisations providing such sporting or extracurricular activities, without the written agreement of the father.
5. In the event the child is unable to attend school or any sporting or extracurricular activity including due to illness, the child is to remain in the care of the parent with whom the child is living or spending time pursuant to these Orders, and the parent who has care of the child is to notify the other parent as soon as practicable (and in any event within 12 hours) of the reason for the child's non-attendance at school or the relevant extracurricular or sporting activity.
6. The mother and the father are to each ensure that the child attends school on school days when the child is in such parent's care pursuant to these Orders, unless the child is too ill to attend or otherwise has a reasonable excuse for not attending.
7. The parents be permitted to provide a copy of these Orders to any school or activity provider attended by the child from time to time.

1. The father be permitted to nominate no more than one (1) weekend extracurricular activity that the child may attend at any one time, and the mother shall ensure that she takes the child to such weekend activity.
2. The child shall be at liberty to attend more than one (1) weekend extracurricular activity in the event that the parties agree in writing to same.

1. The parents keep each other advised of their current residential address, and a mobile number and email address at which they may be contacted, and advise the other parent of any changes within seventy-two (72) hours of such change.
2. The father keep the mother informed of the names and professional addresses of any professionals involved in the child's care, for example the medical centre and specific general practitioner to which the father takes the child, any therapist, paediatrician, tutor or coach involved in the child's care.
3. The mother be restrained by injunction from:

(a) attending in person at any professional medical/health appointments for the child with the father and the child;

(b) causing the child to attend any medical appointment, or scheduling any medical appointment for the child that it not an emergency medical appointment.

1. The mother is at liberty to schedule her own separate appointments with any of the child's health professionals for the purpose of the mother attending upon such health providers in person or by audio-visual link in the absence of the child to gain input from them and to pass on to them her observations PROVIDED the health professional agrees to speak to the mother and has been provided with a copy of these Orders and the reasons for judgment.
2. The mother and the father be entitled to obtain directly from any school, extracurricular, sporting, health or welfare organisation or professional attended by the child copies of any reports, notices or other relevant verbal or written advice affecting the education, health, and welfare of the child as are ordinarily provided to parents, and for this purpose the mother and the father will immediately notify the other parent of the names and contact details of any relevant education, health or welfare professional and keep the other party informed.
3. In the event the child is involved in any medical or other emergency circumstance impacting the child's health or welfare, the parent with whom the child is living or spending time is to notify the other parent as soon as practicable and no less than 12 hours after the commencement of the circumstance about the medical or other emergency.

1. The father shall be authorised by these Orders, for the purpose of s 11(1)(b) of the Australian Passports Act 2005 (Cth), to apply for an Australian passport on behalf of the child without the mother's consent.
2. The father shall at all times hold the child's passport except when and if the mother is travelling overseas with the child pursuant to these Orders.
3. The mother and the father are permitted to travel outside of the Commonwealth of Australia with the child, provided that:

(a) In the case of the mother:

(i) no less than 30 days prior to the intended date of departure, the mother must provide the father with written details of the proposed travel including all destinations of travel, dates and methods of travel;

(ii) no less than 14 days prior to the intended date of departure, the mother must provide the father with a detailed and complete itinerary showing the following information:

1. dates and methods of travel (including flight and ship number, departure and arrival);
2. all destinations of travel; and
   1. addresses of all accommodation where the child will be residing;

(b) In the case of the father, no less than 7 days prior to the intended date of departure, the father must provide the mother with written details of the proposed travel including all destinations of travel, dates and methods of travel and a detailed and complete itinerary showing the following information:

(i) dates and methods of travel (including flight and ship number, departure and arrival);

(ii) all destinations of travel; and

(iii) addresses of all accommodation where the child will be residing.

1. Any period of proposed travel by the travelling parent must be during a period when the child would otherwise be living or spending time with the parent pursuant to these Orders, unless otherwise agreed to by the parents in writing.

1. The Independent Children's Lawyer provide a copy of these Orders and the reasons for judgment to Dr CD.

1. Within 42 days of the making of these Orders, the applicant pay to the respondent the sum of $591,294.
2. Upon the payment of the sum in Order 52 above, the applicant be declared the sole legal and equitable owner, to the exclusion of the respondent, of:

(a) the property situated at E Street Town F NSW [...] ("the [Town F] property");

(b) the property situated at D Street City C NSW [...] ("the [D Street] property");

(c) the property situated at G Street Town H ("the [Town H] property");

(d) the property situated at CE Street Town CF ("the [Town CF] property").

1. The applicant be and is restrained by injunction from encumbering, transferring or dealing in any way with any of the real properties listed in Order 53 above, save and except for the express purpose of raising funds for the payment in Order 52 above and this restraint shall be operative up to and including the day on which the applicant makes payment of the amount provided in Order 52 above, following which the injunction shall automatically lapse.

1. Should the applicant not make the payment referred to in Order 52 above within the time specified, Orders 55 to 58 shall apply:

(a) The parties forthwith do all acts and things necessary and sign all documents, consents, writing and instruments necessary to sell the Town F property as follows:

(i) The respondent nominate three real estate agents within 44 days of the making of these Orders;

(ii) The applicant select one of the nominations within a further 7 days and advise the respondent in writing of such selection, failing which the respondent shall be at liberty to finalise the selection and shall notify the Applicant of said selection within 8 days of the time provided in Order 55(a)(i);

(iii) The applicant and the respondent within a further 3 days do all things necessary to engage the selected real estate agent and list the Town F property for sale at a guide price and with a reserve price agreed between the parties, and failing agreement as determined by the real estate agent;

(b) Should the Town F property not be sold within 3 months of the date of listing, the parties forthwith do all acts and things necessary and sign all necessary documents, consents, writing and instruments to list the Town F property for Auction with an Auctioneer agreed to between the parties at a reserve price to be agreed between the parties, or failing agreement, as determined by the real estate agent.

(c) The solicitors acting on the sale be those mutually agreed upon between the parties, and if there is no agreement then the solicitor acting on the sale be Mr CG of Joshua Blom Lawyers.

1. The proceeds of the sale of the Town F property be distributed as follows:

(a) In payment of the real estate agent's reasonable fees, auctioneer's fees (if any) and all solicitors legal costs of the sale;

(b) In payment of council and water rates as adjusted on settlement of the sale;

(c) In payment of any mortgage encumbrance;

(d) $591,294 to the respondent; and then

(e) the balance (if any) to the applicant.

