Morcom & Morcom [2025] FedCFamC2F 502 | Case summary

Morcom & Morcom [2025] FedCFamC2F 502 | Case summary | Zoe

[42]

(a) The Mother's proposal did not change, in that she maintained X should live with her in the Melbourne Metropolitan Area and spend supervised time with the Father for four hours a month (notwithstanding that she conceded during cross-examination that she made that proposal as a forensic decision, and did not in fact believe any amount of time between the Father and X was in X's best interests). As X was due to commence school this year, the Mother proposed that X commence her preparatory year at G School.

(b) The Father's proposal had changed. He said that X should live with him and spend time with the Mother for two hours each fortnight, with such time to be supervised at the City C Children's Contact Centre. He proposed that he be solely responsible for decisions regarding X's welfare, he proposed that X attend H School this year. X had been enrolled at H School, pursuant to consent orders made on 7 August 2024. Although the Father sought final orders, he initially proposed that after a period of two years, the Mother should have liberty to apply for revised parenting orders (presumably on the basis that the Mother would seek medical treatment in the interim, and may therefore be in a position to argue for X to spend increased time with her thereafter). Properly, Counsel for the Father subsequently withdrew that proposal, correctly recognising that the process for seeking new parenting orders is governed by section 65DAAA of the Family Law Act 1975 (Cth) ("the Act"), and I have no power to gainsay or vary the operation of that section.

(c) The Independent Children's Lawyer's position had likewise changed, and again largely mirrored the Father's, save in one respect. The Independent Children's Lawyer proposed that X should only spend time with the Mother four times per year, at the City C Children's Contact Centre, and that these should be final orders (which the Independent Children's Lawyer acknowledged would effectively end any prospect of a meaningful relationship between X and the Mother). Counsel for the Father emphasised that the Father did not support this more restrictive position, and still held hopes for X being able to have a relationship with the Mother.

[43]

The Mother's position is based on her assertion that the Father is a risk to X. She alleges a significant history of family violence perpetrated against her by the Father, to which the Mother says X was exposed. The Mother regards herself as a long-term victim of extreme and escalating family violence at the Father's hands, and says she was "tortured" by the Father (in relation to an incident in early December 2022) and then that (in late December 2022) the Father "abducted" her and X in circumstances the Mother says made her fear for her life.
The Mother argues she has been unfairly maligned by various authorities during her efforts to seek assistance, as in all but one report the Mother says she has been mistakenly identified as a perpetrator of family violence against the Father (in relation to a second incident, Victoria Police revised their identification of the Mother as the perpetrator, and now identify her as the affected family member, although I have reached a different conclusion, and I discuss this later). The Mother says the Victorian Department of Families, Fairness and Housing ("DFFH") have unfairly characterised her as a person who engaged in "service shopping" and incorrectly labelled her a "systems abuser".
The Mother points to her allegations that X returns from spending time with the Father with bruising, scratches, cuts or burns, which would be concerning if substantiated. The Mother says that upon returning from spending time with the Father, X cries, screams, and does not want to be touched. In a challenging allegation to assess, the Mother says that X makes disclosures of particular concern, saying "Daddy takes naked photos of me" and "Daddy hit me". Although Counsel for the Mother repeatedly and unambiguously told the Court the Mother does not consider the Father to be a paedophile nor someone with any interest in child sexual abuse material, the Mother's evidence and general presentation appeared at odds with that submission.
The Mother's heightened view of the risks posed by the Father renders her incapable of contemplating that X could be safe in the Father's care, or that there could be any positive benefit to X from an ongoing relationship with the Father. The Mother suggests that her experience of family violence at the hands of the Father has "traumatised" her life, and that the Father's actions towards her and X were "scary and inhumane". She styles herself and X as "victim-survivors", and did not resile from the position stated in her affidavit that "If [Mr Morcom] continues to be part of [X] [sic] life, it would ruin her further".
The Father for his part acknowledges that the parents had a toxic relationship, in which both parents perpetrated family violence against the other. He denies the serious allegations of family violence made by the Mother, which I shall come to. Instead, the Father acknowledges situational family violence arising from an unhappy and highly stressful relationship during which the Mother exhibited serious and concerning personality disturbance and suicidal ideation. The Father alleges he too has been the victim of family violence perpetrated by the Mother, including controlling behaviour designed to isolate him from his family and deprive him of the opportunity to nurture a relationship between X and the Paternal Grandmothers (one of whom is the Father's biological mother and the other being a step-mother, who are a married same-sex couple).
The Father and the Independent Children's Lawyer are concerned that (what they allege to be) the bizarre and escalating nature of the allegations made by the Mother about the Father present psychological and emotional risks to X. Primarily, their concerns have focused on X being exposed to a false narrative regarding her safety in the Father's care (although as discussed below I consider there are additional risks that require further investigation). The Father is concerned that if this situation continues or even worsens, X will feel impelled not only to reject the Father, but to do so in circumstances where he is falsely demonised to her. The Father also raises several additional matters regarding the Mother's capacity to adequately attend to X's medical needs in circumstances where X presents as a child with some special needs, including requirements for speech therapy and occupational therapy, and a requirement for further investigation into a possible diagnosis of Autism Spectrum Disorder.
X's circumstances are therefore troubling. For reasons I shall come to, I do not accept that the Father has perpetrated the serious acts of family violence the Mother alleges (although I take note of his admission to having committed family violence at a markedly lower level of severity throughout the relationship). It is challenging to ascertain whether the Mother has been deliberately untruthful in her accusations against the Father, or whether she has created a false narrative which she now accepts. Associate Professor B, (who for ease of reference I shall refer to as "Dr B", with no disrespect intended) the single expert appointed to conduct psychiatric assessments of each of the parents said:-

[50]

I shall now turn to a more detailed history and narrative of these proceedings and the events leading up to them in order to assess the complex issues present in this case. It is necessary to examine each parent's personal histories and the history of their relationship both before and after separation.
In these reasons, and pursuant to section 140 of the Evidence Act 1995 (Cth), the standard of proof is to the balance of probabilities. During the hearing, there were numerous facts and matters referred to by the parties. It is not possible to refer to every fact and/or matter in these proceedings, nor is it necessary to do so. I have had regard to the totality of the evidence in these proceedings. If I have not referred to a particular fact or matter, it does not follow that I have not had regard to it.
As is evident from the introductory description above, very grave accusations have been made in this case. While that does not alter the requirement that facts be proved to the balance of probabilities, it does mean that I must be mindful of what is sometimes referred to as the 'Briginshaw Test'. In the case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ("Briginshaw"), the High Court emphasised that it is not enough for a trial judge simply to feel that one account is more probable than the other, the trial judge must be actually persuaded of the allegations made. His Honour Rich J referred to the need for the trial judge to be "reasonably satisfied" that the allegations were correct, and have a "definite and clear opinion of the truth of the charge" (at 351).
There is a real tension between needing to adhere to a balance of probabilities standard and needing to ensure that serious adverse findings are supported by appropriate evidence. I approach the grave accusations the Mother makes against the Father with caution, and any finding I make that the Father committed the acts the Mother alleges should have evidentiary support commensurate to the severity of the allegation. The same applies in reverse, for the Father and the Independent Children's Lawyer have presented cases founded on an assertion that the Mother has engaged in systems abuse and is suffering from a psychiatric/ psychological illness of some kind. Those are also serious findings, with real consequences for the Mother's ability to access various protective systems in the future because she will have been branded unreliable by this Court.
The Full Court has recently emphasised the need for caution in making family violence findings and in assuming that particular parties are or are not at fault. In Pickford & Pickford [2024] FedCFamC1A 249 ("Pickford"), Their Honours Austin & Wilson JJ said:-

[53]

The Father was born in Australia, and is 37 years old and lives in Suburb F, a suburb of City C. His biological mother subsequently repartnered into a same-sex relationship, with both partners serving a parental role for the Father. Accordingly, these reasons refer to the Paternal Grandmothers when discussing the Father's extended family. The Father describes himself as self-employed (although in reality he is employed by a company as a contractor) involved in the provision of online adult entertainment services working flexible full-time hours from home, and earns approximately $180,000 per annum. The Father's employment is relevant in that one of the Mother's stated concerns for X is "because child pornography is involved in his [the Father's] work".
The Mother was born in Country K and is 35 years old. In pursuit of a previous relationship, the Mother travelled to live in Australia in 2015, but that relationship ceased in mid-2016. The Mother became an Australian citizen in late 2023. She is pursuing her studies in allied health (although in evidence she said she is not currently studying), having previously embarked on a course in education. The Mother runs her own small business which is a children's entertainment business. The Mother told me she earns around $20,000 per annum from this endeavour. In addition to her work in her small business, the Mother also engages in modelling. This becomes particularly relevant because (as I will discuss below), in late 2024 the Mother left X in the Father's care for around two to three weeks while she travelled to Europe to model. The Mother stated she was paid around $4,000 for that modelling work.
The parents met via an online dating application in 2017. They commenced living together in mid-2017 and married in 2019. Their relationship and marriage produced X, who was born in 2019.
As I have alluded to, it seems that the parents' relationship was tumultuous and toxic. The Mother alleges that at some point in 2017, the Father pushed her on the bed when he was annoyed with her, and would attempt to exert control by telling her what to wear to events. The Father denies both allegations.
Also at some point in 2017, the Mother alleges that during a camping trip with the Paternal Grandmothers, the Mother and Father argued while sitting on the bed, and placed his hand on her forehead and pushed her head down on the bed.
The Father alleges that in 2018, the Mother attempted to commit suicide by jumping off a highrise balcony, and says he needed to physically restrain her, during which struggle the Mother bumped her head on a barstool. The Mother denies a suicide attempt (although admits to attempting to open the locked balcony door), and says the Father grabbed her and threw her across the room, leading to her head injury. The Mother further alleges that the Father then grabbed her by the shoulders and said "Do you want me to throw you out myself". This is one of the key events referred to under the heading of the 2018 Balcony Incident.
As I have said, there were a number of incidents alleged by the Mother upon which there was no cross-examination. Prior to the breakdown of the marriage those incidents are as follows:-

[54]

(a) The Mother alleges that, during 2019 (while she was pregnant with X), the Father escalated verbal abuse, calling her "worthless", and on one occasion coerced her to stay late at an event, notwithstanding that she was tired and feeling unwell. These allegations were not put to the Father, but in general he denied engaging in coercive control of the Mother.

(b) During June 2019, the Mother alleges that she and the Father had an argument, which the Mother says followed the Father discovering she had called one of the Paternal Grandmothers to ask about help in managing what she alleges to have been the Father's behaviour. The Mother characterised this as the Paternal Grandmother having betrayed her, as she had thought the conversation was private. The Mother alleges that during the argument the Father began to slap the Mother repeatedly across the face with both hands. The Mother concedes there were no bruises or marks left during this alleged incident, but asserts that was due to her blocking the strikes with her hands. This incident was not put to the Father.

