Nash & Phoenix [2025] FedCFamC2F 1071 | Case summary

Nash & Phoenix [2025] FedCFamC2F 1071 | Case summary | Zoe

[35]

(a) She will have sole decision-making responsibility for all major long-term issues relating to the child and agrees to notify the father in writing of her proposed decision, consider his views and notify him of the decision she has made.

(b) The child will live with the mother, and unless otherwise agreed spend time with the father each alternate weekend from the conclusion of daycare or school on Friday until the commencement of daycare or school on Monday, extended to Tuesday if a public holiday, and on Christmas Day, Mother's Day and Father's Day.

(c) The mother be permitted to take or send the child outside of the Commonwealth of Australia for the purpose of short-term travel as agreed between the parents and failing agreement, for no more than twenty-one (21) nights consecutively each year, provided that she notify the father no less than sixty (60) days before proposed travel, including dates and location, and provide the father with a copy of return air tickets and details of accommodation arrangements no later than twenty-eight (28) days prior to such proposed travel, and that there is make-up time for the child with the father, nominated by the father in writing, with make-up time not to be consecutive with the child's time with the father pursuant to the final orders.

(d) Within 28 days the father move from his current residential address at 1 B Street, Town D and be restrained from living on B Street, Town D or residing within a 1000m radius of the mother's residence from time to time, and an order which gives the police power to arrest the father without warrant, if a police officer believes on reasonable grounds that the father is in breach of the order.[4]

(e) The parents have permission to provide a copy of the final parenting orders to any school or childcare facility which the child attends and to any medical or allied health professional upon whom the child attends.

(f) The father pay the mother's costs of and incidental to the parenting proceeding.

[61]

The Court expresses gratitude to each of the legal representatives for their diligence in obtaining evidence which complies with Rule 1.10. The Independent Children's Lawyer obtained an affidavit from Mr P, a Lawyer and Attorney-at Law in Country C, and an affidavit from the surrogate mother Ms N, and the submissions concerning the surrogacy which are contained within the case outline filed by the Independent Children's Lawyer have assisted the Court.
The evidence establishes that in 2021 the parents entered into a Surrogacy and Childbearing Agreement in City Q, Country C as the Intended Parents with Ms N the Surrogate. A copy of the Surrogacy Agreement is attached to the affidavit of Mr P.[13] The Surrogate has lived in Country C at all material times.
A donor egg was obtained in Country C. The source of the donor egg is anonymous. The father's genetic material was sent from Australia to Country C and was used to fertilise the donor egg which was implanted in the Surrogate.
In 2022 the child X was born in Country C. The parents travelled to Country C approximately two weeks before the birth of the child. Neither parent was present for the birth. The child was collected from the hospital within 48 hours of his birth. The mother recalls that the child was handed to the parents by a nurse inside the hospital, whereas the father recollects that the child was handed to him outside of the hospital. The parents' names were entered on the child's birth certificate in Country C as the mother and the father of the child.[14]
I accept the evidence of Mr P that assisted reproductive technologies ("ART"), which include surrogacy arrangements, are legally recognised and regulated in Country C through several legal instruments referred to in his affidavit. Country C law provides a legal basis for the artificial insemination and embryo implantation. The current law of Country C provides that the official parents of a child born because of the surrogacy treatment are the spouses who have consented to the embryo transfer to the surrogate mother, and the Rules provide for the specific procedure for the registration of the birth of the child. The surrogate mother and her spouse do not have any rights to the child born through an application of ART, including surrogacy treatment. The only official parents are the spouses who have consented to the embryo transfer and have a genetic connection with the child.
I accept the evidence of Ms N about her personal circumstances at the time the surrogacy procedure took place, and following the child's birth in 2022. I accept her evidence that she voluntarily entered into the surrogacy agreement and that she is aware of the parenting proceeding in this Court and has been provided with a copy of the parents' respective applications, and that she does not wish to be involved in the court proceedings.
Each parent provided evidence in their trial affidavit about their personal circumstances as required by Rule 1.10 (2) (b). The report of the Parentage Testing Procedure prepared for the purposes of s.69ZB(b) of the Act is in evidence.[15] The parentage testing was carried out in accordance with the Regulations and has established that the father is almost certainly the biological father of the child. The Independent Children's Lawyer tendered a letter from the Australian Government Department of Home Affairs in 2022 which informs that the child has acquired Australian Citizenship by descent and is entitled to apply for an Australian Passport.[16]
The parents returned to Australia with the child in 2022 and have since resided with the child in New South Wales.

[62]

