BALDWIN & BALDWIN

[2014] FamCA 43

FAMILY COURT OF AUSTRALIA

BALDWIN & BALDWIN [2014] FamCA 43

FAMILY LAW – CHILD ABUSE – Allegations – Where the mother has made allegations of sexual abuse against the father.
FAMILY LAW – CHILDREN – Parental Responsibility – Where there is a finding of family violence between the parents – Where it is not in the child’s best interest for the parents to have equal shared parental responsibility – With whom the child spends time – Best interests of the child – Where the father has been spending supervised time with the child – Parental anxiety – Where the mother states that her anxiety about the child spending time with the father will affect her ability to parent – Where the Independent Children’s Lawyer recommends interim orders be made – Where the mother seeks an order permitting the child to travel internationally – Where an order is made for the child to obtain a passport.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Marsden & Winch (No 3) [2007] FamCA 1364
Russell & Close (Unreported, Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, 26 June 1993)

APPLICANT: Mr Baldwin

RESPONDENT: Ms Baldwin

INDEPENDENT CHILDREN’S LAWYER: Clare Dart

FILE NUMBER: BRC 5185 of 2010

DATE DELIVERED: 6 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 April, 1-3 May and 17-18 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: WP Lawyers

COUNSEL FOR THE RESPONDENT: Ms Carew

SOLICITOR FOR THE RESPONDENT: Keating Lehn

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

That until further order

1. The child L born … September 2008 (“the child”) shall live with the mother.

2. The mother shall have sole parental responsibility for all “major long-term issues” (as that term is defined in the Family Law Act 1975) in relation to the child.

3. In exercising sole parental responsibility in relation to the child:

   (a)The mother shall advise the father, in writing, of the necessity to make a decision, the proposed outcome of such a decision, the reasons for the proposal and any documentation available to assist with the making of such decision;

   (b)The father shall reply, in writing, to the mother within 14 days of receipt of her written advice;

   (c)The mother shall give consideration to the father’s reply; and

   (d)When the mother has made the decision, she shall write to the father and advise him of the decision, the reasons for the decision and how she has considered the father’s reply, within 7 days.

4. The child shall spend time with the father as follows, unless otherwise agreed between the parties in writing:

   (a)On four occasions for 2 hours between 10.00 am and 2.00 pm each Saturday, commencing the first Saturday after the date of these Orders, supervised by Ms B for 30 minutes at the commencement of such time and for 30 minutes at the conclusion of such time, with the father being at liberty to take the child out of the residence of Ms B for a 1 hour period in the company and under the supervision of the paternal grandmother and/or the paternal grandfather; and thereafter

   (b)On eight occasions for 4 hours between 10.00 am and 4.00 pm each Saturday; supervised by Ms B for 30 minutes at the commencement of such time and for 30 minutes at the conclusion of such time, with the father being at liberty to take the child out of the residence of Ms B for a 3 hour period in the company and under the supervision of the paternal grandmother and/or the paternal grandfather; and thereafter

   (c)For 6 hours between 10.00 am and 5.00 pm each Saturday, supervised by Ms B for 30 minutes at the commencement of such time and for 30 minutes at the conclusion of such time, with the father being at liberty to take the child out of the residence of Ms B for a 5 hour period in the company and under the supervision of the paternal grandmother and/or the paternal grandfather; and

   (d)In the event that either of the paternal grandparents is not available to be present and supervise the child’s time in the father’s care then the child’s time with the father shall instead be supervised by Ms B.

5. Ms B’s fees for the provision of the supervision provided for in paragraph (4) above shall be paid by the father.

6. In the event that Ms B ceases or suspends her services as a private contact supervisor, the parents shall forthwith do all things necessary for intake into the C Contact Centre where supervision such as was to be provided by Ms B pursuant to paragraph (4) above shall be facilitated at the father’s expense.

7. That the parents of the child shall keep each other informed of matters pertaining to the child through a book, styled a “communication book”, that is to be obtained by the mother before the first time the child is to spend time with the father pursuant to these orders, with the book to travel between the parents with the child, each time he spends time with the father. 

8. That each parent is restrained from denigrating the other parent or any member of the other parent’s family to, or in the presence of, or within the hearing of the child and each parent shall ensure that the child is not exposed to any such denigration by third parties.

9. The parents shall keep each other informed of the address at which they reside and a telephone number at which they can be contacted, informing the other in writing of any change to those within 24 hours of any such change.

10. The father is restrained from utilising any physical discipline on the child when the child is in his care.

11. The father shall forthwith provide to the solicitors for the mother and to the Independent Children's Lawyer written confirmation of any parenting course he has completed since the conclusion of the trial in these proceedings and, if he has not completed the Triple P parenting course, then he must do so within six months of the date of these Orders and provide written confirmation of its completion to the mother’s solicitors and the Independent Children's Lawyer as soon as it is completed.

12. The father shall obtain and provide to the mother’s solicitors and the Independent Children's Lawyer within 28 days of these Orders, a written report from Mr D, psychologist, that includes details of:

    (a)       The dates of all of the father’s attendances upon Mr D;

    (b)The reasons recorded by Mr D as given by the father for his attendances upon him;

    (c)Any recommendations Mr D made to the father and Mr D’s assessment as to whether or not the father has put such recommendations into practice and if so, the basis of that assessment;

    (d)Mr D’s assessment of the father;

    (e)Mr D’s recommendations for any further assistance the father may benefit from.

13. In the event that Mr D recommends the father attend further sessions with him and/or other health practitioners, then the father is to attend upon him or such other health practitioners as recommended.

14. Should the psychologist, Ms E, recommend that the mother attend upon her or continue to attend upon her following the making of these Orders the mother shall attend upon her as recommended.

15. The Independent Children's Lawyer may provide Mr D and Ms E with copies of the reports of Dr F and Ms G that were evidence in these proceedings, in addition to copies of these Orders and the reasons for judgment.

16. That at the expiration of six calendar months from the date of these Orders, each of the parents, the paternal grandparents and the maternal grandfather shall attend upon Ms G or, if Ms G is unable or unwilling to provide a further family report in this matter,  such other family report writer as they may be directed by the Independent Children's Lawyer, so that a further family report may be provided to the parties and this Court for consideration in determining the final orders to be made in these proceedings and the child shall be made available for such interviews as directed by the report writer and/or the Independent Children’s Lawyer.