(c) In April 2020, the Mother alleges that a "family meeting" with the Father and the Paternal Grandmothers degenerated in an argument which "caused [her] to fear that they would be emotionally abusive towards [her] again." The Mother further alleges that in the aftermath, she begged the Father to protect her from the Paternal Grandmothers, to which he replied "you're not gonna stop are you?", before grabbing her head and shoving her face into the mattress. This incident was not put to the Father.

(d) In June 2020, the Mother alleges the Father said to her "do you want me to slap your face" after she made a minor mistake. This incident was also not put to the Father.

(e) In July 2020, the Mother alleges the Father slammed her face into the bed repeatedly. This incident was also not put to the Father.

(f) Between October 2020 and June 2022, the Mother alleges the Father engaged in coercive control through financial abuse, denying her access to her own bank account. This allegation was not put to the Father.

(g) On 21 December 2020, the Mother alleges the Father told her, "my psychologist and your psychologist don't want to see you anymore". This allegation was not put to the Father.

(h) In January 2021, the Mother makes non-specific allegations that the Father "said various things" that made her doubt herself, and "implied she had a mental illness". The Mother alleges this was a form of coercive control. This specific incident also was not put to the Father, although he denied engaging in coercive control generally.

(i) On 10 February 2021, the Mother alleges the Father threatened to "tell... everything" to the facilitator of the Caring Dads Program the Father was completing at that time. The Mother did not explain during the trial what the content of this threat signified. This incident also was not put to the Father.

(j) On 11 March 2021, the Mother alleges the Father told her "you have a serious mental problem", and downplayed his alleged family violence. This incident was not put to the Father.

(k) On 13 March 2021, the Mother alleges the Father pushed her to the bed during an argument. This incident was not put to the Father.

(l) On 2 April 2021, the Mother alleges the Father dislocated X's arm. This incident was not put to the Father.

(m) On 26 April 2021, the Mother alleges that during an argument the Father again said she had mental issues and needed help, and that he would "bring [her] down". This incident was not put to the Father.

(n) On 29 November 2021, the Mother alleges that the Father told her she had 19 hours to accept that she was "lower" than him, they would never be equal, and that she needed to obey him. This incident was not put to the Father.

[64]

On 18 June 2022, the Mother says M Service organised crisis accommodation for her and for X for a week, after which the Mother and X stayed with a friend for a further week, before returning to the former matrimonial home. From context, I infer that the Mother unilaterally took X and left. In cross-examination, the Father said of this incident "She left under the false pretences of domestic violence and claiming that I was controlling".
I pause in this chronology to note that, regarding the 18 June 2022 incident of the Mother unilaterally taking X, Counsel for the Mother conceded that she "had left partly because she was upset about [the Father's] parents". That suggests that the Mother's actions on 18 June 2022 were as much retaliatory as they were driven by safety concerns.
Following separation but before physical separation were a number of incidents alleged by the Mother upon which there was no cross-examination. One incident is as follows. On or around 2 July 2022, the Mother alleges she noticed files being deleted from her laptop, and says that she assumed this was done by the Father. The Mother alleges that this triggered an argument, in response to which the Father unilaterally left with X. The Mother says she called Victoria Police, who declined to take action because there were no parenting orders in effect, and the Father stayed with X at the Paternal Grandmother's house for 3 days. This incident was not put to the Father.
In November 2022, the Mother alleges that the Father sexually assaulted her while she was unconscious from a (self-administered) Panadol overdose. The Father denied this. I discuss this incident in detail below and it is one of the key events referred to under the heading of the November 2022 Overdose and Alleged Rape.
In early December 2022, there was an incident between the parents that I discuss in detail below. In summary, the Mother alleges that the Father attempted to kill her with a hammer, and the Father alleges that he and the Mother had an argument which resulted in her attacking him when he tried to walk away. Both parents called the police, who (with considerable uncertainty) concluded that the Mother was the aggressor (although that conclusion was later reversed on review). Following this incident, Victoria Police applied for an Intervention Order on the Father's behalf, naming the Mother as the respondent. The Mother made a cross-application for an Intervention Order on her own behalf, naming the Father as the respondent. This is one of the key events referred to under the heading of the early December 2022 incident.
On or around 13 December 2022, the parties physically separated and the Mother left the former matrimonial home after cross-Intervention Orders were made in each party's favour by the Magistrates' Court of Victoria. At this time, X was three years old.
From the time of separation under one roof until physical separation on 13 December 2022, the parents had shared the care of X. From 13 December 2022 until 26 December 2022, X was in the Father's care.
In late December 2022, the parents organised for X to spend time with the Mother at J Venue, despite the cross-Intervention Orders. I deal with this incident in detail below, but in summary the Father alleges he gave the Mother a lift back to her accommodation, collecting a parcel along the way, but as they drove, she become aggressive and he pulled over while they had a heightened argument. The Mother alleges the Father coerced her to accept a lift to her accommodation, then began speeding and driving erratically in a murder/ suicide attempt until finally he pulled over. It is agreed that once the car pulled over, other motorists intervened in their argument, and the police were called. This is one of the key events referred to under the heading of the late December 2022 J Venue Incident.
On 26 December 2022, the parents met at the City C Police Station, and through an unclear sequence of events, the Mother left with X. After this, X did not spend any time with the Father until Court orders were made on 14 February 2023.
On 13 January 2023, the Father initiated these proceedings, seeking interim orders for X to live with him and for an urgent Recovery Order, in light of the Mother's refusal to return X to his care.
On 23 January 2023, the matter came before a Judicial Registrar for first return. Orders were made (among other things) for:-

[68]

By the 14 February 2023 hearing, the Father had also filed an Amended Application for Final Orders seeking property adjustment.
On 19 February 2023, DFFH provided a further response, which was released to the parties by a Judicial Registrar on 21 February 2023.
On 20 March 2023, the matter came before a Judicial Registrar, and procedural orders were made.
In April 2023, the Mother made a statement to Victoria Police, setting out what she alleged to be the history of family violence in the relationship to that point. The Mother's statement was tendered in full as Exhibit M23.
On 30 May 2023, the Child Impact Report dated 23 May 2023 was released to the parties. In the context of the preparation of that report, X was observed to have a good relationship with each of her parents, with little difference in X's interaction with each parent observed. X was observed to separate easily from each of her parents, with the only concern (by the Father), being that she was adjusting to spending time with her parents in different households.
On 31 May 2023, the matter came before a Judicial Registrar, and orders were made (among other things) transferring the proceedings to the Ballarat Circuit List. Also, by consent, orders were made for the Mother's psychologist, Ms N, to prepare and file a report on the Mother's attendance, progress and diagnosis (if any).
On 28 June 2023, the matter came before a Senior Judicial Registrar, and procedural and property-related orders were made. A spousal maintenance application by the Mother was also adjourned at that time to August 2023.
On 30 August 2023, the matter came before a Senior Judicial Registrar, and final property orders were made by consent, pursuant to which the Mother received payments of $149,500 with respect to property adjustment, and $10,000 as capitalised spousal maintenance. Those sums have been paid. Orders were also made by consent in the parenting proceedings for the matter to be listed for a Compliance and Readiness Hearing.
On 11 December 2023, the matter came before me for Compliance and Readiness Hearing, and the matter was listed for final hearing commencing 30 July 2024. An order was also made for a Family Report to be prepared, and DFFH was requested to file a further report.
In early 2024, the initial criminal proceedings against the Father regarding the late 2020 incident finalised. As noted above, the Father entered a plea of guilty to one charge of common assault. Initially, a conviction was recorded and the Father received a community corrections order. He subsequently appealed, and the conviction was struck out with the Father instead placed on a good behaviour bond.
After the conclusion of the Father's criminal proceedings, the Father alleges that X began making disclosures to him such as "mum scary", "want to stay with you Daddy" and "don't want to go to Mum". These disclosures were not raised with the Mother in cross-examination, nor was it put to the Father in cross-examination that he had fabricated them.
On 23 April 2024, the Family Report dated 19 April 2024 by Ms P ("the Family Report Writer") was released to the parties. I discuss the Family Report in more detail later, but in summary the Family Report Writer observed X to have a close relationship with each parent.
On 17 May 2024, the Mother's solicitors filed a Notice of Ceasing to Act. At various times throughout the final hearing, Counsel for the Father and Counsel for the Independent Children's Lawyer emphasised that the Mother has been represented by a number of legal firms in these proceedings, with an implication of some unspecified wrong-doing on the Mother's part. I have not been told, nor have I enquired as to, the reasons for those changes in legal representation, and I have not drawn any inference from changes in legal representation in making my decision in this matter. To make any such inference would require that I attempt to look behind the veil of legal privilege, which I will not do. Likewise, drawing an adverse inference would mean allowing Counsel for the Father and for the Independent Children's Lawyer to engage in trial by innuendo.
On 30 May 2024, the matter came before me, as the Mother was no longer legally represented. The Father's previous criminal charges, his guilty plea to a charge of common assault upon the Mother, and the existence of final Intervention Orders with respect to each parent as affected family member and respondent respectively, meant that the provisions of section 102NA of the Act applied on a mandatory basis, prohibiting the Mother from cross-examining the Father in person. I made a notation to that effect, enabling the Mother to seek a funding via Victoria Legal Aid pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The matter otherwise remained listed for final hearing commencing 30 July 2024.
On 30 July 2024, the matter came before me, and was adjourned for mention to 2 August 2024, as Counsel for the Mother needed to seek advice on a potential ethical conflict. I have not been told, nor have I enquired, as to the nature of that conflict. I have not drawn any inferences about that conflict, and it has not formed any part of my consideration for this decision.
On 2 August 2024, the matter came before me and was adjourned for further mention to 7 August 2024.
On 7 August 2024, the matter came before me via Microsoft Teams, and orders were made for:-

[70]