1. In the event that the balance payable to the Respondent in Order 56(d) of $591,294 is not satisfied or met via the sale of the Town F property, then:

(a) The parties forthwith do all acts and things necessary and sign all documents, consents, writing and instruments necessary to sell the D Street property as follows:

(i) The respondent nominate three real estate agents within 7 days of the payment in Order 56(d) above;

(ii) The applicant select one of the nominations within a further 7 days and advise the respondent in writing of such selection, failing which the respondent is at liberty to finalise the selection and is to notify the applicant of said selection within 8 days of the time provided in Order 57(a)(i);

(iii) The applicant and the respondent within a further 3 days do all things necessary to engage the selected real estate agent and list the D Street property for sale at a guide price and with a reserve price agreed between the parties, and failing agreement as determined by the real estate agent;

(b) Should the D Street property not be sold within 3 months of the date of listing, then the parties forthwith do all acts and things necessary and sign all necessary documents, consents, writing and instruments to list the D Street property for Auction with an Auctioneer agreed to between the parties at a reserve price to be agreed between the parties, or failing agreement as determined by the real estate agent;

(c) The solicitors acting on the sale be those mutually agreed upon between the parties, and if there is no agreement then the solicitor acting on the sale be Mr CG of Joshua Blom Lawyers.

1. The proceeds of the sale of the D Street property be distributed as follows:

(a) In payment of the real estate agent's reasonable fees, auctioneer's fees (if any) and all solicitors legal costs of the sale;

(b) In payment of council and water rates as adjusted on settlement of the sale;

(c) In payment of any mortgage encumbrance;

(d) An amount to the respondent to ensure that the respondent receives a total sum of $592,294 from the sales of the Town F property and the D Street property;

(e) the balance to the applicant.

1. The respondent be declared the sole legal and equitable owner of the property situated at B Street City C ("the [B Street] property") to the exclusion of the applicant.
2. Except as otherwise provided in these Orders, the applicant and the respondent be solely liable to the exclusion of the other for any debt - past, present or future - standing in their respective names.
3. Except as otherwise provided in these Orders, the applicant and the respondent be solely entitled to the exclusion of the other to:

(a) All items of personalty in their respective possession, custody and control;

(b) Any funds, shares or other investments standing in any bank account in their name;

(c) Any superannuation fund in an account in their name;

(d) Any business name or registered corporate entity of which they are either a director, shareholder or registered owner.

1. Except as otherwise provided in these Orders, the parties have sole right, title and interest in any other property including real property, motor vehicles, cash at bank, superannuation and items of personalty, which are at the date of these Orders in their possession, title or name, and they shall be solely liable for and indemnify the other against any personal liabilities.
2. Pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is authorised to execute any document or do any such thing as is required to give effect to these Orders in the event of a default of a party to execute such document or do such things as in necessary under these Orders.

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

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

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

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

1. The applicant mother and respondent father are unable to agree as to the parenting arrangements for their child, X (born 2014), nor as to property settlement orders.
2. The matter commenced in 2016. Interim orders were made on 1 May 2017 for the child to live with the mother and spend time with the father. The child's time with the father was extended to overnight time on 9 September 2017.
3. The first final hearing of the matter commenced on 11 February 2019. On 15 February 2019, the hearing had to be adjourned due to the mother experiencing an acute mental health episode during cross-examination. At that time, the judge hearing the matter made interim orders placing the child in the father's care and allowing supervised time with the mother.
4. On 22 February 2019, the mother's brother was appointed as her case guardian and continued as guardian until 23 April 2020 when the mother was sufficiently recovered. A variety of other applications were filed and further evidence was heard on various dates. Judgment was given and final orders were made on 15 March 2023.
5. The mother appealed against the final orders. The appeal was heard by McClelland DCJ on 22 September 2023. On 22 November 2023, the Deputy Chief Justice allowed the appeal and invited the parties to make submissions as to whether his Honour ought to re-exercise discretion on the material before him in the appeal or that the matter should be remitted for re-hearing. The matter was remitted for re-hearing on 20 December 2023. After the matter was remitted for re-hearing, it took the parties some time to obtain another expert report (which was required because there had been many years since the last expert report had been prepared). As a result, this hearing could not proceed until 2025.
6. The current parenting arrangement, which is in accordance with the primary judge's orders of 15 March 2023, provides (in substance) for the father to have sole parental responsibility, the child to live with the father and to spend time with the mother on alternate weekends (Friday after school until Monday before school).
7. The father seeks sole parental responsibility for all major long-term decision-making, that the child live with him, and that the child spend time with the mother on a fortnightly basis on weekends.
8. The mother seeks orders for joint decision-making responsibility, that she have sole decision-making responsibility for medical decisions, and that the child live with her and spend time with the father on alternate weekends. However, during cross-examination, the mother said she was supportive of the child's wishes for equal time.
9. The Independent Children's Lawyer seeks final orders that are broadly the same as those sought by the father.

1. The mother has been employed as an educator since 2007 and is also qualified as a professional. The father is a transport worker.
2. Both parties are currently 40 years of age (the father one week older than the mother). The parties had an interrupted relationship across many years:

(a) The parties met while attending the same high school and commenced their relationship in June 2003.

(b) In 2003, the father began staying overnight at the maternal grandmother's home located at V Street, City C NSW [...] ("the [V Street] property"). The parties are in dispute as to the time period during which the father resided at the maternal grandmother's home (if at all). The father says he lived at the V Street property from the end of 2004 until 26 July 2015.

(c) In 2004, the father travelled to the United States of America to complete his Scholarship and returned to City C in 2004, where he says he moved into the maternal grandmother's home with the mother.

(d) From May 2005 to around December 2006, the father says he would spend the weekends with the mother at the V Street property while working in City Y for a few days of the week.

(e) From 13 December 2006 to around 20 September 2007, the father moved to work in City AC, during which time the mother ended the relationship. In October 2007, the parties resumed their relationship and the father claims he moved back to live with the mother at the V Street property.

(f) In 2008, the mother moved to the United Kingdom for 12 months. The father says he again remained at the V Street property until 7 April 2008, after which he departed to undertake training in Town CH, Victoria. In March 2008, the mother said that she initiated a "break" in the relationship, although there is evidence that she continued to be in contact with the father and at one point sought a transfer of funds from him.

(g) Upon the mother's return to Australia in February 2009, the parties resumed their cohabitation. The father says he stayed at the V Street property until the end of July 2009.

(h) Around July 2009, the father moved to Adelaide for work. Around February 2010, the mother moved to Adelaide to live with the father at CJ Street, Suburb CK SA [...].

(i) The mother moved back to City C at the end of 2011, and on 12 February 2012, again, terminated their relationship. The father returned to City C in December 2012. The mother says that the parties recommenced their relationship in June 2013.

(j) By 2015, the parties' relationship had broken down. On the father's account, the parties separated on a final basis in June 2015 and on the mother's, in October 2014. The mother sought and obtained an ADVO on [...] January 2016 for a period of 12 months.

1. The father entered into a relationship with his current wife, Ms CC, in 2018. They have one child together, CL (born 2023) who is aged one year. Ms CC also has three other children from a previous relationship: CM aged 16, CN aged 10 and CO aged nine.
2. The mother has not re-partnered.

1. The mother was an evasive witness, often unable to answer simple questions in a straightforward way. When asked to answer questions that she found difficult, her responses often indicated a literal interpretation of the question that circumvented the purpose of the question. At times, she gave answers which were irrelevant to the questions asked and were simply unhelpful.
2. The mother gave evidence about allegations of family violence. When asked by counsel for the father if she had ever slapped the father, she said that she never had an injury on her hand nor a broken arm. Counsel for the father took the mother to her witness statement made to police dated [...] August 2015 where she had said to the police officer:

CRESSWELL: We had an argument the other week and it got a little bit out of hand. I slapped him and he kicked me, I have pictures of the bruise on my leg.