17. If another family report writer is required to be engaged by the Independent Children's Lawyer for the purposes of providing a further family report as ordered, the Independent Children's Lawyer shall provide copies of Dr F’s report, Ms G’s two reports, the trial affidavits of each of the parents and these Orders and reasons for judgment to such report writer prior to the conduct of interviews for the report.

18. The cost of the provision of the further family report shall be met in equal shares by the parents, in the event that Legal Aid Queensland will not meet that cost.

19. The father shall do all things necessary to join with the mother, at her request, including signing the necessary application forms, in obtaining a passport for the child from the Australian Government and the mother shall retain that passport in her possession.

20. The matter is adjourned to 10.00 am on 1 September, 2014 for further hearing, if necessary, over two days on 1 and 2 September, 2014, with the matter to be mentioned prior to that at 9.30 am on 16 July, 2014 for the making of any further trial directions considered necessary.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Baldwin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 5185 of 2010

Mr Baldwin

Applicant

And

Ms Baldwin

Respondent

REASONS FOR JUDGMENT

1. The parents of 5 year old L, (“the child”) separated in early January 2010 when the child was only 15 months old. They have not been able to agree on the appropriate parenting arrangements for their child ever since.

2. Their dispute ultimately brought them to this Court, via transfer from the Federal Magistrates Court (as it was then called). A trial of their competing parenting orders applications was heard by me over three days in late April-early May of 2012 and concluded over two more days in mid-September 2012.

3. My judgment has been reserved since that time, principally due to the responsibility of hearing and determining so many other cases in the period since the trial finished, and the lack of time otherwise available to consider the matter and to write these reasons. I appreciate the distress that the long delay in delivering judgment in the matter will have caused the child’s parents and other members of their extended families, in addition to the distress that their parenting dispute and their involvement in proceedings in this Court will already have been causing them. I regret the delay and apologise for it. It is to be hoped that delivery of this judgment enables the parties to move forward with their lives with some additional clarity.

4. The matter came to trial as the parents were unable to agree how parental responsibility in respect of the child is to be exercised or what time and under what circumstances the child is to spend with his father. Central to the determination of these issues in this case are the mother’s allegations that making orders for the child to spend unsupervised time with his father would place the child at an unacceptable risk of being sexually abused by his father, being physically abused by his father and being emotionally harmed, either by his father’s behaviour towards him or as a consequence of the mother’s likely emotional response to such orders. To add relevant context, it must be observed that between the date of separation of the child’s parents in January 2010 to the end of the trial in September 2012, the child had spent no time with his father that was not supervised. I expect that since the trial ended, he has still not had any time with his father that was not supervised.

5. At the trial, the mother and the father were each represented by solicitors and experienced counsel. The Court was also assisted by an Independent Children’s Lawyer, represented by counsel. At the end of the trial, counsel for the ICL submitted to the Court that the mother should have sole parental responsibility for all long term decisions pertaining to the health, welfare and development of the child. She also submitted that the child should start spending time with the father in increasing amounts over a period of several months to be supervised by an independent, private provider of supervision at the time of transition between the parents, and otherwise to be in the presence of the child’s paternal grandparents. The ICL’s counsel submitted that the family should then be again assessed by the single expert family report writer who had already reported to the Court and given evidence at the trial, with further consideration to be given to the matter before determining the final orders that are to be made.

6. I accept that there is much merit in the submissions made for the ICL and the orders that I intend to make will substantially reflect that.  

Some Background

1. The father was born in 1974 and the mother was born in 1973. They married in December 2001 when the father was 27 years old and the mother was 28 years old, after having known each other for some time before that, but never having lived together as a couple before their marriage.

2. The mother and the father are both actively involved members of H Religion. They met at a convention of members of that faith in 2000, around the time of the death of the mother’s mother, and they began to develop their relationship sometime later. After dating for several months, they agreed to marry and did so at the end of 2001.

3. They spent the first few years after their marriage living at the Gold Coast, some part of that time actually living with the mother’s widowed father in his home at Suburb J. In 2003, the couple moved to live near Melbourne, where they stayed for about four years. The father had spent his childhood in Victoria before moving with his parents to the Gold Coast. Later, the couple then returned to live in Queensland where they lived together in a home at Suburb K up to their separation.

4. Their only child was born in 2008, after they had been trying to have a child for some time and the mother had miscarried once. Upon separation, the mother moved out, taking the child with her to live again at her elderly father’s home on the Gold Coast. The mother and child have continued to live in the paternal grandfather’s home with him ever since. He is a retired healthcare professional and the mother, at the time of the trial, was a full-time parent, although she is a qualified professional and had worked as a professional prior to the birth of the child, both in Victoria and in Queensland.

5. At the time the mother and the father separated, the father had been in employment as a labourer, work that he had been involved in for most of the time he had been married to the mother, either as an employee or self-employed. He had not long suffered a foot injury at work and he lost his employment around that time. Thereafter, he went back to self-employment as a contract labourer and, at the time of the trial, he continued to be self-employed in this way, asserting it was his intention to remain self-employed.

6. Notably, the mother had suffered sexual abuse over a few years as a child at the hands of her own mother’s step-father. The abuse commenced when she was five and went on until she was eight years old, ceasing only when her mother caught the step-grandfather perpetrating the abuse. The step-grandfather used to live with her family and he would, from time to time, go into her bedroom and take his pants off and rub his penis on her vaginal area. He would tell her not to tell her mother as he would hurt her mother if she did. After her mother caught the step-grandfather, her maternal grandmother and her own mother agreed to send the step-grandfather away but the matter was not reported to police and was, effectively, “swept under the carpet”, using the mother’s description.

7. Although the mother and the father had each been in one relationship before their marriage to each other, this was their first marriage. The father’s first relationship had been a few years before meeting the mother. His first girlfriend was also of the H Religion faith and they had not had a sexual relationship as their religious beliefs precluded pre-marital sex. The mother had been in a relationship with a young man who was not of the H Religion faith. She asserted she had lost her virginity to this young man in a “date rape” incident that happened when he had forced her to have non-consensual sexual intercourse with him one night. The “rape” was never reported by her to police and she actually continued in a relationship with the man after that for some time. 