In this background, statements of fact are to be construed as findings, unless otherwise stated.
The applicant mother is 53 years old. She lives at 2 B Street, Town D, New South Wales in a home she purchased in 2018. The mother is self-employed. She is the sole director and shareholder of her company and runs a homewares business. On average, the mother currently works 10-15 hours each week, and she can mostly work from home. Her warehouse is situated about 10 minutes' drive away from home.
The respondent father is 51 years old. He lives in rental accommodation at 1 B Street, Town D which is diagonally opposite the mother's home. The father shares his accommodation with the paternal grandmother, who assists the father with the care of the child. The father has received a disability support pension for many years due to a mental health condition. He currently works about 15 hours each week as a self-employed community worker.
In mid-2013 the father was convicted in City R District Court of aggravated break and enter and commit serious indictable offence-inflict actual bodily harm. He was sentenced to imprisonment for a short time suspended on him entering a s.12 Bond.[17] The offence was committed In late 2012. During this proceeding the father significantly minimised the seriousness of his offence, and demonstrated no remorse for his offending.
The parents have provided divergent accounts about when they met, and when they commenced living together, and when they finally separated. Relevantly, in February 2020 the parents commenced the process of surrogacy to conceive the child. The parents married in 2020.
The mother asserts that the parents separated finally under the one roof in mid-2022 when the child was an infant. The father says that the parents separated finally in April 2023.The parents agree that their relationship deteriorated very significantly in mid- 2022, almost immediately after their return to Australia with the child. The co-parenting journey has been very challenging. The parents have been engaged in bitter conflict with one another while learning to be parents to their very young child.
In April 2023 the maternal grandmother, who was staying at the former matrimonial home, was attending to the child when the father allegedly used his right elbow to nudge her out of the way, knocking her off balance and causing her to stumble. The father denies this incident, which was reported to police in April 2023.
In early April 2023 the mother left the home with the child and went to stay with the maternal grandmother and her partner in their small retirement home near City S. The mother says that she did not have the money to rent elsewhere.[18] She felt desperate to move back into the former matrimonial home and returned with the intention to live there in April 2023.
In April 2023 there was a melee at the former matrimonial home, involving the mother and her family members and the father. The mother, her siblings and their friend were charged with offences against the father. A Provisional Apprehended Domestic Violence Order ("ADVO") was made for the protection of the father against:

[64]

Between April 2023 and 18 May 2023, the mother was excluded from the former matrimonial home and the child lived there with the father and had no contact with the mother.
On 27 April 2023 the mother filed an Initiating Application in which she sought final and interim parenting orders and property orders. The mother proposed that she have sole parental responsibility for the child, and that the child live with her. On an interim basis, the mother proposed that the father return the child to her care, and that the child spend supervised time with the father. The mother sought a non-denigration order, and orders that the father undertake tests to detect the use of illicit drugs and excessive alcohol. The mother proposed an order that she authorise the child's medical practitioners and specialists to discuss all matters pertaining to the child's health with the father and provide him with reports.
In mid-2023 a Provisional Apprehended Domestic Violence Orders ("ADVO") was made against the father for the protection of the maternal grandmother Ms G in the mandatory terms and not to approach or contact Ms G except through a lawyer.[23]
On 5 May 2023 the father filed a Response to Initiating Application in which he sought interim and final parenting orders which were identical in form to the orders sought by the mother, but with the structure of the proposed arrangements reversed.
On 8 May 2023 an order was made by consent restraining the parents from denigrating each other and from discussing the proceedings with the child. Without admission, the parents were ordered to submit to hair follicle drug testing within 48 hours and supervised urinalysis drug screening by 4pm on 9 May 2023. The parents were restrained from using illicit drugs, or unprescribed medication, or alcohol withing 24 hours of spending time with the child. An Independent Children's Lawyer was appointed.
On 9 May 2023 the mother provided a three-centimetre sample of her hair for hair follicle testing which produced a negative result for all classes of drugs tested.[24]
On 16 May 2023, following an interim defended hearing, pending delivery of judgment and by consent the court ordered that the child spend time with the mother as agreed and failing agreement for a block period of three nights commencing 18 May 2023 and a further overnight on 23 May 2023.
On 21 May 2023 the father reported to police that when the parents met to changeover the child at Town D Reserve, he initiated a recording on his phone and that the mother had harassed and intimidated him during their brief conversation. At the father's request, police attended the changeover at 5.00pm on the same day to prevent a breach of the peace, and made observations about the mother's conduct which are discussed further.
On 26 May 2023 the father provided a clear hair follicle test.
On 31 May 2023 by consent the parents were ordered to enrol in and complete a Parenting after Separation Course, if they had not already done so. Without admission, the mother was ordered to enrol in and complete an anger management course. The court ordered that the child live with each parent in an equal time two-three-two arrangement, with changeover at daycare or at Town D Caravan Park. The parents were ordered to undertake hair follicle drug testing when requested by the Independent Children's Lawyer not more than once every three months. The father was ordered to vacate the former matrimonial home within 28 days and was restrained from approaching or entering the property, on condition that the mother pay all outgoings for the property and pay $10,000 to the father, characterised as interim property settlement pursuant to s.79 of the Act. The court ordered a Child Impact Report.
On 10 August 2023 an interim order was made by consent that the parents enrol the child into W Day Care, Town Y, and if not possible then at Z Day Care, and that changeover on Tuesday and Thursday occur at daycare, and otherwise at the bottom of the driveway at the mother's residence. The parents agreed to communicate using MyWizard app and were restrained from using the app to denigrate one another. The parents also were restrained from consuming alcohol to excess or using illicit drugs 24 hours prior to and while the child is in their care, and from recording each other at changeover, except the mother was permitted to instal CCTV cameras at her residence. Dr L was appointed single expert witness to prepare a report relating to the welfare of the child.
On 10 August 2023 the parents were ordered to attend upon their treating medical practitioner and obtain a referral to a psychologist and provide the name of the psychologist to the Independent Children's Lawyer.
On 17 August 2023 the mother commenced a course of cognitive behavioural therapy with Ms J. Between late August 2023 and 18 September 2023 the mother completed the Making Choices, Parents not Partners and Circle of Security courses.
On 30 October 2023 Dr L finalised his single expert family report.
In late 2023 a Final ADVO was made against the father for the protection of the maternal grandmother for a period of two years, which remains in force until late 2025.[25]
In late 2023 a Provisional ADVO was made against the father for the protection of the mother and the child in the mandatory terms and not to approach or contact unless the contact is as agreed in writing about contact with the child.[26]
In late 2023 a Final ADVO was made against the father by consent and without admission for the protection of the mother and the child for a period of two years, in the mandatory terms and not to approach or contact unless through a lawyer, or for purposes of counselling, mediation conciliation or pursuant to a court order. The Final ADVO remains in force until late 2025.[27]
In late 2023 a Provisional ADVO was made against the father for the protection of the maternal grandfather Mr Nash, in the mandatory terms, following an incident in late 2023, which is discussed further.
On 15 December 2023 the father completed the Parents not Partners course.
In late 2023 a Final ADVO was made against the father by consent and without admission in the mandatory conditions for the protection of the maternal grandfather and remains in force until late 2025.[28]
On 5 February 2024 the Court ordered that the parents confer for the purposes of identifying a joint single expert to prepare a report on the mental state of each of them and the impact of any identified issues on their parenting capacities. Dr K, was duly appointed and prepared a report which is dated 4 July 2024.
On 5 February 2024, the parents were ordered to submit a sample for hair follicle drug testing.
On 20 February 2024 the mother provided a hair sample for hair follicle testing which produced a negative result for all drugs tested.
In early 2024 the mother was found guilty of charges of common assault, one charge of contravene ADVO and one charge of stalk/intimidate, due to her conduct in August 2022 and April 2023. Without conviction, the mother was sentenced to a conditional release order. A Final ADVO was made against the mother for the protection of the father for two years which remains in force until early 2026. The ADVO is in the mandatory terms and not to approach or contact the father unless ordered by the court about contact with the child.[29]
On 3 April 2024 the father provided a negative hair drug test.
On 21 June 2024 the father completed all but one week of the Circle of Security course.
On 30 September 2024 the mother commenced parenting counselling at E Centre.
On 12 October 2024 the mother completed the Triple P Parenting course.