(Father's Affidavit filed 18 January 2025, p.250 of the exhibit items)

1. When asked again (during cross-examination) if she remembered slapping the father, she responded, "I have blocked things out of my mind". When I had asked the mother earlier in the trial if she had ever slapped the father, her answer was "no".
2. The mother took the child to a dentist on [...] April 2024 (without advising the father). The father was telephoned by the dental assistant and expressed his reluctance to proceed with an x-ray of the child's teeth unless it was necessary to do so. The mother said x-rays were taken on that day. The father in his affidavit filed 18 January 2025 (at paragraph 677) said he called the dentist and was informed that no x-rays were taken on the day. It was put to the mother that she was unsuccessful in facilitating the x-ray on [...] April 2024 and therefore proceeded to take the child to another dental appointment on [...] May 2024 for the purposes of obtaining an x-ray. The mother denied this and said she had only taken the child to a dental appointment on [...] April 2024. Exhibit 4 is a dental record from CP Dental Centre, where the clinical notes dated [...] May 2024 record the following:

Presented with mother for Xrays today as Mum said dentist did not take Xrays at previous clinic

BWs [bitewing radiographs] taken...

[X] would like a printed copy of his Xrays

(Emphasis added)

1. There is no credible evidence that the child required dental treatment.
2. When counsel for the father asked the mother why she failed to tell the judge at the first trial, on 13 February 2019, about the child's enrolment in kindergarten, she said she refrained from doing so in order to protect the child. The mother only disclosed that information at the last trial when specifically prompted by being asked if the child was attending school. When asked by counsel for the father whether she was, on reflection, wrong to have withheld this information from the court at the first trial, her response was that "questions were asked, and I answered the questions as they came."
3. At one point, the mother suggested that the father should have drug and alcohol testing conducted on every occasion prior to seeing the child, but did not ultimately press this point. The father is a transport worker who is subject to regular drug and alcohol testing during the course of his employment. There is no evidence of the father having a substance abuse problem.
4. On discovering that the child was being assessed for autism spectrum disorder ("ASD"), the mother told the child that such a diagnosis would prevent him from obtaining a driver's licence. She maintained she found out about this from internet searches and that it was important to be truthful to the child. I am not persuaded that the mother was genuine in this regard, as there is no evidence that ASD would result in a child (who has generally been coping with day-to-day life and school) being prevented from obtaining a driver's licence. At best, the diagnosis would need not be disclosed. The mother was quick to seize on a speculative risk that would cause the child distress.
5. At the commencement of closing addresses, counsel for the mother made a list of significant concessions:

(1) That there can be no dispute that the child is on the autism spectrum. However, despite a formal assessment of the child being at Level [...], the concession was only that "He's probably not [level] [...]. He may or may not be [level] [...], but he's certainly on the spectrum".

(2) That Mr BA (a person referred to in the evidence whose relationship with the mother and maternal grandmother was unclear) was available and not called, and that his evidence would not have assisted the mother had he been called.

(3) That Mr BA should not be alone with the child nor in the same premises as the child overnight.

(4) That Mr BA, the mother and everybody associated with the mother ought be restrained from speaking negatively about the father and members of his household.

(5) It was no longer put that the father raped the mother.

(6) It is no longer contended that the child has been sexually interfered with by the father or anybody else.

(7) That the mother has suffered from at least two psychotic episodes leading to her admission to hospital.

(8) That the mother gave tangential answers repeatedly and from time to time during her evidence.

(9) That it was no longer put that the father ever abused drugs or that he was ever unfit for the performance of his duties as a transport worker, or that he has ever worked affected by alcohol or any other drug.

(10) That the mother's income tax return does not disclose all of her income and all of her allowable deductions.

(11) That the supermarket incident (where the mother and Mr BA accosted the father's current wife) involved sarcastic and silly behaviour and immature behaviour on the part of the mother or, alternatively, the mother in the company of Mr BA.

(12) That the father's wife, Ms CC, was a generally impressive witness.

1. I formed the view that I could not place any weight upon the mother's evidence.

1. The father was an open witness. It was apparent that the long-running litigation had exacted a considerable emotional toll. He was, at times, somewhat curt, but given the extensive unfounded allegations that he has suffered, this was understandable. He impressed as a truthful and honest witness who made concessions where they were appropriate.
2. Counsel for the mother pressed on many occasions questions relating to the father's drinking habits, suggesting that the father was a heavy drinker whilst living in Adelaide. Counsel for the mother pointed to a specific event involving the father where he was said to be heavily inebriated (consuming 12 to 14 standard drinks) at a cousin's 18th birthday party. The event was alleged to have resulted in the father sustaining love bites on his neck, which he did not notice at the time. The father denied these claims and said he had been involved in an altercation with his twin brother. The maternal grandmother said she kicked the father out of her house following a party when he and the mother came back to her house and he was seen with love bites on his neck. Whilst the incident was seen as significant by the mother, at worst it was one aberrant incident around 15 years ago when the father was in his twenties.
3. The father said that his main priority was to co-parent without conflict, and that equal time would be difficult given the nature of the parties' relationship thus far. The father initially thought equal time arrangements would work appropriately but no longer believes this is the case. The father made concessions. He said he was not "blameless" and agreed there were certain oversights on his behalf and areas of parenting in which he could improve.
4. During cross-examination, the father stated that the child was overfed at the mother's home. According to him, the child would return from the mother's home and vomit. The father said that the child disclosed to him that the mother was feeding the child too much. The mother's concern was that the child's nutritional needs were not being met at the father's home.
5. The father said he faced different options with regard to the child entering high school next year. One consideration was whether the child would benefit from attending a school which had a specific ASD stream, or alternatively, a school without an ASD stream but one that otherwise delivered good quality education. The father made clear that his preference would be to ascertain expert advice about the best schooling options for the child, disclosing that he would not be able to decide immediately without the necessary professional advice.
6. I found the father an impressive witness and generally accept his evidence.

1. Ms R, the maternal grandmother, was a very forthright witness, however, many of her answers were marred by difficulties of memory.
2. I found her evidence about whether the father was living at the V Street property in 2007 and 2008 to be less than convincing. She said the father did not live at the V Street property, yet he would, on occasion, spend a couple of days there. She could not recall how many days, but denied the father was living at her house for some of the time. She denied the suggestion that the father slept at her residence very regularly for long periods of time. The maternal grandmother said the father would come to visit the child at her house and subsequently leave.
3. However, she accepted that the father's work equipment was set up at her home in the computer room from 2005 (which would have been difficult to deny in light of a photograph of the work equipment in the room) but said he would come and go to use it. Her explanation for why the father would set up the work equipment at her home and not his own home was that she said he told her everything would go missing at his home. Another photo from this time depicted the child with the father's work handbook. The maternal grandmother also gave evidence that she had loaned the father approximately $2,000 to complete his work training programme, which she agrees the father paid back to her. I do not accept the maternal grandmother's evidence as to the living arrangements.
4. After the mother's hospitalisation during the first trial, the maternal grandmother said she was unaware of any hospital staff attempting to contact the mother after her discharge from hospital for the purposes of arranging follow-up appointments. However, the hospital notes (Exhibit 11) set out:

[Hospital] made multiple attempts to contact [Ms Cresswell] over the phone but was unsuccessful. her mother and carer contacted [Hospital] to report that [Ms Cresswell] had started working as [an educator], and would not be able to attend appointments at [Hospital]. [Hospital] requested phone call from [Ms Cresswell] (via her mother) to confirm ongoing case management with [Hospital].