8. There is a great deal of disagreement between the couple about the history of their relationship, particularly in respect to the nature of the father’s personality and his behaviour towards the mother and their child during the marriage and the lead-up to their separation. The mother outlines a history of behaviour on the father’s part that she asserts led to the ultimate break down of their relationship and to which she points in support of her position that the child should not spend unsupervised time with the father. For the mother, it is argued that acceptance of her evidence about all of these matters would satisfy the Court that the child would be at an unacceptable risk of harm if he is allowed to spend time with the father without supervision of the father’s care of him. Overlaying this argument, is her further argument that her concern and anxiety for the well-being of the child if he were to start spending unsupervised time with his father, combined with her emotional capacity to cope with that concern and anxiety is such that her ability to care for the child when he is otherwise with her would be compromised. She argues that this would be to the detriment of the child’s wellbeing to such an extent as to, of itself, justify continuation of a regime of supervised time between the child and his father.

9. In addition to the affidavit and oral evidence of the mother and the father, the child’s grandparents and several other lay witnesses who were called in support of the mother’s case, there was evidence from a psychiatrist and a psychologist who were retained as single experts in the matter. There was also evidence from a psychologist the mother was seeing in the lead up to the trial that was adduced by the mother in the support of her case. I shall return to a discussion and consideration of this evidence, the determination of disputed factual issues and consideration of their impact on the process of determining the appropriate parenting orders after outlining the principles applicable to the process of determining the parenting orders to be made.

By what Principles is this case to be decided?

1. Parenting orders are sought from the Court. In deciding what parenting orders to make in relation to a child, the best interests of that child must be regarded as the paramount consideration.[1] In determining what is in the child’s best interests, consideration must be given to certain expressly listed “primary” and “additional” considerations, in addition to some other matters expressly set out in Part VII of the Family Law Act (“FLA”).[2] This process of consideration of relevant matters and determination of what is in the child’s best interests is wide-ranging. That is clear as the list of “additional” matters to be considered includes “any other fact or circumstance that the court thinks is relevant”.[3]

   [1]         Family Law Act 1975 (Cth) s 60CA.

   [2]         Family Law Act 1975 (Cth) s 60CC.

   [3]         Family Law Act 1975 (Cth) s 60CC(3)(m).

1. As wide-ranging as the process of determining particular parenting orders is, it must still be done within the constraints of the statutory framework set out in Part VII. This Part of the FLA begins with a statement of the objects of the Part and the principles underlying those objects. That statement of objects and principles is as follows: 

   S 60B (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. The determination of appropriate parenting orders must be done with these objects and principles firmly in mind. Consistent with these objects and principles, the considerations that are expressly referred to as ‘primary’ amongst the considerations are “to be accorded particular importance in determining what order will best promote the interests of the child”.[4] They are:

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

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

   [4]         Marsden and Winch (No.3) [2007] FamCA 1364 per Warnick and Thackray JJ at par 77.

3. In a parenting case where allegations of abuse of a child by a parent or allegations of there being a risk of harm to a child in the parent’s unsupervised care, are made, these two “primary” considerations and their interplay take on critical importance. 

4. Abuse of children is abhorrent and unacceptable to any right thinking person. Where it is found to have occurred or to be occurring, or where it is found that there is an unacceptable risk of it occurring, the weight to be given to the need to protect a child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children of having a meaningful relationship with the parent who is the abuser or at whose hands the child is at an unacceptable risk of suffering abuse. In 2012, statutory effect was given to this statement of principle with the amendment to s 60CC(2) of the FLA to include s 60CC(2A) mandating greater weight to be given to the second of those ‘primary’ considerations in cases commenced from that time on.

5. Of course, it must be acknowledged that not all allegations of abuse are well-founded. Sometimes parents deliberately fabricate allegations of abuse in order to gain an advantage in parenting orders proceedings. Sometimes, parents acting in good faith may make allegations that are not correct based on their misperception of information about their child. Carefully determining appropriate parenting orders in cases where abuse is alleged to have occurred or where it is alleged that there is an unacceptable risk of it occurring in the future is amongst the most onerous of the responsibilities that fall on this Court.

6. I have observed before that guidance as to how allegations of sexual abuse, in particular, are to be considered and resolved in parenting cases, where the best interests of the child is the paramount consideration, was given by the High Court in M v M[5] in 1988 and by the Full Court of this Court in a number of cases subsequent to that High Court decision.[6] Section 140 of the Evidence Act 1995 (Cth) is also directly applicable, as are the matters mentioned in the very old High Court decision of Briginshaw.[7]

   [5](1988) 166 CLR 69.

   [6]See, for example, N and S and the Separate Representative (1995) 19 Fam LR 837, W and W (Abuse allegations: unacceptable risk) (2005) 34 Fam LR 129.

   [7](1938) 60 CLR 336, particularly at page 362 per Dixon J (as he then was).

7. Allegations that a parent has abused a child sexually, physically or emotionally must be taken very seriously indeed. Nevertheless, the Court should not make a positive finding that an allegation of abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.

8. In most parenting orders cases, of course, positive findings that an allegation of sexual abuse or physical abuse is true will have inevitable consequences in respect of the nature of the orders that are made. But in those cases where the Court is unable to make such positive findings, the process of determination of the proper orders is not necessarily over. Should the Court be unable to make a positive finding that an allegation of abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual abuse or other harm, such parenting orders should not be made.

9. It must also be remembered that although generally in cases where abuse allegations are made, the consideration and determination of the allegations of abuse will be at the heart of the process of determining parenting orders that will best protect and promote the interests of the child, all of the considerations listed in s 60CC must nevertheless still be considered by the Court as part of the process of determining what is in the child’s best interests.

10. Of course, apart from the issue of considering what is in the child’s best interests when determining appropriate parenting orders to make, the Court must still consider the application or otherwise of the presumption of equal shared parental responsibility[8] that relates to the allocation of parental responsibility for that child. That will also often involve determination of disputed facts, particularly where one parent alleges there has been abuse of the child or family violence perpetrated by the other parent.  If abuse of the child or family violence is found to have been perpetrated by a parent the presumption that it is in a child’s best interests for its parents to equally share parental responsibility does not apply. The Court can still make an order that the parents share equally parental responsibility for the child, but only if the Court is satisfied that it is, despite that abuse or family violence, in the child’s best interests for that responsibility to be shared equally by its parents.

    [8]Family Law Act 1975 (Cth) s 61DA.

11. If the Court decides to make an order that parental responsibility for a child be shared equally by the parents, it must go on to consider questions going to whether or not orders for the child to spend equal time or “substantial and significant time” (defined in the FLA) with each parent are in the child’s best interests and “reasonably practicable” (determined by mandatory reference to prescribed matters).[9]  If the Court determines the answers to those questions affirmatively then it must consider making orders for the child to spend equal time with each parent or “substantial and significant” time with each of its parents. If the statutory presumption that it is in a child’s best interests for its parents to equally share parental responsibility is rebutted and the Court does not determine, by reference to the child’s best interests, that parental responsibility should nevertheless still be shared equally by the parents, then the Court must go on to make the parenting orders, including as to the time the child spends with the parent he is not living with, that it determines proper, always with regard to the child’s best interests as the paramount consideration.