[65]

Before dealing with the evidence in further detail, I make the following comments about parents as witnesses in their case.
The mother impressed me as an honest, straightforward, child focussed and credible witness. She provided calm, consistent and plausible evidence, and made appropriate concessions. The accuracy of the mother's evidence was not found wanting, including with respect to the history she provided to each of the three expert witnesses in this matter.
The mother admitted that her conduct at times has been unacceptable, and she expressed her genuine remorse. She readily conceded that her emotions got the better of her. The mother provided evidence of several programs she has undertaken to address her conduct and improve her capacity to regulate her emotions. I am satisfied and find that the mother has developed insight into what triggers her anger and has benefitted from the anger management course and the lengthy course of counselling and other programs she has completed during the course of this proceeding.
The mother has accepted full responsibility for her actions, including her part in the parental conflict. She has taken appropriate and effective action to address her shortcomings. I accept the mother's evidence that she feels that she is mentally well, and I accept the evidence of the mother's treating psychologist that the mother is mentally well.
The mother resisted any temptation to denigrate the father's parenting capacity, or his relationship with the child and was able to provide examples of his positive parenting practices and attributes.
The father proved himself to be an unsatisfactory witness. During cross-examination he prevaricated and was warned on several occasions to provide a responsive answer, and not to argue with counsel. He advocated his own case from the witness box, including by re-iterating on multiple occasions that he is the victim of family violence perpetrated by the mother, which is an agreed fact.
Whereas the mother took full responsibility for her abusive and violent behaviour and her role in the parental conflict, the father has not acknowledged that he perpetrated family violence, and has chosen not to take personal responsibility, and he sought to deflect all responsibility for the continuing parental conflict onto the mother. The father continually portrayed himself as the victim.
In his affidavit and throughout his oral evidence the father disparaged the mother and sought to diminish her role as a parent. He minimised his role in the parental conflict and took no responsibility for his past behaviour. The father minimised his past conviction for a violent offence against a former partner and demonstrated no remorse.
The father failed in his duty to disclose relevant information about his mental health diagnoses and medication regime and misled the single expert witnesses. He neglected to make appropriate concessions about his mental health history until he was confronted with a document which the mother had taken the trouble to obtain and then gave oral evidence which was confusing and obfuscated the true position. The father gave implausible evidence about the reason why he has been in receipt of a disability support pension for more than a decade, and about his drug use.
The trial was prolonged because of the way the father gave his evidence in cross-examination and due to his failure to make full and frank disclosure about his mental health.

[70]

When the mother returned to the former matrimonial home in April 2023, after leaving with the child to stay with the maternal grandmother near City S, she changed the locks while the father was elsewhere. When the father arrived home there was a melee, and as noted previously police attended and charged the mother, her two siblings, and a family friend, and obtained a Provisional ADVO against each offender for the protection of the father. The mother has accepted that her behaviour was unacceptable and has expressed her remorse, and the Court accepts that the father was manhandled and assaulted and that it was a horrible and a traumatic experience for him.
The mother credibly denied the father's assertion that she "hammer punched" him in February 2023 or threatened him with a knife in April 2023, and I am not satisfied that either of those events took place as alleged by the father.
The child did not spend any time with the mother from April 2023 until interim orders were made on 18 May 2023. On 21 May 2023 the parents met to changeover the child at 5.00pm, and the police attended to keep the peace after the father reported that the mother had harassed and intimidated him while he was recording her. The police record that the mother became hostile towards them and made comments about the ongoing legal matters. When the father was attempting to leave the changeover location the mother opened the door and sat in the front passenger seat of his vehicle and said that she wanted to talk about the child's needs. The father declined and asked the mother to get out of his car. The police directed the mother to exit the car, and she did, but she again attempted to communicate with the father, and police observed that he appeared panicked, startled and hesitant to move.[34]
The father has accused the mother of referring to the paternal grandmother as "nanny goat" and making goat noises at changeover on 30 June 2024. In cross-examination the mother admitted that she did refer to the paternal grandmother as "nanny goat" and denied making goat noises. She said that the reference was not intended to be abusive and was an "endearing comment". The father did not call the paternal grandmother to give evidence in his case, so I have no evidence to assess how the paternal grandmother perceived the mother's comment. This is the final specific allegation the father makes concerning allegedly abusive conduct by the mother.
When the father spoke with Dr L, he denied that he has historically perpetrated family violence. The father:

