Bryson and Vergonis

[2018] FamCA 574

FAMILY COURT OF AUSTRALIA

BRYSON & VERGONIS [2018] FamCA 574

FAMILY LAW – CHILDREN – Parenting Orders – Relocation – Where father seeks mother to relocate back to Queensland with child – Where father seeks to spend each alternate weekend with child progressing to an equal care arrangement – Where mother primarily seeks that father’s time with child is supervised at a contact centre indefinitely – Mother alternatively seeks time be supervised between child and father and progresses to unsupervised day contact on an interim basis – Where mother alleges the father poses an unacceptable risk of harm to the child – Where the father is not found to pose an unacceptable risk of harm to the child – Where the mother’s parenting capacity would not so diminish if child spent time with father – Where it may be in the child’s best interests for the mother to relocate back to Queensland to spend significant and substantial time with the father – Where the court proposes to give the parties an opportunity to make further submissions as to the extent, if relocation is ordered, of the radius in which the mother might be required to relocate to from the father’s residence.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623
Sampson & Hartnett (No 10) 2007 FLC 93-350
Carlson & Fluviun [2012] FamCA 32
Adamson & Adamson [2014] FamCAFC 232
T v N [2001] FMCAfam 222 Ryan FM

APPLICANT: Mr Bryson

RESPONDENT: Ms Vergonis

INDEPENDENT CHILDREN’S LAWYER: Ms Huth

FILE NUMBER: BRC 6208 of 2014

DATE DELIVERED: 30 July 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane and Cairns (via video-link)

JUDGMENT OF: Tree J

HEARING DATE: 13 and 14 October 2016, 13, 14, and 15 November 2017; last written submission filed 8 January 2018

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Horsley

SOLICITORS FOR THE RESPONDENT: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Bertone

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

1. The matter be listed for further mention at 2:15pm on Monday 6 August 2018 in Townsville by Global Meet Telephone Conference. 

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC6208/2014

Mr Bryson

Applicant

And

Ms Vergonis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the appropriate parenting arrangements for the parties’ 4 year old child, X, born in 2013 (“the child”). Mr Bryson (“the father”) commenced them in July 2014, after Ms Vergonis (“the mother”) unilaterally relocated from B Town, Queensland, to New South Wales with the child. For his part, the father seeks orders for the parties to share parental responsibility, for the mother to return with the child to live in close proximity to B Town, and for the child to spend increasing amounts of time with him until an equal time arrangement is in place.

2. At the commencement of the trial, the mother sought orders for sole parental responsibility, and that the child live with her, but spend no time with the father. However, during the course of the first two days of trial, being 13 and 14 October 2016, the mother moved away from seeking a no contact order, which resulted in interim consent orders being made between the parties.  The matter was then adjourned for a period to allow for reunification between the father and child. The trial then resumed before me on 13 November 2017. After the evidence was concluded on 14 November, at their request I stood the matter down to allow the parties to have negotiations. They proved unsuccessful, but exhausted the time available, in consequence of which on 15 November 2017 I ordered for the filing of written submissions by the parties, after which my decision would stand reserved.

3. The father’s position remained the same as his initial application, in that he seeks equal shared parental responsibility, for the mother to return with the child to live in close proximity to B Town, that he have supervised time with the child pending return, but upon the mother returning, he spend each alternate weekend with the child, eventually progressing to equal time.

4. As ultimately formulated, the mother seeks, as her primary position, that she have sole parental responsibility and that time between the father and the child be supervised at a contact centre indefinitely. The mother provided an alternative position, in the event the court was not minded to make final orders for indefinite supervised time, which provided for the child to spend increasing amounts of supervised time with the father, culminating in unsupervised time, during the day, on the condition that the father completes a parenting course, and is compliant in regular drug testing. The mother contended that the alternative proposed orders should only be made on an interim basis.

5. As per the Independent Children's Lawyer’s written submissions filed 12 December 2017, she supports the father’s proposal for the mother to relocate with the child to live within a reasonable distance (she contends 100km) of B Town, to facilitate the child’s relationship with him. She further seeks that the mother have sole parental responsibility and for a gradual increase of time that the child spends with the father, until he is spending each alternate weekend with the father, together with one half of school holidays.

BACKGROUND FACTS

The father

1. The father was born in 1966, and hence is presently 52 years of age. He grew up in Adelaide, before moving to B Town at the age of 14 with his family, where he still resides. He has a close relationship with his family.

2. Before he met the mother, the father was in a relationship with a previous partner, Ms C, which relationship produced two now adult children.  

3. The father is a tradesman.  

The mother

1. The mother was born in D Town, New South Wales, in 1979, and hence is presently 38 years of age. She moved to Queensland with her parents when she was six years old. They later separated; initially she lived with her mother, but at about 14 years of age, she went to live with her father. The mother states she ended her schooling at the age of 15, after which she then worked in retail.