    [9]Family Law Act 1975 (Cth) s 65DAA.

12. Clearly, the consideration of what is in a child’s best interests consistently occurs throughout the negotiation of this statutorily prescribed path. That is done by considering, evaluating and weighing the evidence that was adduced before the Court. 

What of the evidence in this case?

1. The father asserted in affidavit evidence that the mother was “extremely controlling” during their relationship and that he felt very “isolated”. He also told the single expert, Dr F, Associate Professor of Psychiatry, he “always felt alone in the relationship”. He said this although he told Dr F that he considered himself to be an “easy going person” who is “friendly and helpful to others” and “easy to get on with and laid back”. The doctor reported that when asked by the doctor if he has any negative features, the father said “not really”, although he reportedly added that he regrets things he said to the mother that “upset her”.

2. The doctor, at the end of his written report, provided the opinion that the father did not suffer from any psychiatric illness and that his personality appears to be “in the normal range with a mixture of strengths and vulnerabilities one would expect to find in a non-clinical population.”

3. As to the mother, the doctor proffered the opinion that “the psychiatric issues are complex”. He did not believe that she was suffering from Major Depression although he recorded that she was unhappy about the current circumstances and anxious about the possible outcome of the proceedings. He considered that issues of bereavement with respect to the death of her mother (which occurred more than 10 years ago) seemed to be not yet resolved. He could not rule out a Dysthymic Disorder and noted that problematic personality traits do tend to accentuate when there is depressed mood. As to her personality, he recorded self-reporting of long term feelings of low self-esteem and suggestions of “significant dependent traits with a highly dependent relationship on her mother … that …appears to have been .. highly enmeshed..” He opined though, that the “psychological damage from the sexual abuse in childhood does not appear to be as profound as could be expected.” He observed she had personality strengths and that she impressed as having “a high absorptive capacity.” He did observe though that a dependent person becomes more dependent when they are experiencing depressed mood, even through Dysthymia.

4. Against that psychiatric opinion evidence, I turn to the evidence the mother gave and led about the father. She effectively commences her account of the history of the father’s relationship with the child in her trial affidavit by asserting that his involvement in the child’s life during their marriage (the first fifteen months of the child’s life) was “minimal”, asserting that he showed “very little interest or affection towards [the child]”. She said there were times when the child would be trying to get the father’s attention when the father would “either push him away or ignore him”. She says she recalls him changing the child’s nappy only on two occasions and only sometimes helping her bathe or shower the child, and only after being asked.

5. The father does not dispute that the mother was the child’s stay-at-home, primary carer whilst he went off to work each day. However, he says that he would help out in providing care for the child after he came home from work, including having a shower or a bath with the child, particularly when the mother was preparing dinner. He says that on weekends he was involved in feeding, dressing, showering or bathing the child, playing with him and changing his nappy.

6. The father tendered into evidence quite a number of photographs depicting him and the child at various stages of the child’s infancy from birth (including at the hospital after the child’s birth before taking him home) up to the point of separation. The photographs show father and son in various settings and poses and display what I consider to be a loving, caring, interested, proud father happily interacting with his son, including showering him, playing with him, and sleeping with baby asleep on his chest – the sort of photographs that an equally proud and loving mother or grandparent would happily take of father and child to provide cherished memories to all.

7. Carefully looking through those photographs, it is very difficult to accept the mother’s assertions about the father’s level of interest and affection towards the child. That said, in my experience, it is not uncommon for parents involved in parenting orders litigation to embellish, exaggerate, overstate or understate matters of quantitative and qualitative assessment of the involvement of the other parent or of themselves in parenting prior to separation. I am satisfied that this is what has happened in this case as well, in terms of the presentation of this factual issue. I have no doubt that the father loved and still loves his son and that after the child was born, he involved himself in the care of that child outside his work hours. I do not accept that his hands-on involvement in care was as much as he asserts it was, but I do not accept that it was as little as the mother asserts.   

8. The mother goes on to assert that there were numerous occasions when she saw the father “yell and be violent” towards the child. She particularises some incidents of such alleged behaviour.

9. The first one she said, in her trial affidavit, happened when the child was “only a couple of months old”. She corrected that in oral evidence in chief at the trial to be sometime between when the child was four to six or seven months old, when he was able to sit and hold his back and head up. She said that she was in bed under the covers trying to soothe the child who was crying whilst the father was in the living-room watching television. She said that the father burst into the bedroom in a rage, tore back the covers and grabbed the child with force by the shoulders screaming at the child words which the mother said were “to the effect of”  “Stop crying! Why don’t you make him stop crying?” She said that the father then “stormed out of the bedroom with [the child], shaking him such that [the child’s] head was violently moving backwards and forwards.” The mother said she ran after the father, crying “don’t hurt him! Please don’t kill him!” and caught up with him when he and the baby were almost at the front door, grabbed the child back and ran back to the bedroom where she closed the door behind her. She said she then went to stay at her father’s home with the child, frightened that the father would “hurt [the child] again.”

10. The father denied that such an incident had occurred at all.

11. I do not accept that the mother made this incident up completely. I do not accept that nothing like this happened at all. I am satisfied that something troublesome like this happened. I just do not accept that the father’s actions with the child were as severe as the mother now describes or that he was running to the door of the house with the baby in arms with any malicious intent. When the mother was cross-examined, she accepted being aware of the damage that can be done to babies’ brains by severe shaking and she acknowledged that she did not take the child to receive medical examination after this incident. I believe that she would have done that had she considered the father’s actions to have been as severe as she now describes them to have been. She did not even mention having her father (a retired healthcare professional) examine the child for any injury after this incident although she said she went to stay at his place for a while.

12. The mother asserted that the father would yell at the child when he would make a mess whilst eating. She said that the father would hit the baby “on the hands, legs or feet, leaving red welts.” She said that he would hit the baby “hard on his legs or arms” if the baby touched the television, tried to pull himself up on the television cabinet, opened the lid on the chest of drawers, touched any of the father’s DVDs or CDs or even went into the study. The mother referred to a particular incident where the father and the child were playing with building blocks. She said the father had built a tower of blocks and the child had knocked it over, prompting the father to hit the child, leaving a red welt. She said that when she expressed anger at his hitting the child, the father said words to the effect of “he has to learn to respect what other people are doing.”