[75]

Much time was spent during the trial on the continuing parental conflict at changeovers.
The mother provided evidence from two witnesses who have regularly been present at changeovers and have observed the behaviour of both parents. Notwithstanding that the paternal grandmother lives in the father's household and has accompanied the father during most, if not all, changeovers and her evidence may have assisted the court, and noting that she was present in court during the trial, the father chose not call the paternal grandmother give evidence in his case.
Mr F provided an affidavit in support of the mother's case and was cross examined at the hearing. Mr F has known both parents for several years and considered them both his friends. After the mother asked him to help and told him that she was afraid of the father and didn't want to attend changeovers alone, Mr F agreed to attend to witness some of the changeovers. I accept Mr F's evidence that, in circumstances where he was a friend of both parties, he thought that he could be "a good buffer and there would not be any issues at changeover".
Mr F has been present for somewhere in the vicinity of 20 changeovers. During changeovers at the caravan park he observed the father appeared quite angry and that the changeovers were very tense. He observed the father scowling at the mother, and heard the father tell the mother in words to the effect that she would be arrested.
During 2023 Mr F attended changeovers at the bottom of the mother's driveway. He observed that the father appeared angry and prolonged the changeover. He has seen the father hold the child tightly facing away from the mother, and the child straining to see where the mother is. He observed the father to be impatient and aggressive when removing the child from his pram and he has frequently observed the child distressed at changeover. He has observed the father and his mother scowling at the mother.
Mr F was a straightforward witness, whose evidence was not diminished in cross-examination. I consider that Mr F has provided an honest and accurate account of his observations.
Ms H filed an affidavit in support of the mother's case and was not required for cross-examination at the hearing. Ms H is the mother's tenant, and lives about five minutes' walk away from the parents' respective homes in B Street. In September 2024, the mother asked Ms H to attend changeover with her, and since then Ms H has been present at changeovers approximately three days each week.
Ms H has observed that the paternal grandmother mostly accompanies the father to changeover. She observes tension between the parents, and the father holding the child tightly towards his chest while the child tries to turn his head towards the mother. She observes that the father prolongs changeover, and that the child becomes distressed. She observes that the father appears impatient and aggressive when removing the child from his pram, and has heard the father say "He doesn't want to go with you." She observes that the father and his mother frequently look towards the mother with angry expressions.
I accept the evidence of the mother and her two witnesses and find that the father does not shield the child from exposure to his negative and aggressive attitude to the mother at changeover. There is no cogent evidence that the mother has instigated conflict at changeover since mid-2023, nor is there any cogent evidence that the mother has behaved inappropriately towards the father or any other person since that time. I am satisfied that since mid-2023 it is the father who has exposed the child to parental conflict at changeover.
There is further cogent evidence provided by the mother about the father's aggressive and dysregulated behaviour in the context of the parental conflict.
Mr Nash, who is the maternal grandfather, provided an affidavit in support of the mother's case, and he was cross-examined at the hearing. Mr Nash is retired and lives in City BB, New South Wales.
In March 2023, when Mr Nash stayed in the former matrimonial home for two days, he distinctly recalls hearing the father say to the mother "You aren't even [X]' mother" and "you are a hopeless mother." Mr Nash was not challenged about this evidence, and I accept it.
Mr Nash observed the father recording the mother using his mobile phone, which is consistent with the father's evidence that he commenced recording the mother in August 2022.
Between July 2023 and November 2023, Mr Nash frequently stayed with the mother at Town D. He observed that she was upset when the father moved to live in a property diagonally opposite the mother's home. Mr Nash has occasionally cared for the child while the mother attended to her business for a few hours. In cross-examination, Mr Nash said with obvious affection and pride "I love the little bloke."
In November 2023, Mr Nash alleges that the father drove a car on the wrong side of the road towards Mr Nash's car which caused Mr Nash to fear a collision. The father denies the allegation.[38] Mr Nash reported the matter to police. By consent and on a without admission basis there is a Final ADVO in place against the father for the protection of the Mr Nash which remains in force until late 2025.
I consider that Mr Nash provided the Court with truthful and accurate account of his observations and experiences with the father, and I accept his evidence.
Ms G, who is the maternal grandmother, provided an affidavit in support of the mother's case, and was not required for cross-examination at the hearing. Ms G is retired and lives at Suburb CC near City S, New South Wales.
Ms G describes the incident in April 2023 when the father used his elbow to push her out of the way while she was changing the child. She says that she stumbled backwards, but did not fall to the floor. She felt shocked and the mother was upset and shouted at the father. Subsequently, the mother and the child left with Ms G and travelled to her home, where mother and child remained until about April 2023.
Ms G reported the incident to police, and the father was charged with assault. An ADVO was made against the father for the protection of Ms G. The charge was proven in the Local Court and later quashed on appeal in the District Court. As noted previously, there is a Final ADVO against the father for the protection of Ms G which remains in force until late 2025.
In November 2023, Ms G was visiting the mother and the child at Town D. Ms G was in the car with the mother, who was driving to Town DD nearby. Ms G says that she saw the father driving and recalls his car swerving in the direction of the mother's car, causing the mother to brake suddenly and take evasive action to avoid a collision. Ms G felt shocked. The incident was reported to police.
On several occasions since about mid-2023 Ms G has witnessed changeover of the child between the parents. She has observed tension between the parents, and that the father appears very angry. She observed that the father holds the child so that the child cannot see the mother and holds onto the child for longer than is necessary for the purposes of changeover.
I accept Ms G's unchallenged evidence. Ms G's evidence is consistent with the evidence provided by the mother and Mr Nash, and consistent with evidence of the other witnesses who have attended changeover.
In addition to finding that the father has exposed the child to parental conflict at changeover, I am satisfied that he has driven his car in a manner which was calculated to cause the mother and her parents to be fearful, the that he has further demonstrated his aggressive, entitled and disrespectful attitude to the mother by choosing to access her work emails after separation without her consent. I do not discount the possibility that the father has deliberately read email correspondence sent between the mother and her solicitor.[39]
In cross-examination the mother provided thoughtful and cogent evidence about some of the strategies she uses to manage conflict with the father, including changing her attitude, resisting any temptation to make a sly comment, and "switching off and only speaking for herself". The mother considers that limiting the number of changeovers and opportunities for the parents to encounter one another will assist in reducing the child's exposure to parental conflict, and she proposes that as far as possible changeovers should occur at the child's day care centre.
The mother has consistently expressed her concern about the impact of the father's mental health on his behaviour and his parenting capacity. She has reported that the father has a diagnosis of schizophrenia and was addicted to cannabis during their relationship. While the mother does not contend that the father's mental health condition places the child at an unacceptable risk of harm, she remains concerned about the possibility that the father's mental health contributes to his erratic, aggressive and irrational behaviours.