2. She met her first husband, Mr E, at the age of 19, and from this relationship had two children, Y and Z, now aged 17 and 15 respectively.

3. The mother is a practicing Christian, and says she has done so for most of her life, except for a period of five years between the ages of 17 and 22.

The relationship

1. The parties’ relationship commenced in late 2010 within a few months of them meeting each other. Both parties assert the relationship was positive and happy in the early stages.

2. The parties cohabitated together from August 2011 until about October 2012, at which time the mother sought refuge at a women’s shelter for a short period of time, together with Y and Z. She then moved to live in a caravan on her ex-husband’s property with her children. The mother says she did not spend much time at the caravan, as she spent most of her time with the father at various addresses where he was living.

3. The mother alleges the relationship started to deteriorate after the first six months, with the father becoming controlling and physically, sexually and emotionally abusive to her. She says this behaviour continued during the course of the relationship, and during the time she was pregnant with X. The mother alleges the father is associated with an organisation and this association contributed to the violence and abuse during the relationship. The father denies he is, or has ever been associated with such a group. 

4. The mother has detailed various incidents of the father’s abuse of her in her affidavits. These include him forcing her to consume illicit substances, to have sex with his friends, drugging her, holding her in his home against her will, refusing to either obtain medical treatment and making death threats against her children and family. These are very serious allegations, and I will need to consider them in some detail later in these reasons.

5. On 31 December 2012, the mother and father were celebrating New Year’s Eve in F Town in Queensland, in a house with other people they knew. The mother says she woke up in a spa bath that evening feeling like she had been drugged. The spa water was brown in colour and looked frothy. She says that when she awoke, there were five men and the father around her talking about a baseball bat that they had inserted into her vagina. The mother was pregnant with X at the time, and says she suffered vaginal bleeding for days following this incident. The father denies the mother was drugged, or that there was discussion about a baseball bat.

6. In 2013 X was born. Both parties agree that the mother was X’s primary carer during the relationship. Although the father says he did help out with duties for the baby, including changing nappies, bathing and feeding, the father says the mother was overprotective of the child and did the majority of the caring.  

7. Both parties concede that they consumed illicit drugs during the relationship. The mother says that, in addition to using certain recreational drugs voluntarily, the father would force her to consume sleep inducing drugs and other substances from a pipe against her will.

8. The mother alleges an incident that occurred from 14 to 16 January 2014, which she describes as the final factor which caused her to relocate with X without the father’s knowledge to G Town in New South Wales. She left her two older children, Y and Z, with their father, Mr E, when she did this.

9. Various protection orders have been made against the father from the periods of 16 October 2013 through to 16 July 2014. The father has breached the protection order on two occasions in early 2014.

Post-separation

1. After the mother relocated with X, the father spent time with the mother and X on two occasions in March and April 2014. In relation to the March meeting, the mother asserts that the reason she contacted and met up with the father again, was because a man from the organisation came to see her in New South Wales. After this, the mother rang the father and told him about the meeting with the man, and told the father where she was living. The mother then travelled by train to meet the father in H Town, where he picked her and the child up by car, and they stayed at a hotel room in H Town for two nights. The parties then travelled to J Town where they stayed for another night together. The mother asserts she and the father had sexual relations during this time.   

2. The mother says that she chose to stay with the father on this occasion because she was given a choice to either go with the man who had previously met up with her, or with the father. This man was allegedly staying in a nearby room in the same hotel as the parties. The mother says she did not call the police as she was too scared that she would get killed. After spending three nights together, the mother returned with X to her residence in New South Wales.

3. In relation to the April meeting, the mother again took a train to K Town, where the father picked up the mother and X up, and they stayed at a hotel room for about two nights together. Again, they had sexual relations on this occasion.

4. After the two nights together in K Town, the father then drove the mother and X back to B Town, where they stayed at another hotel for two nights. The parties then had a fight. The mother says that the father wanted to take the mother to the bush, and for X to be left with his parents. The mother resisted the father’s request, and she says the father was pulling her hair and choking her. The mother says she left the father after that incident, and stayed at a friend’s house in B Town until returning home to G Town NSW.

5. The mother also gave evidence that in between the two occasions of visiting the father in March and April 2014, she would talk to the father via telephone almost daily.

6. I should emphasise that the above evidence in relation to the mother visiting the father on two occasions post relocation, only came to hand during the mother’s cross examination. Nowhere in her trial affidavit, or any previous affidavit, had she disclosed that she met up with the father and facilitated X spending time with him. I put to the mother during her evidence that one interpretation I might make of her failure to tell the court about this, is that she chose to withhold the information, as it was quite contradictory to everything else in her affidavit, to the effect that she was in mortal danger if she spent another minute anywhere near the father, to the point that her case was that the child should never see him again. The mother says she did not disclose the information previously as her case workers from a domestic violence organisation told her not to.