13. The father conceded that there had been a time when he and the baby were playing together with the building blocks when he had hit the child on the hand with his own open hand for knocking over a tower of blocks he had built. He said that he had “tapped him on the back of the hand” as he believed that he had to learn to respect what others had done. He denied that he had hit the child so hard as to leave “red welts” that time or any other time. At the trial, the father accepted that he should not have hit the child as he did on that occasion.

14. Again, I am satisfied that there has been overstatement by the mother and understatement by the father as to these incidents. The evidence, overall, satisfies me that the father had difficulties managing his anger and controlling his immediate responses to things that made him angry. I accept that he smacked the child more than he concedes he did. Whilst I accept that from time to time the smacks may have immediately left some red marks on the child’s skin, I consider that the mother is exaggerating when she says that “red welts”, which she agreed in cross-examination meant the skin was raised and red, were left on the child’s skin. I also doubt the frequency that she alleges the father smacked the child. 

15. The mother describes in her trial affidavit a history of abusive, violent and aggressive behaviour towards her by the father. She said it began from early in their marriage. She refers to his anger and displeasure displayed upon receipt of the present she gave him on their first wedding anniversary, even in respect of a replacement gift that she bought for him. She said that he belittled her, comparing her to his former girlfriend.

16. She said that he began to “abuse” her about her weight and appearance, including belittling her physical appearance whilst they engaged in sexual relations. She said that he started using his physical strength against her in 2004. She said that he would grab her from behind with his arm around her neck, grab a clump of her hair and push it hard into her skull. She said he would give her “chinese burns” on her arms, flick her with tea towels on the arms and legs and whistle into her eardrums.

17. She said that during sexual relations he would penetrate her vagina with his fingers, scratching her causing her to bleed and that when she told him to stop it because it hurt her he “would not listen.” She said that he would insist on certain positions during sexual intercourse, even though she told him she did not like them. She said that when he kissed her he would bite her causing pain.

1. She said that he would denigrate her, telling her she was worthless, fat, ugly and a “nothing”. She said all this behaviour got worse after the child was born.

2. She particularises an incident where she had accidentally over cooked some vegetables when cooking dinner and then apologised to the father when she served them up. She said that the father stood up and put his hands around her throat and shook her, saying to her “don’t let it happen again or I’ll kill you and get someone better.”

3. She particularises another incident that she says happened in September 2009. She said that the father gave her $100 and told her to take the child to a book shop to buy something for him. She bought books and art supplies for the child and then spent the balance on some clothes and shoes for herself and a sandwich for herself and the child. When they returned home, the father asked her for the money back and went into a rage when she told him that he had spent it all.

4. The father denied most of these allegations levelled at him by the mother. However, he did remember the occasion that the vegetables had been overcooked and the occasion of the money being spent by the mother. Although he specifically remembered the occasion of the overcooked vegetables he denied having grabbed the mother around the throat and threatening her. As to the second incident, he did admit to angrily grabbing the mother around the base of her neck.

5. Once again, I am satisfied that the father had difficulty managing and controlling his anger in his dealings with the mother. I accept that he was rude and abusive to her, that he grabbed her physically, that he denigrated her, that he did not listen to her and respect her particular wishes all the time during their sexual relations. I am satisfied that he grabbed her around the neck more than the one occasion that he admitted and that his actions were more intimidating, frightening and threatening to the mother than he admitted.

6. The mother particularised another incident that frightened her greatly. In late 2009, the father had bought some large plastic barrels that he put in the yard, which he was going to use for watering fruit trees. The mother said that one evening when she refused his sexual advances after they had gone to bed the father became very angry and said to her, aggressively, “if I had known what it was like to be married to you, I would never have married you. Why do you think I brought home those blue barrels? To cut you up and put you in.” She said he then said to her “roll over so I don’t have to look at your face” and proceeded to have sexual intercourse with her “quite violently”. She said she was frightened and too scared to refuse. Afterwards, she went and slept in the child’s room.

7. The father admitted having made the reference to the barrels and having said to the mother that he had bought them to cut her up and put her in them. He said that he said this to her because he was frustrated that his needs and “the input [he] was making to the relationship were not being recognised”. He also said that he was unhappy at his place of employment at the time. He attributed the statement to the mother to his unhappiness in the marriage and his unhappiness at work. He said that when the mother mentioned the plastic drums and asked him what he was going to do with them he “exploded” and then said that which he admitted having said. He said in his trial affidavit that he knew that he had said the wrong thing immediately after he had said it and that he was upset about it. He denied that he told the mother to roll over or that he proceeded to have sexual intercourse with her in a violent fashion. He said he just moved to his side of the bed and the mother went in to sleep with the child. He said that the next day she took the child and went and stayed at her father’s place for a night before returning home.

8. I am satisfied that this incident happened the way that the mother said it happened and I do not accept the father’s denials of the balance of the matters that were included in the mother’s account. I consider that the father was doing what he could to minimise and downplay the incident. As an example, in cross-examination about the incident, the father denied that he had “exploded” when he made the statement about cutting the mother up, but then accepted that he actually had after it was pointed out to him that he had used the expression himself in his trial affidavit. I consider he was trying too hard to present himself in a good light for the Court.

9. The mother said she spoke to the father about the incident three days later and told him she was trying to “bury the hurt and forget what he said”. She said she asked him how they could move forward from there and that he snapped back at her. She told him that she needed help, that they needed help and that their marriage was in trouble. She said he was very angry and would not talk with her. She said that she slept in the child’s room but that it “did not occur to her that leaving was an option open to [her]”. She said that her religious faith caused her to believe that marriage is sacred and that she should do everything that she could to keep the marriage together and to make it work.

10. In contrast, the father gave evidence that they were happy after this incident. Indeed, he adduced evidence of text message exchanges between them from August 2009 through to December 2009 that he said reflected happiness between them. Certainly, the text messages and the photographs of the child that the mother sent the father around this period do reflect apparent happiness, but only a couple were sent after 30 November 2009, the date the mother asserts the statement about the barrels was made. It is just not possible for me to accept that the content of the text messages and the photographs proves that the mother is making up the degree to which she says she was unhappy through this period, most particularly after 30 November 2009.