On 16 December 2024, the matter came before me for final hearing, listed for five days. At the close of evidence on the fifth day of trial, it became clear there was not sufficient time for closing addresses. Accordingly, the final hearing was adjourned part-heard to the first available date in the new year (being 13 January 2025), with directions that the parties and their legal practitioners attend via video link. Relevantly, on that day, X was in the Mother's care.
On 13 January 2025, shortly after the Independent Children's Lawyer began her closing address (her Counsel being unavailable due to illness), the Mother left the video call. Closing addresses were paused but Court remained in session while Counsel for the Mother endeavoured to contact her client. Counsel for the Mother was unable to do so, and Court adjourned while further efforts to contact the Mother were made. I indicated to Counsel for the Mother that if her client could not be contacted, the matter would need to proceed in person the following day, and at a minimum I would need to order that X be brought to the Court and placed in the Court's child-minding centre pending any orders made following closing addresses. Eventually, the Mother rejoined the video link, but refused to turn on her camera, despite being directed to do so.
Where a hearing proceeds via video link, I consider it essential that I be able to see the parties. Partly, this serves an evidentiary purpose, enabling me to see the parties' reactions to submissions and evidence. However, and saliently for this case, it also enables me to assure myself that any subject children are not present during the hearing. The Mother's refusal to turn on her camera on a day when X was in her care therefore impeded my ability to ensure Court rules were being properly observed. As a result, I made orders that the matter proceed in person in Melbourne the very next day. I gave leave to the Father to appear via Microsoft Teams as he resides in City C and he had been compliant with directions for his camera to remain on.
At the same time, I considered it necessary to take steps to ensure X's safety. I will discuss my assessment of the parties in greater detail below, but in summary the circumstances of the case, suggested a possibility of physical as well as psychological risks to X, as the Mother had presented as very unwell. I was concerned that upon the Mother hearing the final addresses, particularly the final position of the Independent Children's Lawyer, that she would be naturally heightened, distressed and aggrieved by what for her would be an incomprehensible result. I made orders that:-

[85]

Ms E's 19 December 2022 letter then lists at a general level types of family violence the Mother identified the Father as having committed in the relationship. Some of those are recognised categories of family violence, including "Using physical abuse" and "Using isolations" (although many of the allegations lack specificity). Other headings of alleged family violence in that letter are "Using male privilege". Asserting a category of violence such as "Using male privilege" is necessarily a conclusion of who perpetrates family violence in a particular situation, and which categories of persons are even capable of engaging in that form of violence. While a Court must be aware of the gendered social structures to affect the manifestation and consequences of family violence, the Court cannot extend that awareness into a presumption of the facts of alleged family violence in any particular case.
The 19 December 2022 letter records that on 17 September 2022, the Mother gave Ms E a 27 page chronology of alleged family violence perpetrated by the Father, which included "Repeatedly coercing [Ms Morcom] to have sex when she did not want to" and "Raping [Ms Morcom] on 3 occasions when she had clearly asked him to stop touching her". That timing is significant, because the Mother alleged at trial that she had again been raped by the Father in November 2022, and a key part of Counsel for the Father's challenge to that allegation was that it appeared only to emerge in February 2023 when the Mother was preparing an affidavit for proceedings in this Court. It is evident that the Mother made a prior complaint to Ms E.
Ms E did not attach the chronology, but summarised it, with events said to start in 2017 with pushing and dictating what the Mother wore to events. Broadly, I would characterise the events described as a narrative of escalating coercive control. Specific rape allegations are made for 17 February 2021, 6 September 2021, and an unknown date in December 2021 (when X was said to be in the room at the time). The narrative contains numerous allegations of the Father attempting to undermine the Mother's psychological health and self-confidence by repeatedly telling her she was mentally ill and threatening to say the same to others.
Ms E summarised her counselling interventions in response to the Mother's alleged experiences of family violence by saying:-

[93]

- locked her in a closet talking about the unlawful detention and being imprisoned

- [Mr Morcom] said she was 'crazy' and mentally 'unstable' and that he 'needed her to die' so he could have full custody of [X]. She said she feared for her life. She reported that [X] was present, crying and hitting [Mr Morcom]'s leg trying to get him to let [Ms Morcom] out of the closet.

- [Mr Morcom] threatened her with a hammer when she opened the balcony door to try to get help.

- how he had tried to strangle and suffocate her by using his right arm across her throat and covered her nose with his left hand. She said he was humming a lullaby while doing this, interspersed with laughter.

- [Mr Morcom] blamed her when [X] was hungry and refused to give them both food stating he wanted her phone password and they weren't getting food until she supplied it. He also said it was her fault [X] was hungry because [Ms Morcom] wouldn't do what he wanted.

- whenever [Ms Morcom] tried to get out [Mr Morcom] would poke different parts of her body, including her vagina to push her back.

- [Mr Morcom] repeatedly told [X] that Mummy and Daddy were playing.

- pushed [Ms Morcom]'s head to the floor, holding it down. She was scared he was going to break her skull. It was so painful she gave him her password and he deleted the recorded evidence of his abuse.

- while she was lying on the floor, exhausted, [Mr Morcom] kicked her in the stomach and told her to get up and clean up milk that had been spilt on the floor.

- [Ms Morcom] finally got her phone and called 000. [Mr Morcom] also called and acted like the victim, telling the Police that [Ms Morcom] was mentally unstable and had tried to overdose recently. This was not true and after [Mr Morcom]'s allegations [Ms Morcom] went to her GP and had a blood test to prove she was within normal limits of pain relief after taking painkillers for period pain.

- Due to [Mr Morcom]'s exaggeration the Police took [Ms Morcom] to the Police Station where they took an IVO against her.

- [Ms Morcom] attended her GP [Dr V] from [W Medical Clinic], on [the following day] and the details of the incident along with her bruises and scratches were documented.

[102]

Ms E was duly sworn, and affirmed her affidavit. She was an honest witness, giving her earnest account of counselling sessions with the Mother.
Counsel for the Father asked Ms E about her comments regarding the Father having been convicted of assault, which Ms E in her letters took as evidence that the Mother's account of the early December 2022 incident was accurate. Ms E confirmed that, in writing those letters, she was under the impression that the conviction related to the early December 2022 incident. As noted above, that is not the case, and the Father has not been charged at any point in relation to the late early December 2022 incident.
Ms E was advised that the Mother left X with the Father when travelling to Europe for her work. Ms E found this disclosure challenging. It is clear Ms E accepted the Mother's narrative without engaging critical assessment of whether various of the Mother's admitted actions were consistent with the Mother's claims. It also suggests the three week period X spent with the Father was successful even in the Mother's eyes, and that the Father is capable of providing full-time care for X, and the Mother recognises this.
Ms E criticised a child protection worker for wanting to discuss the Mother's poor mental health, which (in the opinion of Ms E) indicated "no understanding of her symptoms of PTSD" (see letter dated 5 December 2025 of DFFH). This was not based on information reported by the Mother. Rather, Ms E had attended two care team meetings involving child protection, and had heard the relevant child protection worker directly at those meetings.
Ms E then further confirmed that she had met X during a session when the Mother brought X to see Ms E without warning. The Mother apparently told Ms E she wanted Ms E to "just see what her interaction with [X] was like, and what [X]'s interaction with her was like." Ms E stated that the context for this was that the Mother was worried by how child protection was interpreting her interactions with X. Ms E told the Mother that she "could not make a judgment call, for want of a better word, about what their relationship was like, on the basis of a session like that." This was appropriate and proper by Ms E, to decline to be drawn into disputes about the Mother-daughter relationship, notwithstanding Ms E's unusually close involvement in other aspects of the proceedings.
The degree to which the Mother has involved Ms E in these proceedings by providing her with Court materials and asking her to see X and evaluate the Mother-daughter relationship, as well as involving Ms E in meetings with child protection, suggest to me that the Mother has sought to manipulate Ms E and recruit her as an ally and useful forensic resource. The Mother has been selective in the information she has provided to Ms E, and has not presented all key facts.
Ms E was also cross-examined by Counsel for the Independent Children's Lawyer. The evidence of Ms E is informative but ultimately not useful as to the assessment of key facts given her clear acceptance of the Mother's version of events without critical analysis. What is more interesting is that she is a kind and caring counsellor with whom the Mother has engaged with over a relatively long time. I am not critical of her for failing to challenge the Mother as she did not see that as her role, and challenging factual narratives would not accord with a counselling relationship. Her involvement does accord with what I assess to be the Mother's tendency to seek out and engage those who will accept her false narrative.

[106]

21. [Mr Morcom] recalled meeting [Ms Morcom] on a dating app [in] 2017 and they commenced living together approximately five months after meeting.

22. [Mr Morcom] recalled they separated under the same roof in June 2022. [Mr Morcom] reported there was a family violence incident in December 2022 and that police initiated an IVO protecting him and [X] and that [X] was left in his care. [Mr Morcom] reported that he had restrained [Ms Morcom] and accepted he should not have done so, but he denied imprisoning her for five hours or torturing her as she had alleged. [Mr Morcom] reported that both he and [Ms Morcom] breached the IVO [in late] December 2022 by agreement between them.

23. [Mr Morcom] repeated information that he provided at the CIR assessment. That is, that during the Covid lockdowns [Ms Morcom] was socially isolating him that is, from his parents and that she wanted him to choose between her and his parents. [Mr Morcom] reportedly chose [Ms Morcom], but he believes that his choice ultimately led to the breakdown of their relationship because they continued to argue about it. [Mr Morcom] reported that [Mr Morcom] greatly exaggerates and fabricates what happened during pats [sic] arguments. For example, he reported that in 2020 he was "trying to reason with her" about her cutting off his parents when he had her phone because she was threatening to call police and he was in the position of not knowing what to do. [Mr Morcom] spoke about [Ms Morcom] making threats to take [X] to [Country K] which frightened him that he would not see [X] again.

24. [Mr Morcom] reported that he wishes to focus on [X] and on coparenting with [Ms Morcom].

[Ms Morcom]

25. [Ms Morcom] was neatly stylishly attired and appeared to have taken care with her appearance. She was forthcoming but appeared largely negatively focussed on [Mr Morcom]. She spoke at length about their history and the alleged serious abuse of her to the extent she did not provide much descriptive information about [X].

[111]

Identification of risk

Risk of Family Violence

34. [Ms Morcom] reported a pattern of primarily emotional but some physical family violence towards her from [Mr Morcom] that included some serious behaviours such as being held against her will for several hours and threatened with a hammer. [Ms Morcom] reported that the violence escalated from being pushed out of the bed when she had argued with [Mr Morcom] early in the relationship before [X] was born. [Ms Morcom] reported that [Mr Morcom] dismissed her feelings and concerns. [Ms Morcom] reported that she excused [Mr Morcom]'s behaviours thinking that he was having a bad day sometimes. [Ms Morcom] reported that the family violence worsened when she was pregnant and that [Mr Morcom] slapped her across the face, and that she wanted to and attempted to leave the relationship. [Ms Morcom] alleged that [Mr Morcom] slapped her she was upset that his mother was coming to visit and had been saying negative things about [Ms Morcom]. [Ms Morcom] reported being shocked and not really knowing how to get help.

35. [Ms Morcom] reported that [Mr Morcom]'s family ridiculed her when she was pregnant because her face looked bloated. She reportedly felt unable to leave because she had nowhere to go and was on a partner Visa. [Ms Morcom] did not make specific allegations about family violence based on cultural factors. Because she was so focussed on providing multiple details about [Mr Morcom]'s alleged physical violence towards her there was little attention possible for any cultural issues.