1. The maternal grandmother's explanation was that it was not up to her to follow up as her daughter is an adult. It appears that the maternal grandmother was attempting to minimise the mother's mental health issues.
2. The maternal grandmother denies that she was in a relationship with Mr BA and said Mr BA now lives in Queensland but had stayed at her house for a couple of days a few years ago. However, there was evidence that Mr BA was present in the precincts of the court at the trial. I remain uncertain as to the nature of the relationship between Mr BA and either the mother or maternal grandmother.
3. The maternal grandmother was aware that the mother had conducted research on whether a diagnosis of ASD would result in the child not being able to receive his driver's licence, and also that the mother had a conversation of that nature with the child. The maternal grandmother was satisfied that the mother had told the child about the driver's licence issue but said that the mother did not tell the child that he would be a "retard" or in a wheelchair. When asked whether it was necessary for the child to know about the potential of not being able to drive (if it were a real risk), the maternal grandmother was of the opinion that it was important to be truthful to the child. It is difficult to know if this view was genuine or stated in an attempt to support the mother's case.
4. I treat the evidence of the maternal grandmother with considerable caution.

1. Ms S is the paternal grandmother. Her cross-examination was brief. She presented as an open and credible witness.
2. The paternal grandmother gave evidence that the father lived at the V Street property four or five days a week, but after he started working, he lived there permanently. She said the father was living at the V Street property but staying at different locations too, due to the nature of his work as a transport worker.
3. The paternal grandmother was not aware that the father had included the property situated at AY Street City C as his place of residence at the time of the child's birth.
4. The paternal grandmother said she had signed a loan agreement with the father on 11 May 2020 (annexed to her affidavit filed 17 January 2025) relating to advances years prior to the agreement. Some of the payments were made prior to separation and some were also payments of legal fees. The loan agreement showed a payment made on 28 September 2018 for a operation. There was also another payment specified on 2 October 2018 for the purposes of a mortgage payment. I accept the paternal grandmother expects to be repaid eventually, but I find that she would not require payment until the father was reasonably able to make repayments to her. The father has not been in a position to pay those loans back to his mother.
5. I generally accept her evidence.

1. Ms CC presented as a considered and thoughtful witness whose evidence I found impressive.
2. Ms CC said that when the father speaks about the mother, the nature of the conversation is very "factual" as, according to her, the father talks of the mother in a neutral tone.
3. Ms CC set out details of an incident when she was accosted by the mother and Mr BA in the shops, which evidence I accept. She explained that when attending the shops, she avoids taking the children in order to avoid any further confrontations by the maternal family and their associates. Ms CC is obviously still fearful of further confrontations, stating that she would remove herself from the situation and not engage with the mother if she saw her. The mother appears to have no insight into the impact that her conduct has had on Ms CC. I accept Ms CC's evidence that her reaction to the conduct of the mother and Mr BA was appropriate and that her fears are genuinely held.
4. Ms CC obviously supports the father in parenting the child, and has helped the father to fill out forms for the NDIS. However, she has not attended the child's ASD-related appointments.
5. Ms CC said that she had made inquiries at some schools (including CQ School in Canberra) for the purposes of her own child starting high school next year, as well as X. She explored options in the Australian Capital Territory, which is approximately a one-hour drive from their home in City C. Ms CC indicated that if the children were to be enrolled in a Canberra school, their family would need to move closer. In those circumstances, they would be looking to move to the Suburb CR area or another suburb in central Canberra, but have not yet inspected any properties of interest.
6. I found Ms CC a reliable witness and accept her evidence. I am comfortably satisfied that she is a positive and supportive figure in the child's life.
7. I have no doubt that residing in Canberra has become far more attractive to Ms CC as a result of the mother's conduct towards her. It is reasonable that Ms CC would wish to live somewhere that reduces the risk of further encounters with the mother.