11. In her trial affidavit, the mother also deposed to a few incidents of anger and abuse directed by the father at their family pets. The family kept dogs and cats. The mother said that the father had hit one of their little dogs because the dog had made a mess of a bag of rags in the carport. The mother said the father grabbed the dog by the throat, picked the dog up and walked over to the mother and child before beating the dog “with his fist.” She said the child screamed at the sight of this and she then told the father to stop his behaviour as it was scaring the child. She said she saw the father then put the dog down and shaped to hit the dog again before then kissing the dog on the snout. The father denied that he had acted like this, although he admitted that he had grabbed the dog by the scruff of the neck and picked it up and smacked it.

12. The mother gave evidence of the father having kicked their adult dog not long after it had given birth to a litter of puppies. The mother said that she could see the dog was bleeding from her rear-end and begged the father to take her to the vet. The mother said the father had told her he had kicked the dog “because she did something that [he] didn’t like.” In his evidence the father said that he had given  the dog a “tap” with his foot when he tried to stop her from getting out of the kennel and away from the puppies which needed feeding. He accepted that his foot had come into contact with the dog’s stomach area between the base of her rib cage and her hind leg. He did not accept that he had kicked her with force. He did agree that he had taken her to the vet, worried about the bleeding and documents produced by the veterinary practice under subpoena recorded observation of blood discharge from the dog’s rectum and diagnosis of “possible abdominal trauma”.

13. I do not accept the father’s evidence that he just put his foot out and “tapped” the dog or that he had not acted as the mother deposed in respect of the other dog. Again, I consider that he has understated his actions in respect of the dogs in an attempt to minimise detrimental perceptions being formed of his conduct.

The allegations of sexually inappropriate conduct by father towards the child

1. The mother particularises an incident that she says happened on 29 December 2009 whilst she, the father and the child were staying with her father at his place at Suburb J of the Christmas holiday period.

2. A female friend of the mother’s was visiting them for dinner. The mother said she was in the kitchen cooking dinner and talking with her friend when the father came into the kitchen and offered to bath their child who was tired and grizzly, to which the mother apparently agreed.

3. She said that she was nearly finished the dinner preparation when she realized that the father and child had been gone a long time. She walked to the bathroom which was at the other end of the house and said she could hear no noise coming from the bathroom except the exhaust fan. She entered the bathroom, which she accepted was open, and said she saw the father sitting in the bath, naked, with his legs apart, with the child facing away from him. She said that she saw the child sitting on the father’s genitals and the father holding the child’s hips and looking down at the child’s bottom. She said she asked the father “what are you doing?” to which he replied “we are playing – see”, at which time he lifted the child up and down. The mother said in her trial affidavit that she then saw that the father “was sexually aroused”. She said in her affidavit that she then said “play time’s over” and grabbed the child and took him out of the bathroom as fast as she could. She said she kept saying to herself “no, no, no. This cannot be happening.” She said that after this incident she made sure that the father did not bathe the child again and that he was not alone with him again. She said that she slept in the same room as the child after that incident. She left the father, taking the child with her just under a week later after they had gone back to their own home.

4. The separation occurred, the mother said, after the father had said to the mother that she was like a particular creature (she was wearing a top with a print of that creature on it) as she was “pretty on the outside, but poisonous on the inside.” Whilst the father was at an appointment, the mother, with the help and encouragement of a visiting friend, determined to pack a few things and leave the father, taking the child with her to her father’s home. As she was leaving, the father arrived back to the property with a couple of bunches of roses that he handed to the mother. They had a conversation in which she said to him “if you wanted out of the marriage it was not necessary to kill me. Just tell me you wanted out.” She said that he hugged her and said nothing in response to that. She does not say that she said anything to him about the incident she said she had witnessed when he was in the bath.

5. The mother is recorded by Ms G, the single expert family report writer who prepared two reports, the first in November 2010, the second in March 2012, as having told her during the preparation of the first report, when talking about this incident, that the father was sitting in the middle of the large bath with “his legs apart and knees cocked” and “with his hands around [the child’s] hips lifting the child up in the air.” Ms G records the mother as having told her that she noted the father had an erection at that time. Ms G also records that the mother said she did not think that the father penetrated the child’s bottom but rather was rubbing the child on his penis to stimulate himself. Ms G records that the mother told her that when she walked in the father was looking at his penis and she “just knew” what he was doing.

6. The mother is recorded by Dr F in his report as having told him that when she entered the bathroom on the evening of the alleged bath incident that “it was instantly wrong”. She said that there was no water in the tub. She said that when she asked the father what he was doing that he had replied “we are playing” but that there was “something sinister about his facial expression and the way he said the words “we are playing”. She said “it was like he was challenging.” She said “it was like he was saying ‘like what are you going to do about it?’” She pointed out to Dr F, however, that when she saw the father with an erection “it was not a full hard erection but a soft erection.” On the evidence, this was the first time the mother had said this and it was not something she actually even specifically referred to in her trial affidavit when she deposed to the matter.

7. She is further recorded by Doctor F as having said that her memory after that is not clear, she was “like a robot”. She said she recalls serving dinner in a distressed state. She said that when the dinner guest left that evening she went back into the bathroom and noticed that there was very little water in the tub. She said she noticed no toys in the bath although the child had a large number of toys.

8. The mother agreed that she did not complain to her friend who was visiting on the night of the alleged incident. She gave no evidence that she had complained to the father or raised it with him in any way before she left the home a week after the alleged incident. Her evidence is that between that day and the day she left the father, he would constantly say to her “what’s wrong with you?” She said she was too scared to talk to him about it, fearful of her safety following his comments about cutting her up and putting her in the barrels.

9. Another woman, Ms A, who was staying with the mother and the father at the time the mother decided to separate from the father, and who then stayed with her and the child at the mother’s father’s home for a few days after separation, did give evidence that the mother had said to her during that period of time that she was staying with the mother after the separation:

   I was frightened when I saw [the father] sexually aroused when he was bathing [the child] and I didn’t want to believe what I saw”.

10. I accept that the witness heard that from the mother.

11. The father’s father attempted to informally mediate between the couple in the period just after the separation to see if they could reach agreement about property division and parenting. The father’s evidence is that initially the mother said that she would arrange for him to spend time with the child but that she “subsequently decided that the visits would have to take place at a contact centre and be supervised”. The mother did not dispute that evidence.