36. [Ms Morcom] reported that [Mr Morcom] attempted to murder her in December 2022, but that police could not charge [Mr Morcom] with murder because they could not find the hammer. [Ms Morcom] said words to the effect that she was tortured on that day, and she had been locked in a cupboard. [Ms Morcom] reported that [Mr Morcom] was charged with assault instead. The criminal matter was reportedly heard [in early] 2024.

37. [Ms Morcom] alleged that [Mr Morcom] had used strangulation on her "a few times" including [in early] December 2023 [sic] but she could not recall the other times. [Ms Morcom] reported that [Mr Morcom] sexually assaulted her and that she has reported to police [sic]. She gave no detail apart from that [Mr Morcom] did not care that [X] was present and when she objected he would put [X] outside the door, and she would be knocking, banging on the door and crying to come in. [Ms Morcom] said that [X] was approximately one or two years old when that happened. [Ms Morcom] reported that she did not want to have sex but felt she could not say "no" because of the physical violence if she objected.

38. [Ms Morcom] reported that [Mr Morcom] would go with her to the doctors so she could not report her concerns about him there.

[118]

69. [X]'s parents agreed that she has experienced conflict between them and some incidents of physical and verbal altercations.

70. [X] appeared to be at or below expected maturity in so far as she would not talk while with her father but was very animated and talkative with [Ms Morcom]. [X] was not interviewed and therefore her wishes were not provided.

71. If [Mr Morcom]'s proposal is implemented the writer considers it likely that [X] would come under pressure from [Ms Morcom] to reject [Mr Morcom] completely. Although [Ms Morcom] had responded appropriately to [X] about [Mr Morcom] during the observation, [Ms Morcom] emphasised [X] being safe in her father's care but was rigid about that needing to be his supervised care despite that the Court made the present Orders while a criminal matter was on foot. The pressure from [Ms Morcom] may not be overt. However, [Ms Morcom]'s presentation was consistent with being so negatively focussed [sic] on [Mr Morcom] that she failed to be present to the tasks before her, which in this assessment, was initially to focus on describing [X]. While [Ms Morcom] presented as convinced her concerns are for [X]'s safety, consideration should be given to whether [Ms Morcom]'s allegations about [Mr Morcom]'s level of violence towards her is [sic] plausible. The subpoenaed collateral information and recent criminal hearing does not seem to support [Ms Morcom]'s conviction.

72. There would be concerns for [X] about how [Ms Morcom]'s conviction about [Mr Morcom] would impact her development of a relationship with him. [Ms Morcom]'s beliefs may negatively impact the parenting relationship [Mr Morcom] has with [X] and if [X] experiences stress about the conflict between her parents, negatively impact the developmental tasks she is progressing towards and will engage with more fully when she commences in Foundation Year in 2025.

73. [Mr Morcom] appeared loathe to make negative comment about [Ms Morcom]. He impressed as having acted early to undertake learning that would support his parenting decisions to ensure [X]'s safety. [Ms Morcom] has admitted to using violence on one occasion towards [Ms Morcom] in 2020. Whether that was a strategic admission and led to minimisation of later alleged significant abuse is a question that the criminal jurisdiction appears not to have prosecuted.

74. [Mr Morcom] had also outlined in his affidavits and somewhat at interview, a progression of verbal Family Violence and controlling behaviours, particularly social isolation, from [Ms Morcom] towards him. [Mr Morcom] had reportedly been fearful of losing the relationship with [Ms Morcom] and therefore contact with [X]. Whether his focus on [Ms Morcom] as presenting as obsessional does not appear to have been the case. [Dr B] did not identify [Mr Morcom] as presenting as obsessional nor did he present as such about [Ms Morcom] at the Family Report interview. It appeared that [Mr Morcom] wished to have an intact family for [X] which had been something he lost in his childhood. [Mr Morcom]'s wish for he airport watch [sic] to remain intact was related to his fears that [Ms Morcom] would remove [X] from Australia to live in [Country K] and he would not be able to have her returned to Australia.

75. [Mr Morcom]'s presentation at the family report interview was consistent with Mr [sic] [B]'s assessment. According to the medical records [Mr Morcom] had been taking prescribed medications for depression in the past for a diagnosis of [a mental health condition], but currently takes no prescribed medications. The recent diagnosis of Dysthymia is a completely different one and the possible personality disorder diagnosis rests on whether the single conviction for a criminal matter of the type of incident that [Mr Morcom] admitted, would be considered enough to identify anti-social personality.

[122]

Ms P gave evidence and was cross-examined by all parties. She had been provided with the parties' trial affidavits and the section 69ZW response from the DFFH dated 3 June 2024. She had not reviewed the parties' case outlines but was provided with a verbal summary of the parties' positions by Counsel for the Independent Children's Lawyer.
It was explained to Ms P that there was an omission in the Mother's trial affidavit which did not set out that the Mother had travelled to Europe as I have set out earlier and had left X in the care of the Father for the period of travel and nor had she disclosed this to the Independent Children's Lawyer by 10 December 2024 when the Independent Children's Lawyer filed her case outline.
In circumstances where the Mother maintained her position in her trial affidavit and at trial with respect to risks posed by the Father as I have set out, Ms P was asked to consider her ultimate recommendations in that light.
Ms P was made aware of the individuals and organisations against whom the Mother expressed grievances and/or made allegations of various types of abuse, including the City C Police, the DFFH, the Court system itself (which the Mother described as "retraumatising"), Dr BB (a general practitioner the Mother saw following the early December 2022 incident), one of the lawyers the Mother originally consulted (Ms AA), and the Father's solicitors (who she accused of stalking her). Ms P also noted that at interview the Mother had vehemently insisted that not only had Victoria Police made errors in their assessments, they had admitted that they had done so on all counts, whereas Ms P now understood that this was not the case. Ms P also noted that a number of the allegations Counsel listed were not raised during the Family Report interview (although Ms P did not consider that necessarily surprising, given that the Mother was preoccupied in providing a great deal of detail regarding the early December 2022 incident, and therefore may not have had time to detail all other matters). Counsel asked Ms P if she wished to comment on the Mother's more serious allegations, especially in light of the Mother's travel to Europe. Ms P stated she considered that the Mother leaving X with the Father at that time was wholly at odds with the allegations the Mother makes and maintains against the Father. That is clear and obvious.
In considering the Mother's allegations against the backdrop of those allegations being unsubstantiated by either the DFFH or Victoria Police Ms P considered that while the DFFH and Victoria Police can certainly make errors, given the lengthy investigations those organisations had undertaken, the failure to pursue any of the more serious allegations did raise concern about the accuracy of the Mother's account. In making that statement Ms P was careful to defer to the Court as the finder of fact.
In order to provide a more completed picture of X's circumstances Ms P was advised that the Mother had made a unilateral application to the NDIS for X. Ms P was of the opinion that a unilateral application was not unusual in situations where there is a clear primary carer.
As part of the assessment of ongoing risk to X in the Mother's care Ms P was advised that the Mother agreed that she had warned H School and its staff about the Father, including advising them of her allegations against him. Ms P said that clearly this will affect how the school and its staff perceive and interact with the Father and stated that if the Mother's allegations are found to be false, this would appear to be an example of "systems abuse".
When preparing her report Ms P had approached her recommendations on the premise that the Mother had a diagnosis of an adjustment disorder. She was therefore asked to consider the possibility (hypothetical at this stage) of a mental health condition and if so, what treatment options would follow. Ms P advised that the treatment of such a disorder must be approached carefully and generally would involve Dialectical Behavioural Therapy ('DBT') provided by a trained psychologist or clinical social worker not by narrative therapy, which was the sort of therapy Ms E said she provided. Ms P noted that if a person suffers from this mental health condition this can cause them to see the world as through a "filter", causing them to see individuals as either completely good or completely bad (which Ms P noted was consistent with the pattern of allegations the Mother makes against the DFFH), including in therapeutic relationships, and therefore it is not unusual for a client to make allegations against their therapist, hence the careful approach is warranted.
Ms P was careful to acknowledge that the Mother was a person who presented with vulnerabilities and, that depending on findings made, her life experience may have contributed to her report of her experiences in the relationship and marriage. For instance:-

[123]

(a) In the context of the Mother reporting to Ms P that she had been subjected to a pattern of family violence in her relationship with her own Father that such a personal history could make the Mother more vulnerable to similar violence as an adult. This comment was in the context of the Mother recounting to Ms P having been slapped by her own father when she was 21. Ms P explained that, if a person develops a degree of trauma due to past experiences of violence, a similar filtering effect to what she had previously described for the mental health condition can occur, and survivors can start to react to ordinary disagreements between couples as if those were family violence when that is not the case. Counsel asked if those increased vulnerabilities might explain why the Mother struggled to explain and/or remember key details in a coherent manner. Ms P agreed and noted that a person with significant trauma can appear to provide inconsistent accounts of events because the brain is directly and physiologically affected by the trauma such that the brain only permits specific pieces of information to be brought forward at different times, leading to a disordered, shifting and incomplete retelling. She said that inconsistency from a trauma sufferer does not therefore necessarily indicate that the sufferer is being untruthful. Ms P stated that the Mother presented at interview in a way that was consistent with the kinds of disordered recollection known to be displayed by persons with significant trauma.

(b) The circumstances of the Mother's migration status as initially being reliant on a partner visa attached to her relationship with the Father placed her in a personally vulnerable position in terms of both her immigration status and access to resources.

(c) In the event the Mother suffers from an adjustment disorder she may experience depression and trauma.

(d) In the event the Mother is ultimately diagnosed with the mental health condition, such a disorder results in the sufferer at the start of a relationship only being able to see the good parts of a person, and then as the relationship progresses only being able to see the bad. This causes very difficult relationships, difficulty in maintaining friendships, difficulty in accurately assessing what other people are thinking of them, and intrusive thoughts that are not based in reality. It often also manifests in the sufferer making extraordinary claims about others that are simply untrue.

[125]

(a) When formulating her initial recommendations in the Family Report, the parents' discrepant narratives made it difficult for Ms P to assess the precise nature of X's family life, and her recommendations needed to be tempered by that uncertainty (she said her initial recommendations were "on the fence").

(b) The series of complaints the Mother made against various organisations and individuals that the sequence of grievances was of concern, and said it appeared to align with the DFFH's belief that the Mother was engaging in "service shopping".

(c) In the event that Court found that the Father's account was correct and the Mother's false, Ms P stated that under those circumstances she would recommend X should live with the Father and attend school in City C, and that if the Court made orders for time between X and the Mother, it be each alternate weekend. However, Ms P expressed concern about the psychological impact of the Mother's behaviour in such circumstances, which Ms P said would constitute abuse with potential long-term impacts for X's psychological health. Counsel for the Independent Children's Lawyer asked if such findings would mean that any time between X and the Mother should be supervised. Ms P agreed that would need to be considered by the Court, given the serious nature of the potential psychological abuse. Ms P also agreed that, if the Mother were found to have engaged in psychological abuse of X, that would raise an immanent risk to X.