1. Dr CD is the expert psychiatrist and the only expert who gave evidence in these proceedings. He was an insightful and knowledgeable expert witness who produced an extensive and detailed report. I found him to be a very impressive witness and accept his evidence.
2. During cross-examination, the Independent Children's Lawyer endeavoured to gauge the likelihood of the mother's mental health episodes recurring. In February 2019, the mother had experienced a sudden loss of primary care following her mental health episode during cross-examination. In November 2020, the mother suffered another episode, being an "acute stress reaction and also possibly disassociation" following the third tranche of the final hearing (Letter of Instruction dated 8 August 2024 at paragraph 22, as annexed to the Single Expert Report of Dr CD dated 27 January 2025). In his report, Dr CD notes that although the mother has "evidenced a full recovery...these two episodes suggest a vulnerability to future relapses into psychotic symptoms under stress" (at paragraph 790).
3. Dr CD advised that the mother does not necessarily require ongoing medication to reduce the risk of her psychosis, but rather needs to address the personality dysfunction which may been one of the core contributors to her psychotic episodes, saying that the mother uses a lot of denial and has a lack of insight. This means that when the mother comes to moments where she is held accountable (for example, when giving evidence), it is very stressful for her, leading to either coy and submissive reactions or really aggressive and entitled behaviours.
4. Dr CD indicated that psychosis is not a significant risk but if the child is worried about the mother's mental health, then this may present a greater issue. If the mother developed an ongoing psychotic illness which manifested in a risk of neglect and an inability to run usual family routines, this would also pose issues.
5. Dr CD's evidence also recounted "some personality strengths" of the mother, including the fact that she has an altruistic state of mind as it relates to her raising of the child (at paragraph 793). Notwithstanding these strengths, Dr CD reports, notably, that the mother has "over time demonstrated significant personality dysfunction, and this personality dysfunction can often get in the way of the regular, reliable and effective enactment of her personality strengths, in day to day life, particularly in family life and parenting" (at paragraph 794, emphasis in the original). Although it is unlikely that the mother has a personality disorder, her personality dysfunction might be best characterised as "personality immaturity" which shows "poor reflective functioning, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise her own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others" (at paragraph 801). Dr CD reiterated his written position during his oral evidence. He said the mother suffers from personality dysfunction but not to the extent of a personality disorder - the dysfunction occurs on a continuum.
6. During evidence, Dr CD described the mother's behaviour during the interview as "abstracted" or "disconnected", noting that the mother spoke about herself or the child in second person (at paragraph 41). When asked about the child, she spoke about other students in an abstract manner as though the conversation was a general discussion about the issues, as opposed to her own specific experiences.
7. Dr CD noted that there seems to be a gap between the mother's perception of herself, others, certain events and an objective appraisal of such occurrences - based on her views of the father in the past when compared with information in reports and documents (at paragraph 802). Thus, the mother displays a reliance on immature psychological defences to deny the existence of a problem and externalise the issue in a manner that absolves her of criticism, for example, by portraying the father as an angry and unreasonable person (at paragraph 803). Dr CD says this causes a disruption in insight and stunts effective adaptation (at paragraph 803).
8. Dr CD was concerned that the mother's vulnerabilities have disrupted her capacity to meet the child's needs as they have affected her capacity to "step back, and to consider [X's] developmental needs" (at paragraph 763). He highlighted during his oral evidence that at the very core, the mother has not been able to take a step back and think: how is my child doing?
9. The stressors the mother has experienced show a "vicious cycle" of personality dysfunction, loss, conflict and stress, each of which Dr CD says "drives the other" (at paragraphs 797 and 799). This complex melange of problems has ultimately played a role in "precipitating the parenting proceedings...maternal noncompliance with orders" and caused the mother to be "confronted on the stand with her aberrant narrative and behaviour" (at paragraph 799). This has resulted in losses which have exacerbated the mother's distress and likely resulted in personality dysfunction (at paragraph 799).
10. Dr CD said the mother would benefit from therapy, and in particular, to learn about assertive collaboration. He stated that the mother displays different dispositions, being either meek, or when attacked, distorted. Significantly, the mother has not yet demonstrated insight that would necessarily lead her to attend therapy, but that attending therapy would be beneficial for her.
11. Dr CD observed the father to have reasonable and strong personality functioning (at paragraph 809). The father was described as someone who showed "reasonable reflective functioning" and the ability to respond empathetically to others - which is an important trait for effective parenting (at paragraph 811). This position was reiterated during his oral evidence when Dr CD said that the father had a stronger parenting capacity. According to Dr CD, this is a necessary foundation that gives the child the strength and security to enjoy time with the mother and simultaneously be buffered from the weaknesses in her parenting. Additionally, he perceived the father as more balanced in managing the child's distress if an issue of that nature transpires.
12. Dr CD was not uncritical of the father, noting that he has at times also employed "immature interpersonal strategies to resolve issues of challenge or conflict" in relation to parenting and co-parenting (at paragraph 804).
13. Noting that counsel for the mother spent a considerable period of time cross-examining the father about the father's alcohol consumption, it is important to consider Dr CD's view on the matter. Dr CD observed in his report:
    1. The father does not have a current or ongoing substance misuse disorder. He admits to overuse of alcohol in the past, but he appears to have securely moved beyond the same. If the court were concerned about the same, then the issue of substance use could be addressed with three sessions of therapy with a therapist skilled in providing therapy to adults with alcohol use disorder, then any continuing sessions as recommended by that therapist. It is not my impression that the same is required.

...

1. ... He has not in an ongoing way turned to alcohol or drug misuse to manage his personal struggles.

1. An issue raised by the mother at trial was that the father failed to see the child when the father moved to Western Australia in late 2015 or early 2016. The mother also said in her affidavit filed 31 January 2025 (at paragraph 48) that the father "made very little attempts to see [X], as well as did not tell me that he was moving there." Dr CD had said earlier in his report that the narrative that the father showing little interest in the child's life up until February 2019 was "erroneous, and that that mother and [Ms R] would know it to be erroneous" as the father was an "engaged parent prior to parental separation" (at paragraph 686). I also note that these were serious allegations by the mother against the father at this time and that she was not then facilitating regular time. I am not persuaded that the father moving away at that time showed a lack of interest in the child, rather, sufficient insight to attempt to reduce the conflict and possibility of further interaction with the mother and allegations against him.

1. Dr CD highlighted that the child's interactions with Mr BA have thus far been negative in nature and that Mr BA speaks of the father in a negative light. Dr CD's recommendation is that Mr BA not live or stay in the same residence as the child overnight.
2. Dr CD was asked to provide an opinion on the father potentially moving to Canberra to be closer to the schools in the catchment area. Dr CD said that it might benefit the child to be away from the geographical tension of where the breakdown between his parents unfolded. Dr CD said it would make sense for the child to live with his primary carer (the father) and he was confident the father would take into account the best interests of the child when deciding whether to move away from City C to Canberra.
3. Dr CD recommended during cross-examination that the child should spend more time with the father as he has a "stronger parenting capacity". That foundation, he said, will act as a buffer to weaknesses in the mother's parenting capacity and allow the child the strength and security to enjoy his time with her. Dr CD was not satisfied that there was any risk to the child in paternal care (at paragraph 717) nor that there was any significant risk to the child beyond those acceptable on community norms.
4. During his oral evidence, Dr CD noted that if the child were to live with the mother, the child would experience difficulties with the mother's coyness and experience her negativity, unease, fear and suspicion about the paternal family. Significantly, Dr CD said that the mother does not have the capacity to support the child's relationship with the father (in an integrated, adequate way).
5. Dr CD considered whether the child should spend only one weekend every three weeks with the mother and otherwise live with the father, rather than spending fortnightly time with the mother. His recommendations on this aspect of the child's care was summarised in his report as follows:
   1. [X] spend time with the mother which is regular enough to allow maintenance of some connection with the mother, her household and family friends, and some continuity of shared activity and experience, but not so regular as to intrude upon [X's] foundation of being raised in paternal care and in the context of paternal family and friend/ acquaintance connections. An example would be alternate weekends from Friday after school to Monday morning school, and half of each school holiday period.
   2. I would not recommend too many special days where [X] is to spend a portion of time with the other parent, as these often create partisan stress for gains that are more adult-symbolic than child-relevant. They often disrupt the flow of a child's weekend or holiday time with one parent...
   3. Parenting orders be carefully drafted to be quite prescriptive and unequivocal and to require the minimum of parental collaboration/ interpretation, so as to minimise conflict and stress and uncertainty, for example around how the holiday-midpoint changeover is worked out, or which parent has first or second half of each holiday, or how fortnightly cycles restart after each holiday.
6. The risks associated with allowing time with the mother (each alternate weekend compared to one weekend every three weeks) were based upon her potential to undermine the father and the child, primarily by aligning others to her narrative. He stressed that it would be desirable for the mother to spend whole weekends with the child but in a reduced frequency. A greater number of transitions would present additional risk.
7. Dr CD warned against ordering maternal care during school nights as the child requires a solid school week routine in the care of the father. That is, a routine which encourages a stable rhythm of bedtime, drop off and pick-ups.
8. Dr CD cautioned against orders which are based upon any expectation that the mother would change. Rather, his view was that orders establishing an enduring recovery order to address the risk of the child being over-held at the mother's house would be helpful.