[88]

In cross-examination, Dr K confirmed that the father did not disclose that he was diagnosed with schizophrenia and prescribed risperidone, nor did he disclose that he had been diagnosed with bipolar. Dr K confirmed that risperdal[47] is an anti-psychotic medication which is not prescribed as a first line of treatment for depression.
Dr K observed the importance of an expert being provided with accurate and truthful information upon which to base his assessment, noting his role is to assist the Court. He observed that the father's lack of candour raises questions about the father's character, and has affected the assessment of risk, because without proper information the expert cannot make a proper judgment.
While Dr K said that he is somewhat sceptical about the diagnosis of schizophrenia and bipolar and has some doubt about those diagnoses. While the father presented with a paranoid stance, he did not present with any other symptoms of either condition. The father has not been receiving treatment,[48] and his alleged history of substance misuse is known to increase the risk of relapse. Nevertheless, the diagnosis does raise concern, including possibility of recurrence, because a person who has had a psychotic illness at one time in their life is more likely than the general population to have a relapse. This does not mean that the father will suffer a recurrence, but there remains some risk. Dr K said that if the Court found that the father has an ongoing diagnosis of schizophrenia and bipolar which has been left untreated then that would raise concern from a risk perspective.
The assessment of the father's mental health condition, and the impact of any such condition on the father's parenting capacity has been confounded by his lack of candour. In summary, Dr K said that at the very least it appears that the father has difficulty prioritising his own needs over the child's, by virtue of him not providing truthful and accurate information to an expert who is enquiring into matters which are directly relevance to determining what is in the best interest of the child, and places the child at risk.
Dr K was taken to the only known facts concerning the father's criminal conviction for the offence in late 2012.[49] He considered that the documented records were certainly not consistent with the themes the father sought to portray during his interview and raised concern about the father's lack of candour and his propensity for violence.
In relation to the father's choice to take up residence in a home directly opposite the mother, Dr K said that this probably wasn't wise and goes against the concept that the father is fearful of the mother. Dr K confirmed that the father's description of the mother's involvement with the child and her mothering ability was quite disparaging and negative.
Dr K could find no evidence of major mental illness in the mother. The mother was not presenting with any ongoing feature of a major mood disorder. Dr K assessed that the mother's personality was suggestive of personality vulnerabilities, most likely in the Cluster B range with some minor cluster C personality traits. In cross-examination Dr K explained that Cluster B includes antisocial, narcissistic, and borderline personality traits.
I find that the mother provided Dr K with a full, accurate, and truthful account of her mental health history and her circumstances, including her circumstances during the relationship with the father.
I find that the father mislead the single expert psychiatrist, and the Court, about his mental health history, including as to his diagnoses and treatment, and that this has resulted in a situation whereby the Court cannot come to a fully concluded view about the history of the father's mental health and the impact of his mental health on his parenting capacity.