(d) A stable environment for children is critical in their first years of formal schooling, as those early years are a key developmental phase and can be challenging for children. Accordingly, time regimes that children coped well with before starting school can become unfeasible once school starts.

(e) Ms P agreed that the Father, if his evidence is accepted, has shown an ability to separate considerations for X's care from his feelings regarding the Mother, whereas the Mother is unable to establish that boundary. She said the Court should afford significant weight to the need to shield X from the parental dispute in deciding which parent should have X's primary care. She said that if the Mother continued making reports to government agencies (assuming those reports were not correct) then X would necessarily be aware of those reports as she would be subject to repeated interviews. She noted that X may respond to those repeat interviews in various ways, up to and including rejecting either or both parents depending on how X seeks to resolve her internal conflict regarding the repeat interviews. Ms P also noted that the pressure of repeat interviews could produce depression and anxiety for X and could seriously undermine X's emotional safety. Overall, Ms P stated that the risk would be "very high" or "extreme" if the Court found that the Mother's allegations were false, and time between X and the Mother would need to be limited to supervised time for at least twelve months, and possibly longer.

(f) When asked directly if it was still her view that X should primarily live with the Mother, Ms P said that her view had been "affected" by the material from the DFFH (which I discuss below) and by the "concerning" things she had been told about the evidence at trial, particularly multiple experts stating X's observed behaviour was inconsistent with the Mother's reports, and that the Mother appeared to misrepresent the Father's criminal proceedings. That said, Ms P also noted that current research has shown that children can behave positively and happily even in situations of abuse and violence. Likewise, while Ms P was concerned by the sheer number of professionals involved, she noted that current research again indicates it can be the case that victims of family violence may go to multiple services and government agencies seeking help and repeatedly not be believed, despite their statements being true. Ms P was therefore appropriately cautious about expressing concluded views as to the facts of this case. From Ms P's perspective, it would depend on whether there was a pattern of violence. The key issues concerning Ms P were that the Mother appeared to be misrepresenting the Father's criminal matters, and the Mother leaving X with the Father during her multi-week European travel, noting that action did not appear consistent with the Mother's stated concerns.

[126]

I found Ms P to be a balanced, considered and informed witness who was willing to consider divergent possibilities and adjust her recommendations accordingly. She readily made concessions based on matters put to her. For instance, when put to her by the Father's Counsel a comment alleged to have been made by the Father to the Mother (at paragraph [41] of the Family Report), he had at one point asked X how she wanted to die, which in evidence the Mother stated had been inaccurately recorded Ms P replied "well, that's how I heard it, that's how I noted it", although she acknowledged it was possible she had misheard or misinterpreted because the Mother was heightened during the interviews and "spilled a lot of information". Ms P noted the Mother's vulnerabilities and readily conceded that in a complex dynamic of family violence it is not always possible to apply sterile and logical assessment to a victim's experience, reports and actions, and such reports and reactions may be impacted by their experiences.
Ms P's recommendations for X to live with the Father and spend time with the Mother in a supervised setting are obviously dependent on my factual findings with respect to the more extreme allegations of family violence made by the Mother against the Father. For the reasons I have set out I am inclined to the view that the Father's narrative is more reliable than the Mother's. I am also inclined to the view that the Father has a more balanced view of X's relationship with both parents and in his care X will be given the best opportunity to have a fulsome relationship with each of her parents (although depending on how the relationship between X and the Mother proceeds over the next twelve months or so I cannot be entirely satisfied that something like a shared care arrangement can be achieved). Nevertheless, the risk factors for X as described by Ms P are of concern and for X's emotional and psychological safety over a number of different platforms it is necessary that she be placed in the primary care of her Father with initially supervised time with the Mother.

[136]

Past Medical History

25. There is no significant medical history.

Substance Use History

26. [Ms Morcom] described infrequent use of alcohol, having a glass of wine very infrequently. She denied any illicit substance use.

Past Psychiatric History

27. According to the affidavit of [Mr Morcom] dated 10 February 2023, he has concern [sic] for the safety and welfare of the child because [Ms Morcom] has a history of mental health concerns, which have included self-harm and suicidal ideation. He stated that during the relationship, she would self-harm by hitting her head with her phone and had lashed out by punching holes in the walls and smashed the child's play pen.

28. In his affidavit of 15 January 2023, he alleged she had a history of self-harm prior to the relationship.

29. He stated that in 2018, she attempted to jump off the balcony of their apartment in [Suburb EE], [...] tried to force open the balcony door, and he tried to prevent her from opening the door, and tried to restrain her, but she let go of the door and went flying across the floor and hit her head slightly on the bar stool. He stated that she had been through four jobs in three months and was hysterical.

30. He alleged that her behaviour could be erratic and violent without regard for [X].

31. [Ms Morcom] at interview acknowledged being distressed at the time in 2018. She felt that the world felt "heavy". She was distressed, she was unhappy with her work colleagues, and she felt angry. She acknowledged grabbing the door to the balcony, and it was locked. She denied intention to jump off the balcony at the time but was feeling sad.

32. [Mr Morcom] in his affidavit dated 10 February 2023 attached Facebook messages [Ms Morcom] sent referring to suicidal ideation between 2017 and 2022. [Ms Morcom] acknowledged sending messages that related to suicidal ideation, including on 14 May 2022.

33. She stated that there were times where she wanted to vanish, she wanted to abuse from [Mr Morcom] to stop, and she wanted to escape. At one point she referred to "[...]" in relation to suicidality, but denied she wanted to commit suicide at that time.

34. She reported a Panadol overdose, stating that she took eight tablets on a Friday and six tablets on a Saturday morning in 2022, although [Mr Morcom] claimed she took all 14 tables on the Friday night. She had noted in her Affidavit that she was taking the Panadol due to abdominal pain but had reported to a doctor as per her annexure [MSM]-7 that she felt depressed, and that is why she overdosed, and the doctor had also stated that she had denied any abdominal pain. She denied that the tablets were taken with suicidal intent but did admit that she was overwhelmed and wanted to escape.

[151]

On 3 January 2024, X was taken to the GP for regular immunisation and the Mother reported a wound on X. The GP felt it looked like a cigarette burn, circular in shape, on other side a linear wound roughly 2-3cm abrasion. The Mother informed the GP, X had just returned from time with her Father and X reported the injury occurred in the playground. The GP felt the burn was a "suspicious injury" that would not have occurred on a playground.
On 5 January 2024, the Father was interviewed by child protection in relation to the burn, he reported that they were scratch marks from eczema and denied being aware of burn marks. The Father reported using eczema cream at night on X.
Child protection completed follow up calls with X's psychologist Ms Q, her dermatologist Dr FF and Dr GG the general practitioner who conducted the initial assessment of X. Dr GG reported to child protection that the wounds looked weird and was unsure if the wounds were eczema related.
According to the Mother, on 18 April 2024, X came back to the Mother after staying with the Father with bruises, and cut marks on her wrists.
On 19 May 2024, the Mother observed X having some bruising on her lower leg and arm. X was taken to the GP Dr HH, the GP was unable to determine the cause of the bruising and said it looked "suspicious" but he could not explain why the bruising was suspicious. He stated his assessment was based on multiple instances of bruising and the Mother providing him with a video of X saying, "daddy hurting me, daddy hurting me." Dr HH was of the opinion this rose to the mandatory reporting threshold.
Child protection further investigated the bruising and cited it as being brown in colour and appeared normal for a child of X's age.
On 21 May 2024, the Mother requested an update in relation to the 19 May 2024 bruising report. The Mother was advised via text message that Dr HH was not able to determine that the bruises were non-accidental, and child protection would not be intervening in the proceedings in this Court. The following day, the Mother withheld X from the Father and reported the bruising to City C SOCIT, who took no further action.
On 23 May 2024, child protection determined there was sufficient evidence to substantiate the there being a likelihood of emotional and psychological harm for X in the care of the Mother, pursuant to grounds of section 162(1)(e) of the Children, Youth and Families Act 2005 (Vic).
The Mother had also raised concerns with respect to X's "sexualised talking" such as "let's take a photo together naked" or "lets fly together naked" and "daddy takes naked photos of me." The Mother reportedly told DFFH about the Father's work in the adult entertainment industry. In December 2023, SOCIT was consulted regarding the possible sexual abuse. SOCIT advised they intended to take no further action and closed the case.
Child protection had significant concerns in relation to the Mother's behaviours of "service shopping", by way of reporting to several professionals the same concerns of historical family violence. It was child protection's observation, throughout all the child protection reports, that when one allegation was unsubstantiated, or no further action was taken, the Mother would then fixate on another incident or scenario to raise another allegation.
It was the assessment of the Department that the Mother's motivation was not about X nor in her best interests, but in her deeply held belief that X should have no contact with the Father.

[173]

Being as fair as I can to the Mother, I am of the view that she and Counsel for the Father were talking at cross-purposes. Counsel for the Father quite properly focussed on what was a fresh allegation that the Father had said "do you want me to throw you out of the window?" implying that he was threatening to throw her from the balcony, whereas the Mother seemed to be responding with an assertion that he threw her causing her to hit her head on the bar stool.
In respect of this incident, I think it is likely that each of the parent's version of events is a difference of perception. Their respective subjective perception of the incident is equally valid although the catalyst does seem to be the Mother's highly emotional and reactive state. It is easy enough to imagine the Father's fear regarding the Mother's intentions, even if she in fact had no intention to commit suicide. It is hard to imagine the Father, as any partner would, appreciating the distress and pain the Mother was in, not restraining the Mother for her own protection. It is easy to see that the Father may have felt the need to protect the Mother from herself.
Equally, I can see that the Mother with her histrionic and rather self-centred personality style did not feel that the Father's support was forthcoming or fulsome enough. I would venture to suggest that the Mother was not entirely rational in the moment and the Father was at his wits' end, particularly having regard to his previous experience of the Mother, her volatile mood swings and history of self-harm. With the Father's own personal vulnerabilities this incident degenerated into an argument which resulted in the Father restraining the Mother, she lets go of the door and falls striking her head on the bar stool. The Mother experiences this, at least with the benefit of hindsight, as family violence whereas the Father reacts in the moment to protect his partner.
This incident informs more as to the completely dysfunctional and toxic relationship between the parties than being truly an incident of family violence although I do not accept that the Father threatened to throw the Mother from the balcony. It seems unlikely that he would go to the extent of restraining the Mother as he did and yet make that statement as a serious threat, if he uttered the words attributed to him at all (which on balance I do not find that he did). The Mother's late assertion that he said those words also creates difficulties particularly as it was not reported to the police, Dr B, the Family Report Writer, or Ms E. That dysfunction is long standing and pre-dates the parties marriage and the birth of X.
The Mother's evidence under cross-examination was internally inconsistent with respect to this alleged threat. She later said that the threat was delivered after she had fallen to the floor and hit her head on the bar stool and the threat was "Do you want me to throw you out of the window?".