1. Part VII of the Family Law Act 1975 (Cth) provides the relevant provisions which govern children's issues. The objects of Part VII of the Act are to ensure that a child's best interests are met. The court may make "such order as it considers proper". However, when exercising this broad power, it is necessary to ensure that the child's best interests are the paramount consideration. Section 60CC(2) provides a list of considerations for determining the best interests of a child.

What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child)

1. In order to properly consider the matters set out in s 60CC(2)(a), it is necessary to consider "any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child's family" (see s 60CC(2A)). The court must also consider the extent that it is possible to do so consistently with the child's best interests being the paramount consideration ensure that the order is consistent with any family violence order; and does not expose a person to an unacceptable risk of family violence (see s 60CG).
2. I am persuaded that the child living with the father best promotes the child's psychological safety and development. I am not persuaded that there is unacceptable risk to the child in the father's care or his household. I am satisfied that there are psychological risks to the child in the mother's care due to her attitude to the father, her behaviours toward the child, and the uncertain role of Mr BA in her household or family constellation.

1. Dr CD (at paragraph 842 of the Single Expert Report dated 27 January 2025) recounts that the child "seeks a "50/50" arrangement, which he considers to be fair, and also this means that he misses each parent equally."
2. I appreciate that the child holds the view that he wishes to divide his time equally between both parents (and this is not surprising given he feels affection and loyalty to both). However, given his age and the potential consequences of equal time, it is necessary, as Dr CD points out, that the child's needs be given more weight than his subjective wishes at the current time.
3. I am persuaded that there is a real risk of the mother undermining the father's parenting of the child if the child were to live on a week-about basis with each parent.
4. The child's views are, however, also important when deciding whether the time with the mother should be fortnightly time, or less.

The developmental, psychological, emotional and cultural needs of the child

1. At the time of this hearing, X was aged 10 years old and entering Year 6 at school.
2. A report dated 14 November 2024, which was provided to the Single Expert, diagnosed the child with high functioning ASD without impairment of language or intellect. Dr CD said that the child's presentation at the interview was consistent with a diagnosis of ASD.
3. Dr CD said in his report:
   1. I have described above my impression that [X] has special needs associated with his diagnosis of Autism Spectrum Disorder (ASD), his experience of high conflict parental separation and exposure to partisan pressures in maternal care, and his development of some domains of behavioural disturbance.
   2. The most important way that [X's] special needs will be addressed will be through sensitive, strong and stable living arrangements and adult care provisions. I have put forth a view in that regard that the father is capable of meeting [X's] special needs, and that this capacity will be protected and enriched by orders that provide him security in role and in self, and provide [X] with a secure foundation of being raised in paternal care, whilst also having regular connection with his mother. The [X]/parent/ family therapy recommended below (involving both parents, separately each with [X] as appropriate) will assist to meet [X's]s special needs, also.

1. Dr CD characterises the child's behavioural difficulties as follows:
   1. Dealing with [X's] behavioural difficulties is important also in the context of conflicted parental separation. It is easy for each parent to be distracted by blaming the other and not to take charge of what is happening on their own watch. It is easy for a clever, verbal child such as [X] to take his frustrations out on each parent, to "play one off against the other" (my words), and avoid being robustly challenged by either. I note that whilst in recent times [X] has been verbally disrespectful of the mother, over time the mother reports (I think likely truthfully) that he has been verbally disrespectful of the father also.
2. Thus, according to Dr CD, the child is in a "very developmentally precarious position" (at paragraph 709) due to his ASD, more so than neurotypical children.

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

1. I am comfortably satisfied that the father is able to meet the child's needs and that he will be ably supported by Ms CC.
2. I am not persuaded that the mother has the capacity to distinguish the child's needs from her own, nor to provide an emotionally stable environment. This is clearly demonstrated by Dr CD's evidence and the mother's past behaviours, such as taking the child to multiple dentists insisting upon x-rays, allowing the child to be exposed to the negative views of Mr BA, and the many allegations that she has made which only serve as a basis for resisting the father's relationship with the child.
3. It is imperative for the child to grow up in a household where he has strong adult support, guidance, boundary-setting and appropriate adult attention to his specific needs. Due to the child's ASD and other factors, it is important I address those circumstances and issues in more detail.

1. It became clear from the child's interviews with Dr CD that he enjoyed time on devices, particularly gaming with friends until late into the night.
2. The mother says the child accesses explicit or pornographic material when in the father's household. There is no evidence, such as browsing history files, to support this claim. If the child has accessed inappropriate materials, I am not persuaded that it was due to a lack of supervision by the father: one must be mindful that children are inquisitive and sometimes access internet materials even when reasonably supervised by parents. Counsel for the father points out that the mother, on one occasion, allowed the child to stay up until 1:00 am.
3. The child has a resistance to screentime limits, and in the maternal care, seems to have no set bedtime routine. For example, the child told Dr CD that "one time he stayed up until 6am...he stopped in the end because his mum got up" (at paragraph 662). The mother also told Dr CD that it can be difficult to get the child off the computer, and that his habits are now firm - supposedly attributing the habit to the father's household. On school nights, the mother says the child is in bed by 9:00 pm but the child says it is likely to be 12:00 am (at paragraph 663).
4. The child recognises that there is a lack of boundary-setting in the mother's household, such that he reported to Dr CD that his mother is "way too soft on [him]" (at paragraph 766). Additionally, it seems that in the father's household, the child is set clearer boundaries such as not being permitted to play certain games but at the mother's house "there are no rules" (at paragraph 489). Dr CD reports that the father and Ms CC are setting clear boundaries in relation to device usage as well as morning and evening routines. This seems consistent with the child's narrative about the father's household.

How does the mother view the child's ASD diagnosis?

1. It is not disputed that the mother holds significant views about the child's diagnosis of Level [...] ASD.
2. The child reported to Dr CD that one of the moments in which he felt hurt by the maternal family was the mother's reaction to his diagnosis of ASD. The report states:
   1. ... The example that [X] gave me was a recent one, that Mum had become extremely angry when Dad wanted to diagnose him with Autism. [X] told me and the mother confirmed at interview that she had also told him that he wouldn't be able to drive, if he got that diagnosis.
   2. My concern here is not the mother's reticence about an ASD diagnosis and its implications (many "typical" parents hold such reticence, and the same is understandable). My concern is that the mother has had an intense angry reaction to paternal behaviour in front of [X], and then has proceeded to create fear in [X] about the implications of his Dad's behaviour, when in my view his Dad was acting in good faith and in collaboration/ discussion with other involved adults and respectfully to [X]. The mother in her angry reaction against the father has lost sight of [X's] emotional needs, and his developmental needs in terms of a properly considered assessment process.

...

1. When I asked the mother about a possible ASD diagnosis in [X], she diverted straight to speak of how everything that "they" do is to undermine "you", meaning herself, and then of the trauma of [X] being taken from her care and placed in a family he knows nothing about, then of how when he lived with the mother she had taught him reading and numbers. These various fragments of her loss and adversity each have validity, but they crowded out the quiet appraisal of [X's] circumstance and needs.