12. An email from the mother to the father of 8 February 2010, though, makes the mother’s position about the child’s time with the father being supervised quite clear. She said in that email that “supervision by properly trained persons will mean that contact is safe and hopefully enjoyable for both you and [the child].” She went on to say:

    In time, should you have continued, to apply your Counselling and Behavioural Therapies, and whatever Medical treatment your doctors deem necessary, it will become evident to me and to the health professionals that safety issues are minimised and we can review the contact arrangements.

    Until such a time, I maintain that professionally supervised contact is necessary. 

13. In that email, whilst the mother mentioned the father’s treatment of the small dog in front of the child and its alleged impact on the child, she did not mention the incident she said occurred in the bath.

14. The couple also had some sessions with the elders of their H Religion congregation in the period shortly after separation. It appears agreed that the mother did not raise any allegation of sexual abuse or inappropriate sexual behaviour by the father towards the child in those sessions. Indeed, it is common ground that the first time the mother caused the allegations to be put to the father was via a letter from her solicitors to him around the end of March 2010 in which he was notified of general, non-specific allegations of sexual abuse of the child by him.

15. The mother said under cross-examination that she went to the Police and reported her beliefs about the sexual abuse around three days after she separated from the father. She said that they told her that if she pressed charges she would have to face the father in Court. She said she chose not to, but then went back to the police again in April 2010 and made formal complaint about it. There is no corroborative evidence of the mother’s attendance upon police in early January 2010. The mother also applied to a State Magistrates Court for protection orders under Queensland State family violence legislation in the period shortly after their separation. She did not mention the alleged sexual abuse in her application for protection orders at all.

16. Dr F recorded in his report that he asked the mother whether she could be wrong about the sexual abuse and that she responded that she was not an untruthful person and did not think she was wrong. She said that she had agonized over what had happened as she had “a lot at stake”. The doctor records that he then said to the mother he was not suggesting that she was being untruthful but was asking if she could be mistaken in her interpretation of what she saw. He records that after much agonizing she stated that she could be mistaken. Doctor F then recorded that later on the mother left a message on his answering machine to the effect that she did not believe she was mistaken with respect to the sexual abuse.

17. The father’s evidence about the incident in the bath, in his trial affidavit, was that he was bathing the child, as he had done at other times, when the mother walked in and said “what are you doing?” He said he responded “we are playing” and the mother grabbed the child and took him from the bathroom. He said after that, the mother’s attitude towards him changed in that she became very distant and cold. He said that he could not understand why until he learned that she was alleging that he had sexually abused the child in the bath that night.

18. Having said that in his trial affidavit, under cross-examination at the trial, the father denied aspects of his own evidence. When it was put to him that the mother had said “What are you doing?” he said “no” she had not. When it was put to him that he had then said “we’re playing” he said “no” he had not. When it was put to him that the mother had then grabbed the child he said “no” she had not, and when it was put to him that the mother had then taken the child out of the bathroom he answered “no” she had not. When it was put to him that after that event the mother’s attitude towards him changed in that she became distant and cold he said “no” she had not.

19. Counsel for the mother then pointed out to the father that she had actually been reading from the account that he had given in his trial affidavit when putting each of those propositions to him. The father asked counsel to read out the account from his affidavit and counsel read paragraphs 44 and 45 which contained the matters of fact that she had just put to the father which he had denied.

20. Counsel then put to him that what he had deposed to in those paragraphs was true to which he answered “no”. Counsel then asked the father what the Court was to make of that answer, to which the father responded “I should have made amendments to it.” He was then asked what amendments he would have made to which he responded “[the mother] did come in; she sat down at the bath tub and played with [the child] and I at the time.”   He went on to say that after the bath she took the child to dry off and to get ready for bed. Counsel then asked him whether he was saying it was “a pleasant and happy occasion” to which the father responded “yes” it was. When counsel asked him how he explained the version that he had deposed to in his trial affidavit the father paused for a long time thinking about the answer and then gave the interesting response “I can’t recall”.

1. With respect, I am not persuaded by all of the evidence in this case that the child’s best interests require his time with his father to be supervised on a long term basis, thus demanding final orders to be made to that effect. I am not persuaded at this point that the father is a person who actually, long term, represents an unacceptable risk to his child’s physical and emotional wellbeing such that he could never be expected to have unsupervised time with his child. Certainly, he has personality and character flaws, some serious, but that, in my view, is part of the human condition. Few parents are perfect and most are “good enough”. Being a good and capable parent does not always come instinctively and immediately on entering parenthood. Introduce parenthood to a relationship that is unhappy and failing, set amongst fairly rigid faith-based precepts and the difficulty of the task must, in my view at least, magnify. 

2. Long term supervision of a child’s time with a parent is an uncommon outcome in disputes about appropriate parenting orders in this Court. As I have determined that I do not consider the child faces an unacceptable risk of being sexually abused by his father in his unsupervised care, consideration of such a regime for the protection of the child from sexual abuse is not required. I am also satisfied that the father would not intentionally inflict physical or emotional harm on the child, such as would also dictate such a regime being put in place for the protection of the child.

3. Furthermore, I am not persuaded at this point in time that the mother’s emotional response to unsupervised contact will compromise her parenting capacity in such a way as to impact upon the wellbeing of the child in a manner that dictates that his time with his father must continue to be supervised on a long term basis.

4. However, I am satisfied that a gradual increase in the amount of time that the child spends in the care of his father, just as Ms G recommended and counsel for the ICL submitted should happen, will not only allow the child and the father to grow into and become accustomed to the changing care arrangements in a cautious and measured way, but will also allow the mother to do so as well. As Dr F postulated, the mother’s anxiety can be expected to naturally reduce as the child’s time with his father increases, provided that the child’s time with his father is free of any events that compromise his care such as to add to the mother’s anxiety. That, I accept, is optimally provided for by putting orders in place that (a) require a mixture of independent, professional supervision and supervision by the paternal grandparents; (b) gradually increase the child’s time in his father’s care; (c) provide for review by a family report writer in six months’ time; and (d) provide for further consideration by this Court before making final orders. That is what I will do.

How should parental responsibility be conferred in this case?

1. The father sought an order for equal share parental responsibility, but it became clear during his cross-examination that the father thought that equal shared parental responsibility means the child lives with each parent for an equal amount of time. When counsel for the ICL explained the concept of the parents jointly coming to decisions about the major long-term issues for the child, and asked him how he proposed he would communicate with the mother about the child, the father answered that he would do so by letter or by “talking”.  He agreed though that he had not spoken to the mother since January 2010. 