7. The mother and child remained living in G Town up until August 2014, after which they moved to another location in NSW. The mother had not had any contact with the father after the April 2014 visit up until February 2015, when he called her. It is not clear on the evidence what the conversation was about and what resulted thereafter, however it is conceded that the father has not spent any time with the child since April 2014 up until the time of the commencement of the trial in October 2016.

8. At the conclusion of the first portion of the trial in October 2016, the parties agreed for the father to spend time with the child under the supervision of a s 65L consultant at the Brisbane Registry. This occurred at the time of the updated family report interviews.

9. Further consent orders were made in April 2017 for the father to spend supervised time with the child at the L Contact Centre in J Town, for a period of 2 hours each month, and 4 hours every 3 months. By the time of the second phase of the trial, the father had been exercising his time with the child at the contact centre pursuant to the April 2017 orders.

10. The father’s evidence was that, in order to spend time with the child at the contact centre, he had to leave B Town by 5 or 6 o’clock in the morning, travel for about eight hours to the contact centre in J Town, then drive home for another eight hours after the visit.

Current situation

1. The father is currently residing at his home in B Town with his ex-partner Ms C and his two adult sons.  He denies he is in a romantic relationship with Ms C. He says he is in the process of setting up a business with one of his sons.

2. The mother is living in a location in NSW undisclosed to the father, together with her daughter Y and the child. She says she has been living there for the past two and a half years. The mother’s son, Z, lives with his father in B Town, and spends time with the mother on school holidays. The mother currently works for the same business where her daughter also works. Y is presently in her last year of school in NSW.

THE ISSUES

1. At the Trial Management Hearing, and with the assistance of the parties, the following were identified as the issues in these proceedings, in the sense that their determination would likely largely inform the exercise of the discretion in relation to parenting orders:

   1.What is the nature of the relationship between the child and each parent.

   2.Would the child benefit from a meaningful relationship with the father, and if so, how could it best be facilitated (including by way of interim regime orders, but taking into account the distance between the parties’ households).  

   3.What, if any, risk of harm does the father pose to the child.

   4.What, if any, risk of harm does the mother pose to the child.

   5.What would be the impact on the mother’s parenting capacity of having to co-parent the child with the father.

   6.What would be the effect on the child of having no relationship with the father.

   7.Could the parties’ relationship history and communication support equal shared parental responsibility.

2. Once I have addressed the relevant statutory provisions and legal principles, and in advance of a traverse of any residually relevant s 60CC considerations, I will discuss those issues in that order. I will then go on to determine the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

1. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

2. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

3. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the mother’s allegations, I propose to carefully evaluate the evidence relied upon in support of them and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account.  A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

3. That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:

   Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.

4. Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

Forced relocation

1. In Sampson & Hartnett (No 10) 2007 FLC 93-350, the Full Court said as follows:

   58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child.  The proper exercise of such a power is likely to be rare, because:

   (i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

   (ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous.  If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.

   59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement.  What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent?  Will the primary parent be punished?  The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times.  Enforcement is discretionary and may be rare in the situation exemplified.  On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.

   …

   74. As preface to this discussion, we make the following observations.  A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving.   In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually  be  arrangements  in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court.  If there are not, that fact would normally be a relevant consideration.

   75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court.  It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.

   …

   83. The orders that her Honour made were in effect at the extreme end of the discretionary range.  Strong and well-defined support for them was necessary.  While Moore J made reference to some factors such as the impact on the wife’s parenting, she did not for example explore all avenues of lesser impact on the mother’s freedom of choice.  For example, though she thought the father could not move permanently to Geelong, whether contact in Geelong or Sydney would advance the relationship to such that if the mother chose not to live in Sydney the children could move to the father’s primary residential care.

   …

CREDIBILITY

Overview

1. The mother alleges that the father poses an unacceptable risk of direct harm to the child, and further says she is so fearful of him, that if the child were to spend other than strictly supervised time with the father, it would diminish her parenting capacity to such an extent that it would not be in the child’s best interests. Both of those positions are primarily based upon the mother’s claims that the father has physically and sexually assaulted her, administered stupefying drugs to her without her consent, arranged for associates of his to sexually assault her, falsely imprisoned her in a dungeon, and has, on two occasions now, in effect bargained with others for her to be his partner.  On the first occasion the mother says the only other option was that her children would be physically harmed; on the second occasion, she says that the option was that she was to be killed. The father denies all of these claims. He says that the mother is either making them up, or is transferring to him events that occurred at the hands of her previous partner.

2. As I shall shortly detail, there is very little corroborative evidence of the mother’s claims. In relation to some of them, the only evidence is her claim.

3. The trial was conducted with a strong focus upon the veracity or otherwise of the mother’s claims. However, as shall be seen, the mother’s claims are not in fact pivotal to the outcome of these proceedings. Nonetheless they are relevant. It is therefore incumbent upon me to determine whether or not I am persuaded, on the balance of probabilities, that the father conducted himself as the mother alleges. That therefore raises squarely the parties’ credibility.