(Emphasis added)

1. The mother told the child he would be unable to acquire his driver's licence if he was diagnosed with ASD. When the mother was asked during cross-examination why she would alert the child to the extreme scenario of being unable to drive, her response was that she was "alerting him to a consequence that will occur by having this diagnosis" (emphasis added). This was unnecessary and unhelpful for the child. The degree of certainty expressed by the mother as to the consequences of being diagnosed with ASD was significant.
2. Counsel for the father asked the mother whether telling the child he would not be able to get his licence was supportive, to which the mother responded, "I am a future planner". The mother's reasoning as to her behaviour was that she had conducted research that seemed to suggest the laws had changed in relation to acquiring a driver's licence. After reading online material (the veracity of which cannot be confirmed), the mother deduced that if the child was diagnosed with ASD, he would not be able to obtain a driver's licence.
3. This is significant in light of circumstances where the child was concerned about his diagnosis and its potential negative impacts and limitations, based on the information his mother had provided to him. For example, Dr CD said in his report:
   1. [X] had been saying to the father, I can't get diagnosed with ASD, and, Mum says if I get diagnosed with ASD, I can't get a driver's licence.
4. During cross-examination, when asked if she was hoping the child would participate in the ASD testing process in a manner which would reduce the chance of a diagnosis, the mother's response was that she "didn't look at it like that, no."
5. It is clear that the mother's distress about the child's ASD diagnosis negatively affected the child's perception of his diagnosis and introduced limitations which are not an inevitable or necessary result of his diagnosis. This is also in keeping with other behaviours which I accept the child has exhibited, and which demonstrate the impact of the mother's behaviour. For example, the child was concerned that a diagnosis of ASD would result in him needing to use a wheelchair. The father's affidavit states that the child said to the father:

[715] ... "My mum said that if I have autism that I would be in a wheelchair and waving my arms around like a retard"

1. The mother disputed this during her evidence and said she did not have this conversation with the child.
2. It was put to the mother that she was not supportive of the child's ASD diagnosis. Her response was that she was not informed of the initial paediatrician appointment, nor the testing conducted, and that she only found out about the child's diagnosis following the release of the report; she says she has not had the opportunity to be supportive.
3. During closing submissions, counsel for the mother made the following concession with regard to the driving issue:

... can I just say something in relation to the driving business and the licence. In my submission, the time and point at which the mother told the child that he may have difficulties getting a licence when he's older, it wasn't the time or the place. In my submission, though you would not find that the mother told [X] that he was going to be retarded or in a wheelchair or only making grunting noises, etcetera, but I do concede that in terms of the driving information.

(Transcript 19 February 2025, p.45 lines 4-9)

1. I have concerns that the child is exposed to psychological harm in the mother's household due to the views held by the mother, maternal grandmother, and Mr BA about the father's household. This is consistent with the evidence in Dr CD's report, which I accept.
2. The child reported to Dr CD that one of the things that the members of the maternal household have said to him that have caused him pain include the manner in which they speak about the father. For example, he says, "[mum] says a lot of bad stuff about dad...and [Mr BA]" and he says that he wants to yell at them because what they say hurts him (at paragraphs 739 and 741). The behaviour has continued despite the child asking the adults to stop. Dr CD reports that this behaviour is causing the child emotional and psychological harm, and is emotionally abusive.

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

1. The father is supportive of an ongoing relationship between the mother and the child.
2. At the hearing, I raised with the parties the possibility of orders for the child to only spend each third weekend with the mother, and heard submissions on this alternative. The father's submissions remained in support of every second weekend, believing he could work with such orders. His submissions in this regard show a focus on the child and maintaining the child's relationship with the mother, where he could have easily changed his position to seek that the mother have less time.

1. I am comfortably satisfied that the child's best interests are served by living with the father.
2. I have reflected for some time on whether the orders for contact between the child and the mother should provide for every third weekend in order to better protect the father and the child from the mother's likely further allegations. However, I am ultimately persuaded by the father's position and the child's desire for time with the mother, that every second weekend should be ordered. If this arrangement cannot be made to work by the mother, less time would need to be considered in the future. It is in the child's interests that he spend half the school holidays with the mother.
3. Given the history of the matter, I am not persuaded that the parties can share parental responsibility in any effective way. It is in the child's interests that the father have sole parental responsibility, but that he consult on major issues with the mother, and for the mother to be able to access information concerning the child's circumstances.
4. The father wishes to have the option of relocating to the Canberra area. It presents a longer travel distance, but one that is realistic for weekend time to continue. Canberra offers a greater distance between the parents compared to both living in a relatively small regional city, minimising the possibility of conflict and unplanned interactions. It also minimises the risk to Ms CC, who now lives with the father and assists in the care of the child: further confrontations initiated by the mother would serve only to undermine Ms CC's confidence in assisting the father in caring for the child within their blended family which includes the children of Ms CC. Of the three possible options: living with the mother, living with the father in City C, and living with the father in Canberra, I am persuaded that the latter is likely the best option for the child, followed by living with the father in City C.
5. I am persuaded that the difficulties in communication between the parents necessitate carefully prescribed orders for contact and information exchange (using a parenting app). The interactions with Mr BA have been entirely unhelpful for the child, and have been distressing for Ms CC. There is no benefit in the child being exposed to Mr BA and injunctions should be put in place to prevent interactions. Whilst I hold concerns about the maternal grandmother's strong views, on balance, I am not ultimately persuaded that the child should be prevented from having contact with his maternal grandmother when in the mother's care.
6. I am persuaded that detailed orders regarding the child's activities are required, largely in the form sought by the father.
7. Given the history of the matter, particularly the behaviours of the mother in the past, I am persuaded that the child's best interests are served by further family therapy. The parties should both be required to engage with the therapist, as directed by the therapist, to assist the child and to assist the parents in their interactions with and support for the child. I am persuaded that the father should choose the therapist and that the therapist should be provided with both the report of Dr CD and this judgment to enable them to have a better understanding of the issues confronting the child.
8. I have been asked to make orders that the mother consult with a clinical psychologist or psychiatrist for so long as the therapist recommends. There are real issues as to the extent of the court's powers to make orders of this type, and the court may only do so as an incident of parenting orders. The orders sought are not conditional upon her reaching any particular milestones in behavioural changes. Whilst I am of the view that psychological therapy could be of great benefit to the mother (provided the therapist is aware of the full details of these proceedings), I am not persuaded that such therapy would be of any use unless the mother chooses to engage in it herself. Whilst I would encourage the mother to engage in therapy, I am not persuaded that orders of this type should be made mandating therapy, beyond orders that the mother be permitted to provide any psychologist or psychiatrist upon whom she attends with copies of Dr CD's report and this judgment.