[92]

The father's presentation and attitude to the mother which Dr L describes is entirely consistent with the father's presentation and attitude in the witness box. The father was argumentative and took every opportunity to advocate his own case and disparage the mother. In cross-examination, he reiterated his view that "everyone" perceives the mother as abusive, and he said that he has the evidence. I pause to note that the father was the only witness in his case, and he produced no such evidence.
In cross-examination, Dr L confirmed that the father's presentation raised concern about his ability to foster the child's relationship with the mother, and that the father's suspicious, mistrusting and hostile attitude to the mother would be reflected in how the father interacts and communicates with her, and could have an impact on how the child's needs are met.
During the mother's interview with Dr L she expressed concern about the negative impacts of the father's mental health issues on his functioning which the father is yet to acknowledge or address.[53] When the father spoke with Dr L, he denied that he had ever been diagnosed with a mental health condition other than depression in 2005. Similarly to what he told Ms M and Dr K, the father told Dr L that he was awarded the disability support pension in relation to his depression. He reported to Dr L that he had taken prescribed anti-depressant medication for two days "but ...didn't like them" and that he had some counselling with his GP from time to time for two months but no other treatment.[54] The father told Dr L that he had "just sort of gotten over the depression ..." and that he had reported his recovery to Centrelink but "they just told me to say on it (DSP), so I did." The father expressly denied ever being diagnosed with schizophrenia and bipolar.
In cross-examination, Dr L confirmed that he was not aware that the father was diagnosed with schizophrenia and prescribed risperidol, nor that a diagnosis of schizophrenia appears to have supported the father's eligibility for the disability support pension. Dr L expressed his concern that such information was not provided during his assessment, and that the information may well have affected his assessment.
The father expressed concern for the mother's mental health, and he quite properly associated that her family violence towards him was an indication that the mother has difficulty with impulse control and emotional regulation, which the mother admits was the case at the relevant time.
The mother reported experiencing depression and anxiety in 2012. She engaged with a counsellor for 10 weeks and commenced taking prescription medication which she continued until 2015. The mother described her mental health as stable, and that she was engaging with a psychotherapist and with a women's domestic violence service and was completing an anger management course with E Centre.
Dr L acknowledged in his report that establishing the mental health of the father and the mother and any relevant impact was beyond the scope of his assessment, and he recommended that further objective information be obtained by way of reports from the parent's treating practitioners or an independent assessment.
I find that the mother provided Dr L with a full, accurate, and truthful account of her mental health history and her circumstances, including her circumstances during the relationship with the father.
I find that the father has mislead Dr L, and the Court, about his mental health history, including his diagnoses and treatment.

[95]

The mother reported that she was enrolled in an anger management course and was engaged with Ms HH, a hypnotherapist and psychotherapist.
The father reported that he had not sought professional mental health assistance for "many years" and does not believe it is necessary.[58] He told Ms M that he was in receipt of the disability support pension for an episode of depression years ago. Not surprisingly, Ms M questioned why the father remained in receipt of a disability support pension when he states that he no longer suffers from mental health concerns and has not been assessed in years.[59] Ms M assessed that "both parents minimise their mental health issues" and she hoped that they would each engage with accredited psychologists.[60]
Ms M considered that both parents were transparent about their recreational past drug use.[61]
The father spoke to Ms M about his assault charge in 2012 and said that he was "punching on" with his best friend after he discovered that his then partner and his best friend were having an affair. Ms M observed that police material recorded that the father perpetrated significant injuries to the victim.[62]
Ms M assessed that the child has experienced high levels of turmoil, including "significant aggression and uncertainty" and expressed her expert opinion, which I accept, that "it is vital for his psychological development that he is surrounded by calm, gentle and soothing environments."
Ms M reported that, due to his experiences, the child "may display hypervigilance and irritability in new environments or react strongly to loud noises or sudden movements" and "may develop considerable emotional and psychological difficulties" including "shying away from people or internalising feelings resulting in aggression or dysregulation." (sic)[63] She expressed her expert opinion that, in the longer term continued exposure to hostile environments will lead to an increased risk of the child developing poor mental health and substance abuse issues.
Ms M nominated a list of beneficial activities for the child and recommended that the child be enrolled in day care.[64]
Ms M observed that the father demonstrated warmth and spoke gently and appropriately with the child.
Both parents spoke of the child in very loving ways and each displayed distress about the circumstances surrounding the child coming into their lives. Both parents showed insight and knowledge about the child's medical condition at birth. Both parents reported that the child was meeting his developmental milestones and described the child as happy and settled. Both parents expressed concern for the child's exposure to some of their conflict and provided divergent accounts about the extent of his exposure to their arguments and incidents.[65] The parents advised that there had been some disagreements regarding childcare.[66]
Ms M noted that both parents are supportive of the child's Country C heritage and have remained in contact with the surrogate mother.[67]
I have taken Ms M's evidence into account when considering what orders to make in the best interest of the child.

[106]