4. Counsel for the Independent Children's Lawyer, in her helpful and comprehensive written submissions, referred to the passage of Kent J in Carlson & Fluviun [2012] FamCA 32 at [165]-[169] and Adamson & Adamson [2014] FamCAFC 232, as authority that, as a general proposition, civil courts, including this court, usually refrain from specific adverse credit findings. Whilst I will adopt that approach, I do need to determine how I shall treat the parties’ evidence.

The Mother

1. A useful starting point in considering the reliability of the mother’s evidence, is her admission that one assertion she made in her trial affidavit was knowingly and deliberately false. Moreover, the evidence was highly material. She claims that on 14 and 15 January 2014, the father forced her to smoke an amphetamine substance, and proceeded to have sex with her, and during that intercourse, he inserted foreign objects, including a cow horn, into her vagina. She claims to have “blacked out” for a period and woke up with very heavy vaginal bleeding on 16 January 2014. She then had her daughter from a previous relationship call police, and when they arrived, arranged for the mother to be taken to M Town Hospital, and after she was discharged from there, a temporary protection order was made in her favour against the father. She then says that the father proceeded to breach that order on 21 and 27 February, which caused her to feel that she “had no choice but to move interstate and change my identity to remove myself and my children from the family violence.” As it transpired, she relocated to G Town in New South Wales in February 2014.

2. At paragraphs 13 and 14 of her affidavit filed 15 September 2016, the mother went so far as to say:

   13.When I moved interstate, I received assistance from domestic violence support workers. These people wished to remain anonymous and not be involved in these proceedings. Given the extreme nature of the violence that [the father] subjected me to during our relationship, my support workers fear for their own safety if [the father] was to learn their identity.

   14.[The father] does not currently know where I am living and it is crucial for my safety and that of my children that this remains the case.

3. At paragraph 41 of that affidavit the mother said that the child had not spent any time with the father since he was five months old, and he and the mother relocated to New South Wales in February 2014. However, as I have already indicated, during the course of her cross-examination, the mother admitted that indeed she had, after February 2014, on two occasions travelled to meet up with the father, together with the child, on which occasions, over the course of several days, she and the father had ingested amphetamine and engaged in sexual relations.

4. Her explanation for why she falsely withheld that evidence is easily stated, but difficult to accept. She says that it was omitted from the affidavit because she “believed it was for my best safety not to bring up what happened” and her “case workers” recommended that she not bring up those events in her affidavit, and specifically told her to keep them out. She even went so far as to say that she “thought my life would be in worse danger” if she had disclosed them. She denied that she had withheld them because they were contrary to her case.

1. I have observed that it is difficult to accept this evidence, and indeed it is. I am completely at a loss to understand how it is that the fact of those two events – clearly known to the father – in any way further imperilled the mother’s, or the child’s, safety. Other than an alleged assault at the conclusion of her time with the father in April 2014, and leaving to one side the parties’ further use of drugs, the events do not present the father in an untoward light. Further, as shall be seen, although those events do involve alleged members of the organisation, the mother has long asserted that the father is associated with that group. Moreover, the mother has made an astonishing array of allegations of misconduct by the father, including administering a stupefying drug to her so that a group of men could sexually assault her by raping her with a baseball bat. It is difficult to see how including in her affidavit the events in March and April 2014, could have imperilled her life in a way which her other allegations did not.

2. The mother’s explanations for why she met up with the father again in March and April 2014 are difficult to accept. She says that, whilst she was in hiding in G Town, “a man came up to me and it became apparent to me that he was a member of the [organisation]. He had a ring on that had the [organisation’s] thing on it, and he started talking to me. And then I went back to where I was living at the time… and I called [the father] because it had happened to me before when [the organisation] had come up to me and I was scared.”

3. Moreover, although she says that she had changed her telephone number in order to ensure the father could not contact her, she nonetheless rang him on that number, and thereby disclosed it to him.

4. She says that she did not go to police after being contacted by a person she believed to be an associate of the organisation, because she “was too scared that I would get killed. I’ve been told if I’ve ever gone to the police that I would get killed”.

5. Precisely what conversation ensued with the father is unclear, but at all events, she arranged to travel with the child to H Town, where she met up with the father who had driven there from B Town, stayed two nights with him there in a motel room and had sexual relations with him, before spending a further night with him in J Town.

6. Although her evidence is that she got in contact with the father “because I didn’t know what this [organisation] was going to do to me,” somehow or other that developed to the point where the (alleged) associate who had approached her in G Town, also came to H Town and “was also there in a room underneath the motel,” and “at the time, I was controlled by [the father] and I was told to choose an owner. I could pick [the father] who was my current owner, or I could pick the new owner which was waiting downstairs, which I didn’t know of, and [the father] informed me that that owner was going to put me in a body bag so I chose to stay with [the father].”