[185]

In her trial affidavit, in response to the Father's assertion that she had deliberately overdosed, the Mother said "I never overdosed myself. I was self-soothing according to my Psychiatrist [sic] [Ms E]" (at paragraph [48]). I should note that during her evidence the Mother readily acknowledged that Ms E is not a psychiatrist and the reference as such was an error on the part of her lawyer, which I accept.
During cross-examination, the Mother said that when she over-dosed, she was "basically... self-soothing" whilst having feelings of worthlessness and feeling down as a survivor of domestic violence (although she did not resile from her evidence that she was still experiencing abdominal/menstrual pain).
During cross-examination of the Father, Counsel for the Mother suggested to the Father (presumably on instruction) that the Mother took Panadol variously for a headache and/or abdominal pain. The Father responded, and I agree, that the excessive dosage is inconsistent with simply taking Panadol for pain relief. In any event, the Mother herself acknowledges that the overdose was not simply for physical pain relief.
Consistent with the Mother's tendency to assert blame to the Father for her own mental health frailties, it was suggested that the Father was unsupportive of her in her work and the stresses arising from work while at the same time insisting she engage in employment. The Father largely denied these assertions, but did say he offered some constructive criticism when she was struggling to maintain work for an extended period of time.
Returning to the narrative of the overdose, when the Father could not rouse the Mother from the couch in the living room (where X was also playing), he moved her to bedroom. This is not disputed by the Father, and he says he thought she would be more comfortable there.
It is at this point that the Mother alleges she was sexually assaulted by the Father. As with her evidence about the overdose, the Mother's evidence is inconsistent regarding the assault.
On 3 February 2023, the same day the Mother swore her February 2023 affidavit, she reattended upon Dr BB to amend the November 2022 medical record. Dr BB's visit notes read:-

[187]

The tenor of the Mother's evidence was that she had raised this with the doctor at the initial consultation but the doctor had failed to record the sexual assault. The Mother said the doctor had said that because I am not your usual GP I just didn't write the violence. The difficulty I have with this passage of evidence is that the Mother has made a complaint some four months after the doctor consulted with her about what she asserts is missing information. It seems implausible that a doctor would fail to record a sexual assault complaint by a patient. It also seems implausible, but I suppose not impossible, that a General Practitioner who would have seen scores of patients in the intervening period would have an independent recollection of what the Mother had said earlier. It seems more likely that the Mother made her complaint and sought to remind the doctor of her complaint and the doctor has accepted the Mother's account as truthful and recounted the Mother's February 2023 account in the medical records. The doctor's words at the end of the addendum report "as per the patient" suggests it was the latter. The Mother's evidence was also that the clinic was "alarmed" by the omission alleged by the Mother also suggests that the note had arisen from the more recent report and complaint rather than with independent recollection. Without hearing from the doctor (who was not called) it is not possible to make a finding whether the Mother made a contemporaneous complaint of sexual assault in November 2022 or whether her complaint arose for the first time following or contemporaneously with the Father issuing proceedings.
In any event the Mother's recorded complaint was that she could not recall the alleged assault clearly, she experienced some pain (noting that on the Mother's case she was suffering from menstrual pain at the time) and that her clothing "looked as if someone had touched it". This is simply too vague and speculative to place weight of sufficient magnitude upon it to make a finding to the requisite standard that a sexual assault occurred.
What is of greater concern is that in the Mother's affidavit sworn on 3 February 2023 (the same day as the Mother approached the doctor for the addendum to the consultation notes "for legal proceedings") the Mother provides a more particularised version of events at paragraphs [34] and [35]. The Mother said:-

[198]

When being asked questions about the above text messages the Mother said it did not mean that she was suicidal and referred to her years of abuse, which made her feel low and worthless. The Mother concedes that she has at times felt low, worthless and lost in herself. She vehemently rejects feeling suicidal. Whether the Mother is conscious of her actions of not, her actions in November 2022 resemble a cry for help. Whether she intended to end her life or not, her actions worry those around her. The text messages adduced by Counsel for the Father demonstrate the Mother's propensity to either threaten to commit suicide or feel suicidal when their relationship was tumultuous. Whilst the Mother may not be conscious of the impact of her actions, her threats of suicide are concerning, manipulative and constitute family violence.
I do not accept the late breaking assertion that the Father forced the Mother to send text messages or asked her to hit her head on the fence. Unfortunately for the Mother, I had the distinct impression that she was making up parts of her evidence as she went along when being challenged as to her subjective view of the world. Whilst appearing sincere, her style of giving evidence had a theatrical quality to it. She paused for effect, was emotional at times but quickly recovered. At other times, when I would have expected some level of emotion, she was almost wooden in her presentation. The assessment is made more complicated by my assessment of the Mother as being intelligent and articulate. One of the challenges of assessing the Mother's evidence is that she is prone to exaggeration and, contrary to Dr B's assessment, I have ultimately formed the view that she has convinced herself that her own false views are real. Whether that is psychiatrically delusional or simply a function of a disturbed personality/personality disorder is interesting but ultimately moot. I am also of the view that the Mother's false narrative is not confined to these proceedings but that her self-appointed persona as a victim of serious family violence is a role that she adopts with the world at large, and into which she has attempted to recruit X as a co-victim.
I have also had the benefit of being able to personally assess each of the parties. Contrary to the Mother's assertions which would have me believe that the Father is a scheming and manipulative monster who for years as embarked on a violent and calculated campaign to degrade and destroy, I observed him to be worn down by the relationship and ultimately the litigation with respect to X. Of the two parents, the Father had the presentation a person impacted by family violence and was ashamed and insightful as to his own contribution to this toxic and unhappy union. He had a level of insight into his own mental health difficulties and has obtained appropriate treatment. Under the most difficult of circumstances and facing the most horrendous and serious allegations by the Mother he was still very focussed on X and her need to have her Mother in her life. I had the distinct impression that he just wished the situation was different and that he and the Mother could co-parent in an effective way. Although he too presented as intelligent and articulate, his presentation was more artless and less sophisticated than the Mother's. I do not accept that the Father is a cunning sociopath as the Mother asserts.

[199]

This brings me to the most serious allegation of family violence made by the Mother against the Father. The events of early December 2022 were traversed in detail during the final hearing. The parties recount divergent narratives of the events that day.
The Father recounted that the Mother had threatened to take X away and that he would never see her again. It resulted in a verbal argument between the parties, this aligns with the statement he provided to police the same day (Exhibit M16). The Father stated he began to turnaround and walk away from the Mother but she followed the Father, hitting him in the back of the head and on his back.
The Father admits to attempting to restrain the Mother in self-defence.
The Mother recounts a vastly different narrative of events to the Father, but has provided various inconsistent statements in relation to this incident. It is impossible to reconcile the parent's accounts as a difference of perception. The Father's evidence with respect to early December 2022 is more likely to be accurate. As to this event, like others, the Mother's evidence is inconsistent and unreliable.
In the Mother's affidavit dated 6 February 2023 (Exhibit M14) was the Mother's summary of the early December 2022 incident. It is five pages in length and titled 'The Biggest Incident of Severe Domestic Violence: Strangulation, Suffocation, Unlawful Detention/ Imprisonment, Deprivation, Enslavement, Torture.' The Mother marks the timeframe of the events on the documents as 12pm to 5pm a 5-hour period. The Mother was cross-examined at length and her narrative was not consistent to that provided in summary (Exhibit M14), nor is it reflective of the information provided to police on the evening of the incident (Exhibit M16), nor does it reflect her police statement of early 2023 (Exhibit M23).
In early December 2022, the Mother did not go to work due to having a cough and cold. Whilst the Father recalls the Mother being home that day he does not recall the Mother having a cough or cold but he was concerned for her mental health and thought she was depressed and did not want to work.
Contrary to the Father's narrative above, the Mother said a verbal argument resulted because the Father wanted to take X to see his parents (Exhibit M14):-

[220]

The reviewer outlines how difficult it is for the attending officers at the scene to identify the primary aggressor and that they conducted various investigations. In particular, the review confirms the police searched for the hammer. The officers made all reasonable enquiries, and decided to identify the Mother as the primary aggressor based on the recorded history of family violence between the parties in which police considered she had generally been the perpetrator. The Mother noted her bruises to the officers, but made no mention of any other injuries at the time. This account is quite different to the picture painted by the Mother, who asserted the review indicated some form of police corruption or negligence.
The Mother provided a statement to police in relation to this incident in early 2023 (Exhibit M23). The Mother's statements vary somewhat to her original narrative set out in Exhibit M14. With the further information from her early 2023 statement, the Mother was re-identified as the AFM with respect to the early December 2023 incident.
When this incident was put to the Father in cross-examination by Counsel for the Independent Children's Lawyer, he said the events the Mother described never happened. The Father denied attacking the Mother with a hammer. Further the Father stated he did not own a hammer, there was no hammer in the house or garage, he was not very good at 'DIY' tasks, and that he relied on services such as 'Airtasker' to complete jobs around the house like putting up picture frames.
Contrary to the review documentation, the Mother said the Police refused to look for a hammer when they attended the home. The review outlines that police officer attending in early December 2022 looked for the hammer, but it could not be located.
I accept that a verbal and physical argument took place between the parties on that day. Both parents were implicated. The parents both concede in their statements to police on the day that physical violence was used in the form of pushing, grabbing, dragging, bear hug and restraint. Whilst they differ as to the reasons for the assaults, they both claim self-defence against the other. The Mother hit the Father on the back of the head and in the back and the Father used force in an attempt to restrain her.
The physical violence described by the Father is a far cry from the incident described by the Mother. The Father's report of what occurred arises in light of the parent's dysfunctional relationship, personality and mental health vulnerabilities for both parties and a conflictual and immature relationship style. The violence described by the Father is reactive and arises in the stressors of the moment. The Mother's account is again of a Father who reacts in a maniacal and homicidal manner in the presence of X.
The Mother's account strikes as bizarre and is not supported by police search or observations recorded by the attending officers. No hammer was located and both parties were distressed and crying. The Father does admit to perpetrating family violence in the relationship, however, denies this incident in terms of the allegation of locking the Mother in a walk-in-robe for three hours or threatening her life with a hammer.
It is clear that this argument was highly stressful and upsetting for both parents them and that X was exposed to a violent incident. The parents were both perpetrator and victim.
In most cases I would not be too troubled by modest inconsistencies in factual recounting, putting it down to a fault in recollection which occurs when under stress. However, in this instance, although the Mother's evidence of that day is somewhat consistent between documents (for instance there is always a hammer, always a closet, always a dispute about a telephone) there are other aspects of the evidence which suggest that the Mother is prone to exaggeration. For instance:-