The parents agree that the child was born with a medical condition. The mother deposes that when the child was two months old, she arranged for him to see a Dr JJ, a paediatrician, and that in February 2023 the father took the child to see Dr JJ for a review. The child was examined and was found to be in perfect health.[73] The child has attended at the KK Clinic to be weighed, and upon his General Practitioner Dr LL at the MM Medical Clinic in Town Y.
The mother deposes that the child's language "is somewhat delayed." She is concerned that the child's development has been impacted by his exposure to parental conflict and by the equal time parenting arrangement which has required the child to transition between parents engaged in conflict and to adjust to different parenting routines and practices. The mother has expressed concern that when the child was removed from daycare at the behest of the father and that the father's action deprived the child of opportunities to socialise and to develop his language skills.
The father believes that the child's language delay is significantly more pronounced than the mother is capable of recognising, and he has claimed that the mother is oblivious to and neglectful of the child's medical needs. The mother arranged appropriate medical assessment for the child in relation to his medical condition and since the mother commenced this proceeding she has proposed that the father be kept fully informed of matters pertaining to the child's health, which in my view demonstrates that the child's health has been fairly and squarely within the mother's contemplation.
Both parents participated in a paediatric assessment of the child conducted by Dr NN on 4 September 2024. The assessment raises some developmental issues which require early intervention and sets out recommendations about the steps which the parents should take to address the child's developmental needs and ensure that he is provided with appropriate assistance.
While the parents express divergent views about the child's abilities, including in relation to his language and comprehension skills, and are at odds about whether the child has difficulty adjusting to changes in routine and to transitioning between activities and locations, both parents have arranged specific appointments as recommended by the paediatrician and neither parent seeks to exclude the other parent from participating in the child's assessments and therapies. Both parents told the Court in their oral evidence that they intend to take the advice of the child's treating practitioners, and I have no reason to doubt that the evidence of each parent in that respect was anything other than truthful.
The parents were in dispute about the child's daycare arrangements after separation in April 2023, but that does not mean that either parent was neglectful of the child's needs. Both parents were still finding their way adjusting to parenthood in the context of their acrimonious relationship and their separation. The mother's desire for the child to attend daycare and her reasons why she considered daycare meets the child's needs is entirely legitimate, and her approach finds support in the evidence of the court child expert.
Equally, the father's views were motivated by his genuine concern that the child was not settling well into daycare. The reasons why this was the case are not entirely clear, particularly given that the child was most likely unsettled due to his exposure to parental separation and conflict and the inconsistent parenting arrangements in place at the relevant time.
Thankfully, it appears that the child is now settled in daycare, and I accept the evidence of the court child expert that it is appropriate for him to attend daycare.

[120]

I accept the evidence of Dr L and consider it very important that the child has consistency, predictability and reliability in his childcare and education. The parents have both told the Court that they will follow the recommendations of the treating practitioners, and it will benefit the child if the father is able to take on board the views of both the court child expert and the single expert in relation to the child's daycare and education.
Both parents have provided detailed evidence about the child's activities and routines when he is with each of them respectively and I consider that both parents have the capacity to provide for the child's basic needs, provided neither parent is intoxicated and provided their mental health is stable and well managed.
I am satisfied that the mother is a loving, devoted and attuned parent. I accept that the father loves the child dearly and is very devoted to caring for him.
The mother has implemented expert advice promptly. She clearly understands that there is a benefit to the child for the father to be involved in medical assessments and therapies, and the mother welcomes the father's involvement and seeks that he is kept fully informed. The mother prioritises the child's needs and I am satisfied that the mother has the capacity to meets the child's developmental needs by arranging and attending assessment and acting on recommendations so that the child is provided with appropriate assistance to help him reach his full potential.
In cross-examination, the father announced a significant alteration with respect to the parenting orders he seeks. He stated that he believes that it is in the best interests of the child to continue to spend equal time with each parent, because the child is accustomed to an equal time arrangement and does not like change. The father expressly agreed that it is his position that any significant reduction in the child's time with the mother is not in the child's best interests. The father's late change in his position was curious. Throughout the course of the parenting proceeding, he has professed his view that he is a vastly superior parent than the mother. He has asserted that the child is at risk in the care of the mother due to her mental health, and that the mother has prioritised her business and social activities above the needs of the child, and that she is an incompetent and neglectful parent who lack's insight into the child's needs. It remains unclear whether the change in the father's position came about because he experienced a revelation during cross-examination that the mother is in fact a loving, devoted and capable parent with whom the child is closely bonded, and that any reduction in the child's time with her is not in the child's best interest, or for some other reason. The reason for the father's altered position was not explored in the evidence, however the father confirmed in re-examination that he seeks a final order that the child live with each parent week about in an equal time arrangement. The father's position at the very least implies that he believes that the mother has the capacity to meet the child's needs.
The mother's capacity to meet the child's needs is, in my view, superior to the father's capacity because she has demonstrated that she values the child's relationship with the father and that she is entirely supportive of their relationship and able to promote the safety of the child, whereas the father through his own choices has demonstrated that he has struggled to prioritise the child's needs over the parental conflict, as already discussed.

[125]

At the commencement of the trial, the parties agreed that the equal time parenting arrangement was not meeting the child's needs and that it is not in the best interests of the child for an equal time arrangement to continue. Each party proposed that the child would live predominantly with one parent and spend time with the other parent.
During cross-examination the father altered his position and proposed that the equal time arrangement continue, because the child is used to that arrangement and does not like change. The father confirmed his altered position during his re-examination.
The Independent Children's Lawyer foreshadowed in their case outline document that shared decision making did not appear possible. In final submissions Counsel for the Independent Children's Lawyer confirmed that in light of the continuing parental conflict, and noting the concerns raised in the paediatric assessment report prepared by Dr NN, an equal shared care regime is not in the child's best interests.
The child is very young, and he has some additional needs. Consistency and predictability in his parenting arrangements is very important, and so is a home environment which is free from conflict.
An equal time parenting arrangement requires a high level of cooperation and collaboration between the parents. The parents must be able to communicate with each other in a calm, constructive and respectful manner. In this case, there is a pattern of entrenched conflict and there had been no significant improvement in the co-parenting relationship at the trial. There is little information available to suggest that there is likely to be any marked change in this dynamic in the future.
The father does not trust the mother. He chooses to denigrate her and undervalue her parenting role.
The mother values the father's role in the child's life. She has demonstrated a respectful and nuanced attitude to the father. I accept the mother's evidence that she is willing to work collaboratively with the father, but this has not been possible due to the barriers to communication which are presented by the father.
Both parents impressed as wanting what is best for the child, and they have different views on how to meet the child's needs. If the child continues to live in an equal time arrangement, there will be greater opportunity for him to be exposed to conflict and the poor co-parenting relationship. The negative impacts on the child of exposure to parental conflict may include delay in having his needs met due to the parents' inability to reach agreement about what his needs are and how the child's needs ought to be addressed. As the child matures he may experience loyalty binds which will negatively impact his relationships with both parents, and behavioural difficulties due to the constant stress, confusion, anger and sadness caused by being the object of the adult conflict and, in the longer term, poor mental health, adverse educational outcomes, substance abuse, and difficulties forming relationships with other people when he is an adult.
The father has not been transparent in relation to his past, and he lacks insight into his difficulties. He has prioritised the parental conflict over the needs of the child, and maintains a suspicious, mistrustful and hostile attitude to the mother which has implications in terms of his capacity to consistently meet the child's needs, including by promoting the child's relationship with the mother and shielding the child from entrenched parental conflict. Further, the father's lack of candour raises issues relating to the child's safety in the father's care.
The mother has been transparent about her conduct and her mental health, and she has demonstrated that she is functioning well. She has acknowledged and addressed her past behaviour by undertaking courses and obtaining therapeutic assistance. The mother has demonstrated her capacity to prioritise the child's needs over her own, including by promoting and facilitating the child's positive relationship with the father.
I consider that it is in the best interests of the child to live primarily with the mother.