2. I am satisfied that the statutory presumption of it being in the child’s best interests for his parents to share equally parental responsibility is displaced or rebutted in this matter because of the family violence that I am satisfied the father perpetrated against the mother.[10] Even that to which the father admitted  falls well within the definition of family violence contained in the FLA.

   [10]s 61DA(2)

3. The circumstances of this case, particularly the complete absence of trust of the father on the mother’s part and the lack of any communication between them for years, persuade me that it is not in the best interests of their child at this point to confer parental responsibility equally on the parents. I accept the submission of the ICL that parental responsibility should be conferred solely on the mother subject to her exercising that responsibility by advising the father of decisions to be made, her proposed outcome and the reasons for it and with provision for the father to send his views to the mother in any event before she makes the decision. That process provides the father with some input and facilitates a potential rebuilding of trust, whilst ensuring that major long-term decisions in respect of the child are still made without recourse to the Court being necessitated.

What orders should be made for the child to spend time with the father?

1. I have already said that I will make orders substantially in accordance with the recommendations of Ms G and the submissions made on behalf of the ICL, accepting that those are the appropriate orders having regard to the best interests of the child. The orders will provide for the child’s time with the father to increase from the 1 hour per week that he has been spending with him up to 2 hours per week for four weeks, then to 4 hours per week for 8 weeks and then 6 hours per week until the matter is reviewed and given further consideration. I do not consider it necessary, at this point in time, to provide for the child to spend time with the father on special days such as his birthday or Father’s Day. Those matters can be considered in respect of the final orders to be made.

2. The father was seeing the child on Mondays at the time of the trial. He was able to do that as the child was still not school age and his labouring contracting business only required him to work on 4 days per week, leaving Monday free. Given the time that has elapsed since the trial, it is likely that the father’s working commitments could have changed. Further, the child is of an age where he could be attending his Preparatory Year of schooling this year. Accordingly, the orders will provide for the child’s time with the father to take place on Saturdays, unless otherwise agreed between the parties in writing.

3. By the time the trial ended, the child’s time with the father was being supervised by a private independent provider of supervision services on the Gold Coast, Ms B. The orders I will make will provide for the first and last 30 minutes of each period of time that the child is to spend with the father to be supervised by Ms B at her residence and for the father to pay for that. Each period of time the child spends with the father will include time that the father, in the company of either or both of the paternal grandparents, can take the child away from Ms B’s supervision and home. That time will gradually increase from 1 hour to 3 hours to 5 hours over the next 6 months.

4. Should Ms B no longer be providing the service then the orders will provide for the independently supervised part to go back to the C Contact Centre, again at the father’s expense.

Other Orders

1. The orders will provide for the parties to communicate with each other about matters pertaining to the child by a communication book that the mother is to obtain and which will travel between the parents with the child. It is in the child’s interests for the parents to communicate with each other about matters relevant to the child and his wellbeing. Such a book becomes a useful record of the extent to which the parents communicate with each other about these things and the way in which they communicate. I expect that I will get to see it as evidence at the further hearing of the matter.

2. The orders will restrain the father from using physical discipline on the child so that there is no doubt about the Court’s expectations in this respect. Any act of the father’s in contravention of such an order is, therefore, subject to potential consequence in this Court as well as being important in the further consideration of this matter.

3. The orders will restrain each of the parents from denigration of the other or other parent’s family to or in the presence of the child and from exposing the child to any such denigration from others. I am satisfied such an order is in the child’s best interests.

4. Each parent will be required to keep the other informed of the address at which they live and a telephone contact number. This is in the child’s best interests.

5. At the trial, the father said he was going to attend a Triple P parenting program. He should have completed that by now. The orders will require him to provide written confirmation of completion to the other side and, if he has not completed it, they will require him to complete such a course within six months. That can only be in the child’s best interests.

6. The orders will provide for the parties to continue attending upon their own psychologists if that is recommended by the psychologists this long after the trial, having regard to the orders that are now being made. The father will also be required to obtain a report from his psychologist to be provided to the other parties that details his attendances and the psychologist’s assessment of him, as well as any recommendations for other treatment. I accept that it is important, given my findings about the father’s difficulties with anger management, and the fact that the matter is going to be subject to further review, that the other parties have access to this information for their consideration.

7. My orders will provide for the family to be seen again in six months’ time by a family report writer. Ideally, it will be Ms G again. However, I am aware that Ms G has announced her retirement from family report writing. She may not be willing or able to see this family again for the provision of another report. The orders will provide for that possibility by allowing the ICL to nominate another report writer in such circumstances. The further cost of such report is to be shared equally by the parents if the Legal Aid office will not fund it. I do not consider it a case where the Court should pay for such a report, as advocated by the ICL. I do not consider this Court’s limited resources should be committed to paying for such a further report in the circumstances of this case. If Legal Aid Queensland considers itself in the same position then the parties shall have to pay for the report.

8. I will list the matter for further hearing, if necessary, over 2 days in September this year. That needs to be done now given the calendaring requirements of this Registry of the Court so as to secure dates in that period of time. I will also list the matter for earlier mention with a view to considering any necessary trial directions at that time.

What of the Mother’s application to be allowed to take the child overseas?

1. The mother also asked the Court for orders that permit her taking the child with her on overseas holidays to places including China, New Zealand and the United States. The maternal grandfather is from China and the mother wishes to be able to visit that country with the child and her father. She also wishes to join in family ski holidays to New Zealand. The mother eschews any intention to leave Australia with the child and not to return with him as she says this is her home. The mother wants to be able to obtain a passport for the child and to travel overseas with him up to three times each year for up to three weeks at a time. The father opposed the application, citing concerns that the mother might take the child to live in China and not return with him.

2. I will make an order that the father join with the mother in signing an application for the child to have a passport so that the process of obtaining a passport can be put in place and completed by the time this matter comes back for further consideration. I am not satisfied that the risk of the mother taking the child overseas to a non-Hague Convention signatory country and staying there is high enough to be unacceptable in this case. Australia is her home and her father’s and brother’s home. I do not consider she would leave it and not return.

3. However, I will not make Orders at this point that permit the mother to take the child from the country for holidays of up to 3 weeks’ duration on 3 occasions per year. I will be ordering that the child spend time with his father every Saturday for the next six months. I consider it is most important for this child’s relationship with his father to be gradually and cautiously rebuilt. Three week breaks in that process are not what I consider, at this point, conducive to his best interests. I would anticipate overseas holiday time to be able to be dealt with in final orders made after further consideration of this case later in the year.

4. I will make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 February 2014.

Associate: 

Date:  6 February 2014