[252]

The Father's evidence is that the Mother has threatened to take X away so that he would never see her again. An airport watch list order was made on 23 February 2023 to last for two years and has now expired. On 13 January 2025, I extended the airport watchlist until further order. In any event, a new airport watch list order would be required at the conclusion of these proceedings even if it had not expired (see Sadasivam & Seshan [2019] FamCAFC 76).
There were difficulties with X's passport being placed with the Mother's solicitors, but as her representation changed several times this created confusion. Ultimately, X's passport was returned to the Passports Office and has now been provided to the Father.
The Father did not seek a continuation of the watch list order in his Further Amended Initiating Application filed 12 December 2024, and in his evidence told me he was hoping to have it removed. This was at a point in the proceedings where he was still proposing that X spend unsupervised overnight time with the Mother.
The Mother in her Further Amended Response to Initiating Application filed 5 December 2023 sought permission to leave Australia with X.
In a minute provided by the Independent Children's Lawyer at the conclusion of the trial, no further restraint on international travel was proposed.
I am concerned that the Mother may be a flight risk. The Father's affidavit identifies a number of occasions where the Mother threatened to take X away so he would never see her again and I accept his evidence that this was said. The Mother denied she was threatening to take X, but conceded that she said she would rather go back to her hometown in the context of her experience of abuse. A text message annexed to the Father's affidavit (Annexure MRM7, formally tendered as part of Exhibit F1) states "I will leave for [Country K] to heal and I'll take [X] with me". Regardless of whether the Mother threatened to take X or simply thought she was justified in doing so, I am concerned that if the Mother is unable or unwilling to moderate her thoughts in relation to any risks for X in the context of my findings, she may decide to do everything she can to remove X from the care of the Father.
Despite that, in the context of the orders I have made, the Mother will have no opportunity to do so at the current time, as X will only spend supervised time with the Mother, and the Father holds X's passport. In those circumstances, I am of the view that the watch list order may safely lapse and not be reinstated. The Father will have an ability to travel with X overseas. The watch list order may need to reconsidered if the time between X and her Mother changes.

[270]

As noted above, the Father entered a plea guilty to a charge of common assault on the Mother in relation to this incident, for which the final result was a good behaviour bond without conviction. Various other charges were initially laid regarding this incident but were withdrawn by Victoria Police. That is not the end of my analysis, however, as there may be any number of forensic reasons why Victoria Police would choose not to pursue charges to trial, and therefore I must form my own view as to what I consider likely occurred on balance of probabilities. That said, since I have found the Father to be a more reliable witness, and the Mother unreliable, I accept the Father's account of this incident, being that he grabbed the Wife's wrist to restrain her, in relation to her filming him on her phone.
The Father's actions do him no credit. On his own admission, he engaged in physical violence in response to something that was not a physical threat. In my view, it is not relevant whether an argument could be made as to 'provoking' behaviour by the Mother, because that does not alter the potential risk to X. Especially as X moves towards her teenage years, it is likely she will engage in challenging behaviours. If I considered the Father had a propensity to resort to physical violence in the face of challenging behaviours, that would suggest a risk to X.
In this case, I do not consider that the Father presents with an on-going propensity to physical violence in response to stress. The Father's subsequent text message to his biological mother in my view reflects genuine contrition, as do his subsequent actions in seeking supports to ameliorate his behaviour. The Father has engaged in subsequent actions to seek behavioural support, I am satisfied that his patterns of action are now likely to be different.
Returning to the Father's text message to his biological mother, I have considered how I should evaluate it with regards to the Father's assertion that the Mother compelled him to send it, and that it represented part of the Mother's pattern of coercive control and isolation of the Father and X. This was a situation where the Mother was unquestionably a victim of family violence. It is important to avoid double victimisation through criticising victims for actions they took either where they felt those actions were necessary for their safety, or where the victim displays maladaptive responses to the violence. Those responses are better understood as a further consequence of the perpetrator's violence, not any failing on behalf of the victim. Here, with great reluctance, I am critical of the Mother's actions around that text message.
I note that I have accepted the Father's position that the text message was part of a pattern of coercive control. That said, I do not think that statement undermines the apparent contrition shown by the Father in sending the message, for two reasons. First, it is one of a series of actions taken by the Father to ameliorate his behaviour, and as such still fits within an authentic pattern of contrition. Second, the form of coercive control the Father articulated was to emotionally manipulate him by causing him to believe that he was an irredeemable abuser. That indicates that at the time of sending the message the Father would genuinely have felt the emotions he expressed in that message. While he appears no longer to consider himself irredeemable, nothing before me suggests he has ceased to feel contrition.
Engaging in coercive control and emotional abuse to undermine the Father's sense of self is family violence perpetrated by the Mother, and raises a risk she may in time attempt to control and isolate X in similar fashion. Insofar as the text message forms part of that pattern, it is an incidence of family violence.
Also concerning to me is the Mother's reaction to the Paternal Grandmother's response to the Father's text message. The Father's biological mother, understandably, was hurt and distressed at the prospect of losing contact with her only grandchild, and focused on that issue. During cross-examination, the Mother declared that response to be appalling and unacceptable. When asked why the Paternal Grandmother's response was unacceptable, the Mother deflected and rambled, but as best I could understand her complaint was that the Paternal Grandmother failed to castigate the Father for committing family violence.
The Mother's response was solely focussed on her own needs and lacked empathy. It also put her needs above X's right to have her grandparents in her life and the Father's legitimate desire to have all of his family involved in their lives.

[276]

Both parents agreed that family violence in the relationship was not confined to these key incidents, with each alleging the other engaging in ongoing violence of various forms. That on-going violence is capable of being equally as harmful as violence concentrated around major incidents, and I take its impacts seriously even though the accounts of that violence are necessarily less detailed in the parents' materials and evidence.
Noting I have largely rejected the Mother's narrative, the Father has conceded that, during the day-to-day experience of the relationship, he was at times verbally violent and behaved aggressively towards the Mother, including in front of X. In particular, I note the Father posted a vile Facebook message threatening to slit his own throat with a knife. The Father's admitted violence occurred in the context of what clearly was a deeply unhappy and embittered relationship. Nevertheless, my assessment of violence is not diminished merely because it was the 'product' of the relationship dynamics. A person resorting to family violence in the context of stress and unhappiness in one situation raises a real prospect of them resorting to family violence if stress and unhappiness emerge in another situation.
I must therefore consider whether the Father's admitted violence towards the Mother is an indicator of likely future violence should the Father find himself in high stress situations. That assessment is not limited to whether the Father will find himself needing to manage family-based stress, as it is hardly unheard of for an individual experiencing stress outside the home to struggle with emotional regulation within the home.
In this case, I consider the Father demonstrates low risk of future family violence, even if subject to stressful situations either in the home or outside it. The Father has engaged in counselling and behaviour change programs, and has sought appropriate therapeutic help. Under cross-examination, his acknowledgment of violence impressed as genuine, and I consider he showed appropriate insight about the impact of violence. I am persuaded he is motivated to ensure he does not commit violence in the future, and has worked to develop appropriate skills and strategies to ameliorate his behaviour.
My assessment of the Father stands in contrast with my assessment of the Mother. My impression of the Mother is that she has not accepted in any genuine or meaningful way that she has engaged in family violence against the Father, and while she has sought out therapeutic supports, she appears to have chosen her treatment providers based on whether they would support and validate her (in my view, false) narrative of blameless victimhood. The Mother has displayed no insight into her own behaviour, either for violence directly aimed at the Father or for her episodes of self-harm (which she still denies constituted such). That would have been highly distressing for the Father to manage (and to the limited extent that she will have understood what was occurring, for X to witness).
Throughout the trial, the Mother deployed the language of family violence theory. Many of her answers were repetitively prefaced with phrases like "as a victim-survivor", and she made reference to wider patterns of family violence to suggest that women are never (or rarely) believed by institutions, with an implication that the mere fact of gender should warrant the Court automatically believing her narrative and dismissing the Father's. Relatedly, I note that the letters of support from Ms E likewise included a reference to the statistics of family violence related murders.
I am not critical of the Mother for seeking to understand family violence dynamics, nor for her being worried as to lethality risks. If I had accepted her narrative of family violence by the Father, it would certainly have pointed to a large number of 'red flag' factors suggesting an elevated risk of lethality. The Court does not expect litigants to keep themselves isolated from information or supports to assist with family violence. Likewise, this Court does not sit in moral judgment of litigants, but instead assesses the risks (if any) litigants may pose to subject children. The reason the Mother's use of key phrases from family violence literature is relevant is because it indicates that she is a person who is not only wholly lacking in insight into her own behaviour, but who is equipped with language and frameworks to seek to use systems and support people around her to accept her narrative and treat the Father as the perpetrator (and the sole perpetrator) of extraordinary, if not bizarre, family violence allegations requiring direct and immediate intervention to protect X. I consider that the Mother's history of service shopping (which I find has occurred) also demonstrates that she is highly motivated to engage in this manipulation.
While issues of systems abuse occupied part of the trial, I also note that the Father has alleged the Mother engaged in constant coercive control and emotional abuse throughout the pre-separation relationship. He has alleged a long-term campaign by the Mother to isolate him and X from the Paternal Grandmothers. He also spoke during cross-examination about being constantly told by the Mother that he was an abuser and that there was something wrong with him (by implication, psychologically). Those are features of coercive control, and I find that the Mother displayed a long-term pattern of coercive control towards the Father, although I am not in a position to determine whether the Mother did so deliberately or with any insight into what she was doing.