7. The mother thereafter apparently returned to G Town, and the father to B Town, but they remained in daily phone contact, albeit sometimes it may have been by text message.

8. For reasons which are not clear on the evidence, the mother and the father met up again in April 2014, this time in K Town in northern New South Wales. Again the father travelled down by car from B Town, met the mother and the child at the station, and they all stayed in a motel for one or two nights. The mother and the child then travelled to B Town with the father, and stayed in a motel room there for a further two nights with him. She and the father engaged in sexual relations both in K Town and in B Town. She says that she then had a fight with the father because “he wanted me to leave [the child] with his parents when he – he was going to take me … to the bush, and I didn’t want to go because I was scared the [people form the organisation] would be there and they would rape me.”

9. She continued:

   He was pulling my hair and things, choking me, that he does because he wanted me to hop in the car with him, and I didn’t want to because I didn’t want to do that. And, at the time, he did hold [the child] for a second while [the child] was crying, and he told me to turn away from [the child] and not to look at him until he stopped crying because he didn’t want [the child] to think that I loved him. Until [the child] stopped crying I wasn’t allowed to look at him. I had to pretend I didn’t like him.

10. She was cross-examined about why she did not go to the police after the fight in B Town, but she requested not to be required to answer that question “because I am scared [the father] will find out” and “..because I don’t want to die.” At this point in her evidence, the mother became so distressed that the Court had to rise.

11. To return to the narrative of events, somehow or other the mother then travelled from B Town to G Town, where she remained living (albeit at a changed address) until August 2014. She says that she did not hear from the father again after 21 April 2014, as she changed her mobile telephone number and did not give that out to him.  

12. Where she moved to in August 2014 is not disclosed in the evidence, at the mother’s request, however her evidence is that, notwithstanding her moving to another town and having a new phone, the father called her in February 2015. Her evidence is that “he said to me – I asked him how he got my number, and he said, “you know”. And then I went into shock. I don’t recall too much of the conversation. I was really shaky that he called me, and I had not heard from him or given him my number or had any dealings with him since April.”

13. She then went to New South Wales police and “complained about everything that had happened to me, and everything that I had seen and heard throughout the relationship”. The police took a statement from her and, according to the mother she “was made a high-risk client, case managed by the police, and I have case workers that look after our case, and look after our family.”

14. New South Wales police records were produced pursuant to subpoena and were tendered into evidence. They tend to support some parts of the mother’s recollections, although it appears as though she in fact first went to New South Wales police on 24 April 2014 and, according to those records, made allegations of sexual abuse at the hands of the father some two years previously. Those notes record that the mother told police on that occasion that the father did not know where she was. There is, rather surprisingly, no mention of the fact that, only three days earlier, she had been with the father in a motel room in B Town, and had, according to her, fought with him.

15. Police then took up with the mother again on 21 May 2014, and whilst telling them in broad terms about the allegations of sexual assault, again there was no mention of her having recently spent time with the father. Indeed quite the contrary. Police notes state: “the victim was asked if she had any immediate fears for her safety and if [the father] knew where she was staying. The victim replied that she felt safe, but believed [the father] probably knew she was in [redacted] as a guy from the [organisation] been sent down to spy on her from QLD. The victim has been in [redacted] since February 2014. The victim was asked if she wished to supply a statement and have possible action taken against [the father] for any of the incidents reported. She stated she was not ready “right now” to make a statement and would need to prepare herself before doing so…”

16. As I have indicated, there are records of the mother going to New South Wales police in consequence of a telephone call from the father in February 2015, which tend to support her story, but there is absolutely nothing to suggest from those records that the mother was made a “high-risk client” or the she has been referred by NSW police to case workers.

17. The mother’s memory is demonstrably unreliable in relation to significant events. It will be recalled that she asserts that on 13, 14 and 15 January 2014, she was held against her will by the father in a unit at N Town in Queensland, and sexually assaulted. She says that during those three days she was “in and out of consciousness” as a result of drugs that she unknowingly consumed. In cross-examination however, when asked “you’re saying they [the drugs] were forced upon you?” she answered “I didn’t take anything. That’s why I’m wondering how the heck did a day go missing. That’s what I was telling the police.”

18. She was then directed towards paragraph 25 of her affidavit filed 15 September 2016, which said that, after being taken to the unit “[the father] forced me to smoke an amphetamine substance.” When confronted with that contradictory evidence, she denied that what was in her affidavit was correct, and specifically agreed that she was given no drugs that she was aware of. However a little later in her cross-examination she was taken to some contemporaneous notes compiled by child safety officers who interviewed the mother on 22 January 2014. They specifically record:

    [The mother] said that during Monday 13.1.14 [the father] provided her with white powder that they heated in a pipe and smoked. [The mother] could not identify what the substance was…

19. Inevitably, that then caused the mother to retract the denial of the truth of her September affidavit, because she conceded that events would have been fresher in her mind on the 22^nd January 2014.[4]

    [4] Also in evidence were police records of the 16^th January 2014 which record that the mother told police on that day that she and the father “have consumed unknown drugs..”. There is reference in those notes to a “crack pipe”.