[126]

The child is accustomed to spending no more than three nights away from either parent and he is observed and assessed to have a strong bond with both of his parents, and to derive benefit from his relationships with both parents.
The mother's proposal that the child spends time with the father for three nights each alternate week would most likely ensure that the child experiences one stable and consistent household and reduces the frequency of changeovers which require the child to transition between the two diverse households and adapt to the different households and reduces the risk of regular exposure to conflict. An obvious disadvantage of the mother's proposal is that the child will not spend time with the father for eleven consecutive nights, which I consider is a very long time for such a young child, and is an arrangement which would inflict a significant change in the child's living arrangements.
When the mother spoke with Dr L she proposed that the child would spend time with the father from Friday to Sunday each fortnight and one night in the alternate week.[91] In my view, that proposal is more likely to meet the needs of the child, taking into consideration the benefit to him of having a meaningful relationship with both parents provided the child is safe.
Spending one night with the father during the off week, in my view, is unlikely to provide sufficient time for the child to re-settle with the father. Any benefit to the child of spending an extra night with the father in the off week to allow greater regularity in the child's time with the father might be outweighed by burden on the child cause by transitioning between the households without the opportunity to settle.
I consider that if the child spends two nights in the father's household during the off week the child will have greater opportunity to settle and the burden of transitioning between the households will be outweighed by the opportunity to spend more regular time with the father and settle into his care.
On balance, I consider that it is in the best interests of the child to make a parenting order that the child spend time with the father each alternate weekend from Friday to Monday and for two nights each alternate week from Wednesday afternoon through to Friday morning. The child will spend no longer than seven consecutive nights away from the father in any given period, and no longer than three consecutive nights away from the mother, which I consider will meet the child's need for consistency and routine and maintain his strong bond with both parents. I consider that there is a benefit to the child to maintain consistency in his daycare and educational arrangements, and that the child's developmental and educational needs will be met if he is able to attend daycare, preschool and school on each day that he is enrolled, regardless of which parent he is with, unless the child is unwell or the parents have agreed in writing that his attendance is not required for some proper reason. I will make an order which requires the father to ensure that when the child is spending time with him, the child attends daycare, pre-school and school each on each day he is enrolled.
Once the child is enrolled in formal schooling, on the current state of the evidence I consider that it will be of benefit to the child to spend block periods of time with the father during the school holidays, and I will make an order to that effect.
The risk of exposure to parental conflict will be minimised if changeovers occur at the child's daycare, pre-school or school on school days, in accordance with each party's proposal, and I will make an order by consent to that effect, and an order that changeover occur at the Town D Hotel on days when the child is not at daycare, pre-school or school.

[129]

I accept that the mother has provided an honest and accurate description of the parental communication in above passage. The evidence which the father provided impels the conclusion that he oscillates in his view of the mother, and that he continues to hold strong unresolved and ambivalent feelings towards her.
The parents have had an acrimonious relationship since they separated and despite having the benefit of preliminary advice from the court child expert Ms M about the negative impacts on the child of being subjected and exposed to ongoing parental conflict and the high importance of protecting him from such conflict, the child has been exposed to conflict since.
The father is yet to acknowledge and accept responsibility for his past conduct. I have accepted the evidence of the mother and her witnesses that the father behaves in an angry, impatient, disrespectful, and immature way during changeovers when the mother is present, which is why changeovers at the child's day care or school will be preferable in the future.
When the mother commenced the current proceeding in April 2023, she sought an order that she have sole parental responsibility for the child, and that she authorises the child's medical practitioners and specialists to discuss all matters pertaining to the child's health with the father and provide him with reports. The mother is aware that the child's health is very important, and she accepts that both parents must be kept informed of matters pertaining to the child's health and participate in assessments and treatments.
Contrary to the father's assertions that the mother lacks insight into the child's needs, I am satisfied and find that the mother identifies the child's needs and that she is willing to arrange and participate in assessments of the child and act on expert advice.
The child will live with the mother and I find that it is appropriate and in the best interests of the child that the mother is allocated responsibility to make major long-term decisions relating to him, and that she will keep the father informed with respect to such decisions and invite his input.

Nash & Phoenix [2025] FedCFamC2F 1071 (8 August 2025)

At a glance

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Judgment (152 paragraphs)

Legislation Cited (2)

Cases Cited (1)