[279]

These risks are well-understood by the Court, and arise regularly in family law matters. It is uncontroversial that children caught in the middle of parental disputes are prone to becoming 'parentified', being forced to be the go-between and placed under high levels of pressure and stress, affecting their emotional regulation and ability to establish and maintain safe, stable, and fulfilling relationships of their own in later life. Likewise, it is uncontroversial that the creation of a false narrative of abuse can have comparable impacts if the child comes to believe the false narrative of abuse they have suffered.
These three immediate risks mean that, in my view, X would be at an unacceptable risk of harm in the Mother's care, at least as the Mother is now. Managing these three immediate risks to X's safety therefore necessitates that she live with the Father, and that the Father have sole parental responsibility for X. In reaching that conclusion, I recognise that the Mother will be severely distressed by my decision, and X's relationship with the Mother will likely be placed at risk, both because her time with the Mother will be greatly reduced by the orders I make, and because the Mother has at times expressed to experts that she may refuse to engage with the Father even at the cost of not seeing X. If that were to eventuate, it would risk the same alienation impacts discussed above, only this time for alienation from the Mother.
I have reached a conclusion that I can and should make final orders regarding where X should live and who should have parental responsibility for X, but that I cannot at this time make final orders regarding the time X should spend with the Mother. In short it is because the Mother's mental health, any diagnosis, and her likely prognosis require further investigation. Depending on the outcome of that further investigation, I am concerned that there may be a real chance of additional risks to X that must be managed - not just from the parental conflict, but from the Mother's psychological state even if the parental conflict were fully put to bed. Accordingly, in my orders for further investigation of the Mother's mental health, I will ask for discussion by the relevant experts not just of what diagnosis (if any) is appropriate, but also what emotional and psychosocial risks that condition (if diagnosed) would pose to X in the Mother's care, both if the condition were well-managed and if it were not well-managed. In particular, I will ask for information regarding:-

[282]

Since I have rejected the Mother's narrative of family violence, and I propose to place X with the Father, there are few if any evident risks or threats to the physical safety of either parent, although I am concerned about the potential for the Mother to relapse into what I have found to be prior self-harm behaviours. In that sense, the greatest threat to the Mother's physical safety may be the Mother herself. However, I do not have powers to make orders to address that risk other than by ordering in the interim that time between X and the Mother should be supervised, so that if the Mother is struggling to self-regulate X can still be protected.
While I am not aware of any alleged risks for the Father's physical safety, there is a material risk to the Father's emotional and psychological safety if the Mother continues to make what I have found to be false reports to Child Protection and to the Police. My concerns on that front are reinforced by the incident on 26 December 2022, where the Father reports being pressured into allowing the Mother to take X by someone thought by him to have been the Mother's counsellor and determined by the Independent Children's Lawyer to have been a social worker. If it is the case that the Mother was able to persuade a social worker to intervene in such a manner, that would demonstrate that the Mother is capable of persuading persons with at least perceived societal authority (if not actual lawful authority) to accept her claims and take decisive action on her behalf. If such efforts continue, they will likely cause the Father considerable on-going stress and distress, and thus constitute a risk to his emotional and psychological safety. To protect the Father from that risk, I propose to make orders that will enable these reasons to be provided to relevant authorities and treating professionals. That will assist the Father in demonstrating (should it be necessary) what the Court-ordered care arrangements for X are, and why those orders were made.

[285]

I have already addressed many of these factors under the heading of safety above, as emotional and psychological harms are the most clearcut and immediate safety risks for X.
The Family Report Writer and the Child Impact Report Writer stressed the need for stability and regularity for X. X needs a stable environment because she is in the process of transitioning to school. That is a very demanding time for any child and carries particular opportunities for additional stress.
The need for stability therefore pulls in several directions. First, X has spent the majority of her time with her Mother, spending four days per week with the Mother since the 14 February 2023 consent orders were made (two years ago). It will be a serious dislocation to X for her connection to the Mother to be disrupted and time significantly reduced.
Second, stability includes emotional stability in X's psychosocial environment. I currently have serious concerns about the Mother's ability to provide an emotionally stable environment for X, even if she were able to put her feelings towards the Father to one side. The Mother presented as volatile, obsessive, and vengeful. Without significant improvement in the Mother's presentation, I would be concerned for the Mother's ability to provide the emotionally stable environment needed to foster X's development.
Third, stability for X requires stability for her parents. Both X and her parents would, all else being equal, benefit from an efficient finalisation of these proceedings. However, if I were to make final orders on all matters and conclude the proceedings, it is likely I could only do so by ordering that X spend little or no time with the Mother. I assess the Mother on the evidence before me, and currently there are unresolved risks for X in the Mother's unsupervised care. Any pathway for an increase in spend time would rely on speculation as to possible diagnoses and treatments for the Mother, but orders for supervised time in perpetuity would be unsustainable both because of limits in the availability of supervision services and because such visits would tantalise X with the possibility of a relationship with her Mother. However, cutting off the Mother entirely does not appear to be in X's best interests where there is still uncertainty regarding the Mother's diagnosis, prognosis, and options for treatment. It may well be the case that there is a pathway towards a stable and healthy relationship between X and the Mother, but further information is required in order to assess that question.

[290]

Unlike previous versions of the Act, the mandatory considerations set out at section 60CC(2) no longer include a discussion of the value of making orders least likely to lead to further proceedings. However, as I noted above in discussing the importance of stability for X, framing orders so as to ensure the finality of proceedings will still often be in a child's best interests. I have reached a conclusion that this is a rare case in which finalising the proceedings now would not be in X's best interests.
As noted above, I have made a series of findings that are adverse to the Mother. On the basis of those findings, it is in X's best interests that she live with the Father. In X's circumstances it would be impossible for the parents to share decision-making responsibilities about major long-term issues for X, and consult with each other as is contemplated by sections 61CA and 61DAA of the Act. Given X will live with the Father moving forward, it is appropriate (and perhaps inevitable) that decision-making responsibility should be allocated to him. To do anything else would likely hinder important decisions which will need to be made, especially in relation to X's medical needs, in circumstances where she appears to have some special needs (although at the conclusion of the trial it is still unclear to me exactly what those special needs might be). It is appropriate and necessary for the ability of X's ongoing care that there be final orders on those two matters.
I am not of the opinion that the arrangements for X to spend time with her Mother can be finalised at this point. This is an unusual position to adopt, but it has not been until the issues in the case have been fully ventilated that I can now conclude that it is likely that the Mother is ill with disturbed thought processes. I cannot determine what the nature of the Mother's illness might be and therefore I cannot determine how her illness might be treated. Dr B surmised that if negative findings were made against the Mother then she might be suffering from a mental health condition (as opposed to his diagnosis of an adjustment disorder during his initial psychiatric report on the Mother). Although I am aware that (if diagnosed) the mental health condition is difficult to treat, likely requiring medium term psychological or psychiatric interventions (the Family Report Writer suggested a two year period of treatment would likely be needed), there is no formal diagnosis of the Mother, and nor could there have been until evidentiary findings were made. Without a diagnosis and/or further assessment, it is also impossible to ascertain what is the precise nature of the Mother's illness and how she might react to treatment and assistance and even whether or not she will access assistance. Nor can I assess whether the Mother can quickly reach a point where she is capable of shielding X from her view that the Father is a danger to both her and X, and thus be capable of shielding her from emotional and psychological harm. When I consider those matters in the context of the arrangements I shall order, which on any view:-

[292]

In my view, an optimal result for X would see her moving between her parents' households freely while not being exposed to the Mother's false narrative surrounding the Father and X's relationship with him, or any other psychologically and emotionally harmful behaviours. I hope that can be achieved, particularly because in all other respects the Mother has much to offer X. The Mother is smart, articulate, theatrical, artistic and immersed in a world of imaginative play and fashion. She is physically very attractive. She loves and adores X. Although not ventilated in detail during the proceedings, she has a cultural background that she would ideally be able to share with X. She is the only Mother X will ever have. This loss for X will be huge.
An interim order is not without its downsides. The Father is funding his case personally and there is a direct financial imposition upon him. He may ultimately appear as a self-represented litigant, and so I will make a notation that (in light of the family violence discussed above) the mandatory provisions of section 102NA apply prohibiting direct cross-examination of each parent by the other. The Mother already has the benefit of funding through the Commonwealth Cross-examination Scheme, which will continue at any future final hearing. The Independent Children's Lawyer will continue in her role, funded by Victoria Legal Aid.
An interim result may seem at odds with the need to provide X stability as part of her developmental needs (as discussed above regarding section 60CC(2)(c) of the Act), and the overarching purpose of the Act expressed at section 95(1)(d) as being to facilitate the just resolution of disputes (among other things) as quickly, inexpensively and efficiently as possible, which purpose is reinforced by the objective expressed at section 95(2)(d) that the Court dispose of all such proceedings in a timely manner. Nevertheless, these considerations cannot dictate against my assessment that the imposition of interim orders for time between X and the Mother is in X's best interests in the longer term. I also take into consider as an aside that the final orders proposed by the Father and the Independent Children's Lawyer, in my view, would likely result in further litigation sooner rather than later, and therefore the downsides of declining to finalise the proceedings would then be incurred at that time in any event.

[293]

Although Ms P and Dr B were reticent to attribute a physical risk to X in the Mother's care (and in the case of Dr B, he thought that further psychiatric evaluation was warranted in the event of adverse findings against the Mother), I have formed the view that a more cautious approach is warranted to protect X's safety, even in the physical sense. The Mother holds an unshakeable view that she and X have been the victim of extreme and serious family violence. I am cautious about calling the Mother's views delusional given the opinions of Dr B, but her allegations are so serious and so unlikely that I have formed the view that she lives in some sort of fantasy narrative, which suits her agenda. For the reasons I have set out, I am of the view that the Mother's more extreme allegations are fallacious. I acknowledge that she has been the victim of family violence at a different but less serious level.
The likely effect of this state of mind on the part of the Mother is, in my view, twofold. First, there is the ongoing psychological risk to X acknowledged by Ms P and Dr B, namely that X will continue to be exposed to assessment and treatment following ongoing complaints by the Mother to agencies regarding the Father's behaviour.
The second aspect of the Mother's presentation which is of concern is my assessment of her as a person who is self-centred, self-absorbed, and who lacks empathy. She attempts to recruit X into her false narrative, which has a theatrical quality about it, as I have described. To date, the Mother has complied with the orders for X to spend time with the Father even though she has held her views throughout. That is to her credit. Nevertheless, my concern at the conclusion of the trial was that the Mother was faced with obvious ongoing rejection of her narrative by both the Independent Children's Lawyer and the Court. Faced with those challenges. I was concerned that the Mother, who is intelligent, would need some time to process the outcome and for Dr B to assess her reaction to it. It is for those reasons that I made interim orders at the conclusion of the hearing for supervised time, and will make the orders set out above for supervision to continue pending further assessment.
As I said in my introductory comments and I will reiterate here, if the Mother has an underlying psychiatric or psychological condition requiring treatment it will not necessarily be required for the Mother to be "cured" of such condition in order for X to spend more expansive and regular time with her (if in fact it is possible for anyone to be "cured" of such conditions). Rather, there will need to be ongoing assessment as to what, if any, aspect of the Mother's presentations pose an ongoing risk to X in an emotional (and possibly a physical) sense. For instance, it may not be possible for the Mother to be disabused of her subjective truth of the Father's actions, but it may be possible for her to be educated about and develop insight into why X should not be recruited into the Mother's view of her truth and why efforts at recruitment are detrimental to X's well-being. It is for this reason that further and ongoing assessment and court oversight is necessary.

Morcom & Morcom [2025] FedCFamC2F 502 (28 April 2025)

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