20. At this point it is convenient to traverse the evidence as to the impact upon the mother of taking drugs such as amphetamines. She vehemently denied in her oral evidence that the drugs impacted upon her perception of events at all. Specifically she denied that they altered her perception of events, but said they “make me feel high, so an unnatural high, like – I don’t know – happy.” She claimed that she was “fully conscious” when on amphetamine, which made her “more accepting and tolerant” of certain things, although she would not later regret what she did while under the influence of the drug. She specifically said “I remember everything under the drugs” and that the effect of amphetamine was to increase her sexual arousal.

21. The expert evidence did not support the mother, and specifically, Dr O, a psychiatrist, emphasised that amphetamine is a psychoactive substance. In cross-examination by counsel for the Independent Children's Lawyer, he said that there was:

    The very real prospect that there appeared to be significant psychoactive substance abuse… at that time and that in itself can raise a whole series of secondary psychological symptomatology in individuals. We have – in particular, you know, you can have a psychoactive substance-induced delusional disorder. You can have a brief psychosis paranoia. All sorts of things can result from continued abuse of ice and amphetamine. Amphetamine psychosis, for example, is a well-known sequelae where a .. person may have hallucinations, may have delusions or may have paranoia which will all be compounded by continued use…

22. When taken to the mother’s evidence that she did not believe amphetamines affected her, Dr O drew a distinction between consciousness and perception. He emphasised that a person is either conscious or not, but there can be “an altered state of consciousness, whereby the drugs exert what we call a delirium or a temporary state, and that can happen as well with psychoactive substance use.” Further he emphasised that paranoid and delusional thinking can develop. When asked specifically about the mother’s claim that she “lost a day” in January 2014, he said “it may not have been that she was unconscious or asleep, but she might have been in an altered state of mind whereby she wasn’t aware of the physical realities of the day passing, the practical and physical realities of the day because she was under the influence of the substance.”

23. Thus far in traversing the mother’s credibility, I have deliberately avoided critiquing the somewhat extraordinary claims which she makes. It does not seem to me a desirable process of reasoning to start a consideration of credibility by reference to the incredible nature of her claims; incredible things do occur every day.

24. However given the lack of support of the mother’s claims generally, and the inconsistency on occasion between her recollection and contemporaneous records, it is valid to look at the claims themselves as a part of the process of assessing credibility.

25. On any view, some of her claims are bizarre. For instance, she claims that in May of 2012, her then husband “gave me to [his associates]”. Specifically, she said that this occurred at her former husband’s home, and:

    There was a list on the table of stuff that had to happen to me, tortures, and [my former husband] got to choose. There was [the father] there and some [associates]. [My former husband] got to choose whether I go with the [associates] or my kids get harmed, and I had to go, and I had all this stuff done to me. And there was [sic] guns around the table, and they were making deals about people, and that’s what happens.

26. Later, she construed her former husband’s conduct in doing what she claims he did, as being protective of the children of their relationship: “he protected them by giving me to [his associates].”

27. Another illustration of her extreme claims is her assertion that the father attempted to administer a drug to Y in a milk drink. She says she was able to intervene to stop her daughter drinking the drug. Although she did not see the father insert any drug into the milk drink, in her oral evidence she claimed that her former husband had told her that some of the husband’s “friends” were listening in on a “phone bug,” as the father had “the house bugged so they could listen to what he was doing to me.” Apparently these people had somehow or other discerned that a drug was being administered to her daughter, somehow or other told her former husband of this, and hence this all justified her belief that she had saved her daughter from some plot of the father’s.

28. Viewed objectively, critically, and rationally, one could only conclude that this claim is ridiculous. It requires an acceptance that her home was bugged, that there were bikers listening in to all the household activities, that somehow or other those persons were able to discern that a drug was being mixed into a milk drink for a child, and that for some reason or other, these people then told her ex-husband of the events.  It is all quite absurd.

29. Dr O was provided with a transcript of the mother’s evidence given in the 2016 part of the trial.  Whilst he continued in his earlier opinion that she did not have any psychiatric disorder, he said “that there appears to be at the very least overvalued ideas regarding [the father] and some fantastic allegations made against him compounded by psychoactive substance abuse.

30. In his oral evidence, he explained that “.. an overvalued idea .. is like a delusion, although held with much less delusional intensity, that is, it can be amenable to change…”

31. I accept Dr O’s evidence, and am satisfied that it goes some way to explaining the mother’s claims.

32. In giving her evidence under cross-examination, the mother was frequently upset, and often demonstrated emotional intensity. On several occasions the Court needed to be adjourned to accommodate her emotionality. However there was nothing in her demeanour which would cause me to reject her evidence on that basis alone.