1. The mother made submissions that the property orders made at the conclusion of the previous trial, which were set aside after successful challenge on appeal by the mother, should now be reinstated. There was no issue that property settlement orders were required and that the orders made had been set aside. The mother argues that the orders which were set aside had been effected and that it is no longer just and equitable to make property settlement orders given the current property interests of the parties.
2. Since the last judgment, the financial circumstances of the parties have changed. For example, the father has had the care of the child without any significant child support and the mother has been working and investing to increase her wealth.
3. The parties provided a joint balance sheet for the purposes of this trial.
4. The assets of the parties are agreed as follows:

Commonwealth AC ...63 BSB ... (Joint account with Ms CC)

Payment made from Applicant to Respondent upon settlement of B Street, City C in April 2023

1. The parties' liabilities are largely agreed, save for two disputes, as follows:

1. The parties' superannuation entitlements are agreed as follows:

1. There are disputes with respect to three assets and the liabilities of the parties, being Items 23, 27 and 32 of the balance sheet.

Item 23 - Addbacks (payment for B Street property)

1. In this case, the payment was made pursuant to the previous property orders that were set aside. To the extent that it has not been spent on living expenses or legal fees by the father, it will be reflected in the current assets of the father. I am not persuaded that this item should be included as an addback, but rather that it is one of the many factors that may be taken into account pursuant to the s 90SF(2) considerations.

1. I am satisfied that the Bank CT debt is a current debt of the mother. It is an incident of her financial position which has, overall, improved since separation. I am not persuaded that in the context of this case the debt should be ignored.

1. The mother's HECS debt was incurred during the relationship for a qualification that enabled her to earn her income. Her income is such that she is making payment on her HECS debt. This debt is debt of the mother and is required to be considered by s 90SM(3)(a)(ii). I accept the mother's figure on the balance sheet as the HECS debt amount.
2. I therefore find that the assets and liabilities of the parties are as follows:

Commonwealth AC ...63 BSB ... (Joint account with Ms CC)

1. It is necessary to deal with the considerations under s 90SM(4) of the Act in property settlement proceedings, including both financial and non-financial contributions.
2. The parties commenced their relationship when in high school and neither came to the relationship with any significant property or savings.

Financial contributions during the relationship

1. As the relationship progressed, both parties worked and made financial contributions to their wealth. However, the parties have been in a fragmented relationship from 2003 to 2015, during which there were periods where they did not share a financial life. The mother made significant non-financial contributions by caring for the child until 2019. The maternal grandmother provided the parties the financial benefit of living with her at her home, the V Street property, enabling the parties to live rent-free.
2. The father's evidence is that whilst in Adelaide, he made the majority of the contributions to the parties' living expenses. He says that because of his financial support, the mother was able to save $33,000 to contribute to the purchase of the property situated at D Street City C NSW [...] ("the [D Street] property"). However, the mother disputes that the father made any contribution to the D Street property. I prefer the father's evidence on this issue.
3. Of the $26,000 paid towards the deposit of the property situated at B Street City C NSW [...] ("the [B Street] property"), the father says he contributed around $13,400 to make the purchase possible. He says that the paternal grandmother contributed an additional $18,700 loan to assist with the purchase, however, this is accounted for in the debts to the paternal grandmother that have been agreed by the parties and listed on the balance sheet, and should not be taken into account twice.
4. It is the father's evidence that he made significant non-financial contributions to the D Street property and the B Street property by way of repair, maintenance and renovations, claiming that he spent about 110 hours on the D Street property. According to the father, the D Street property was then used as leverage and security for the property situated at E Street Town F NSW 2579. The father further claimed that he worked over a year and a half renovating the B Street property, as well as meeting the majority of mortgage repayments, rates and utilities for the property. The mother does not dispute this, accepting that he paid for all the expenses relating to the B Street property apart from $8,000. The mother has made the only contributions towards the property situated at G Street Town H.
5. Both parties obtained qualifications over the years and relied upon family for support.

1. Post-separation, the parties have been able to make significant contributions. The parties both made financial contributions from their employment, however the mother's financial contributions were greater. Leading up to February 2019, the mother was the primary carer of the child. In early 2019, the father took the role of the primary carer, and was responsible for both the emotional and financial needs of the child, which continues to be the case today.
2. Since the child has been in the father's care, the mother has been able to continue improving her financial position, purchasing property. She has contributed to the investment properties in her name.
3. There has been little financial support of the child by the mother.
4. I assess the contributions of the parties as being equal overall.

SECTION 90SF(2) FACTORS

1. In this case, the father will be responsible for the long-term care of the child. The mother, whilst spending some time with the child every alternate weekend, will not bear the bulk of the financial responsibility for the child.
2. The father is currently not in receipt of an income as he is on leave without pay, but ordinarily he will be earning about $155,000 if he were working full-time. I am satisfied that he will return to full-time work after the proceedings conclude. He is able to share his expenses with his current wife, Ms CC. The debt he owes the paternal grandmother will not be called upon until he is in a position to repay it. As a result of the previous property settlement orders he received a payment of $52,426 from the mother.
3. The mother is currently working as an educator and owns four properties, which provide her with a stream of income. She also has the support of the maternal grandmother, with whom she lives rent-free. Counsel for the mother submitted that she is earning about $120,000 per annum together with the surplus of her rentals. There has been no significant child support. I am not confident that there will be regular child support in the future, having regard to the past history.
4. The mother had a financial service business. Her disclosure was clearly inadequate. It is open to the court to draw adverse inferences (see Weir & Weir [1992] FamCA 69; (1993) FLC 92-338). However, on the evidence before the court, I am not persuaded that there is any significant business or income stream. In these circumstances, I am not persuaded that there is a financial service business that justifies any adjustment in the father's favour. At best, it is an alternative for the mother if she does not continue teaching.
5. I note that the child has special needs due to his ASD diagnosis.
6. The costs incurred by the parties over the long course of the legal proceedings are far from clear, even having regard to their most recent costs notices. The father has already paid $494,326.12 for costs in the past. The father has a large debt for legal fees (around $167,560 as estimated in his costs notice). He has been using his income to support himself and the child. However, his large debt to his mother, which reflects the financial difficulties he has faced, is already taken up as a liability on the balance sheet. The mother has paid $505,254.04 in costs. She has costs owing of $181,254.04. She has been able to pay off some of her legal fees during the proceedings, at a time when she was paying minimal contribution to the child.
7. Both parties seem to remain in sound health and there is no evidence that they have any impairment which would preclude them from continuing to work and earn an income.
8. I take into account that there is no superannuation splitting order sought, and superannuation has simply been treated as part of the assets of the parties.
9. An appropriate adjustment to the contributions assessment to reflect these factors is in the order of 5% to 10% in favour of the father.

1. Neither party seeks superannuation splitting orders. At present their superannuation entitlements represent around 58.5% to 41.5% of their combined superannuation in favour of the father (see [124] above).
2. I am comfortably satisfied that the orders sought by the father, which result in him retaining around 54.7% of the total net non-superannuation pool (noting the proportions of the superannuation each party will retain) are just and equitable.
3. The mother will retain assets (less liabilities) of $436,079:

1. The father will retain assets (less liabilities) of $526,660.27:

Commonwealth AC ...63 BSB ... (Joint account with Ms CC)

1. Having regard to the circumstances of the case and the details of the outcome, I am persuaded that orders to reflect such an outcome are just and equitable.
2. I will therefore make parenting and property orders as discussed above.

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.