33. Whilst I do not wholly reject the mother’s evidence, in light of the matters I have discussed above, I treat it with great circumspection. Particularly I am troubled that, when under the influence of drugs her perception may be altered, that her memory is demonstrably inaccurate on occasion when tested against contemporaneous records, and, perhaps most tellingly of all, she is quite prepared to lie under oath for reasons which I do not accept are rational.

34. Whilst it will not be the case that I will always require her evidence to be independently corroborated before I would accept it, the weight I am likely to give it without corroboration will be significantly reduced.

The Father

1. The father presented at times as a somewhat difficult witness. I am confident that he has no great respect of authority. Certainly he did not appear to enjoy counsel’s attempts to control him during their cross-examination of him, and I do not discount from the equation the fact that both counsel for the mother and for the Independent Children's Lawyer were women, which may have contributed to his dissatisfaction. However, as with the mother, there was nothing in his demeanour which would cause me to reject his evidence. Indeed, as counsel for the Independent Children's Lawyer submits, when giving his evidence, the father was prepared to make concessions against interest, the most telling example being when he conceded that he likely did make an implicit threat to kill the mother’s former husband because of his unhappiness with something that the former husband had done.

2. However there are aspects of the father’s evidence which do not align with contemporaneous records. The most notable relates to an allegation that he had choked the mother. He adamantly denies ever having done so, and yet in an interview which a child safety officer conducted with him on 7 November 2012, Departmental records note that, although initially denying any domestic violence, ultimately the father “confirmed that he was choking [the mother]” but “said he was not continuing to choke her and said there were no marks.”  Specifically it is noted that there “have been other incidents before and choking” (which I accept, given their format in the notes are likely to be verbatim quotes) and it is then noted “he first having denied having done anything like that in his life and then said that there had been one or two instances in the last month.”

3. The father, when confronted with these records, adamantly denied that was what he had said to the child safety officer, but where there is conflict between the father’s evidence and a contemporaneous record, I place greater weight on the latter.

4. Ultimately that is the conclusion I draw in relation to the father’s evidence. I am far more inclined to accept it when it is supported by a contemporaneous record, and will reject it where it is in conflict with a contemporaneous record. On the whole, I prefer his evidence to the mother’s except where her evidence is supported by a contemporaneous record, but nonetheless I will approach it with circumspection. By no means will I unquestionably accept it, or assume its truth unless contradicted.

Issue 1 - Nature of relationship between child and parents

1. When the issues were settled at the Trial Management Hearing in 2016, this issue loomed as a significant matter, because the father had not seen or communicated with the child since April 2014, and hence had no practical relationship with him. However at the end of the first two days of the trial, the parties agreed interim orders which saw the father reintroduced to the child, albeit in a strictly supervised setting.

2. On 1 March 2017 a fresh round of family report interviews were undertaken by the writer, Ms P.  By then the father had seen the child on two occasions under the supervision of a family consultant, and Ms P noted that she “observed very positive interactions between [the child and the father].” Although the third family report was later prepared in October 2017, the father failed to attend his interview when first scheduled, and hence was not able to again be observed engaging with the child by Ms P. However in evidence there were reports from the contact centre where the father had been spending time with the child, and they noted a continuing good engagement between the father and the child. Ms P was cross-examined by reference to those reports, and whilst conceding that the child’s relationship with his father is “always probably going to be different” to his relationship with his mother, she thought it possible that the child could come to identify the father as another primary attachment figure, if he were to spend sufficient time with him.

1. She was not challenged in relation to that evidence, and I accept it.

2. Likewise she was not challenged in relation to her evidence that the child’s relationship with the mother was based upon a good close bond, and she was the primary attachment figure in his life.

Issue 2 – Benefit from meaningful relationship with father and best means of facilitation

1. Again, this issue evaporated during the course of the trial, and the mother specifically conceded in her helpful written submissions that there was no dispute that the child would benefit from a meaningful relationship with the father. Indeed that reflected Ms P’s evidence, who postulated that, absent such a meaningful relationship, the child may suffer from low self-esteem and lack of confidence which could, in due course, impact upon a whole range of future outcomes for him.

2. As to the best means of facilitation, Ms P identified that having face to face contact, be it through Skype or in person, is important especially for younger children, and it is best if both parents are involved in as many areas of the child’s life as circumstances permit. She emphasised that tactility is important in a young child’s experience of their parents, and that skin-to-skin contact was important in developing a sense of security, comfort and warmth in the relationship.

3. I did not understand from the mother’s written submissions that any of that was disputed, but rather her submissions focussed upon the alleged risk which the father poses to the child, and the means by which the face-to-face time between the father and child could best be safely undertaken. I will consider that when addressing the appropriate parenting orders in this case.

Issue 3 – Risk of harm posed to child by father

1. I have already observed that much of the trial focussed upon the myriad of allegations which the mother raised against the father, principally comprising physical and sexual assault, but also including administering stupefying drugs to her against her will, and falsely imprisoning her in an underground dungeon. However, much of that material is peripheral to assessing the risk, if any, which the father poses to the child. In so observing I do not overlook that the mother’s submissions were to the effect that, if I accepted her evidence as to the father’s misconduct towards her, that would “support a finding that the father poses an unacceptable risk of harm to [the child] in the event unsupervised time were to occur.” However the logical pathway by which that conclusion was drawn was difficult to discern. For instance, the mother alleges that the father has on occasions choked her, but I did not understand the mother’s case to be that therefore, if I were satisfied that occurred, the father posed a risk of direct physical harm to the child. Again I do not overlook the mother’s evidence under cross-examination that the father had accidentally hit the child in the face when meaning to hit her in the arm on one occasion, but even she conceded that was accidental. Further, her allegation that the father had drugged her while she was pregnant with the child, even if true, does not directly speak to a risk of harm to the child after he was born.

2. When pressed in evidence, the mother identified the risk to the child as being: “I’m scared he’s going to get drugged and hurt.” A little later, she denied that she was being dramatic in her evidence about the risk of the father drugging the child, and maintained “he drugs people”. This was one of the occasions when the mother became so upset in giving her evidence that the Court needed to adjourn.

3. Precisely why the father would wish to drug a young child was not explored in the mother’s evidence. There was a suggestion that he had tried to drug the mother’s eldest daughter, Y, as I have earlier discussed, seemingly as part of a plot to have her engage in sexual relations with him and the mother, but not only am I unpersuaded that the father attempted to administer a drug to Y in a milk drink, but the suggestion that in doing so, he intended to sexually assault her, is simply not open on the evidence. In so concluding I wholly reject the mother’s evidence that there were associates listening into her household, who were able to discern that the father was seeking to drug Y.

4. It is therefore very difficult to see what tangible risk the father poses to the child. Specifically, the evidence does not persuade me that he poses a direct risk of physical harm to the child, that he poses any form of sexual risk to the child, or that he poses a risk of harm to the child by virtue of drugging him.

5. Although it was not reflected in the way which the mother advanced her case, Ms P was cross-examined as to the risks which the father poses to the child by virtue of his intermittent drug taking. The father readily conceded a long history of drug use, and a continued recourse to marijuana.

6. It is seemingly not in dispute, that during the course of the relationship, the parties regularly used amphetamine, and in the course of these proceedings, on occasion the father either would not submit to drug testing within the required time frame, or would test positive to drugs. He has a long history of association with drugs, including criminal charges arising from his possession of them.

7. Ms P identified that recreational drug use might have an impact on parenting, and specifically that the father should not be under the influence of drugs at any time that the child is in his care. She identified three means of mitigating against that risk. The first was to control the amount of time that the child spends with the father; the second was to require the father to be abstinent from drug use in the week up to and during any time he spends with the child; the third was to have a continued regime of intermittent drug testing.

8. She also thought that, if the father were to engage in some drug support counselling, it may be of use, but she was unable to identify whether those sorts of programs were available in the area where the father lived. She also thought that if a regime on interim orders were made, that would enable monitoring of the father’s compliance with the regime she contemplated. I will consider whether interim orders are desirable when discussing the appropriate orders in this case.  

9. As I read the mother’s written submissions, although there is the broad assertion that, if her allegations are correct, the father poses an unacceptable risk of harm to the child if he spends unsupervised time with him, ultimately the mother’s submissions in relation to his conduct seem more to feed a Russell & Close argument, namely that her reaction to the father spending unsupervised time with the child would so diminish her parenting capacity as to make such a regime not in the child’s best interests. I will therefore consider her specific allegations when considering issue 5.

Issue 4 – Risk of harm posed by mother

1. Again, this issue largely evaporated given the way in which the mother ultimately put her case. Initially she opposed the father spending any time with the child, and therefore there was a risk that, if she was seeking to do so without any proper basis, she could be causing some emotional harm to the child by denying him a relationship with the father.  However as has been seen, that is no longer the mother’s position, and she conceded that the child should have a relationship with the father, albeit her preference is that it only be in a strictly supervised setting.

2. No other current risk was identified.

Issue 5 – Impact on the mother’s parenting capacity of co-parenting with father

Overview

1. During the course of the trial, this issue evolved, in that the mother conceded that the child should have a relationship with the father, and therefore some species of co-parenting should occur. Rather there were two particular aspects to this issue which became prominent. The first was the impact on the mother’s parenting capacity of being required to relocate back to Queensland, at either of the distances contemplated by the father (50km from B Town) or the Independent Children's Lawyer (100kms from B Town). The second was the impact on the mother’s parenting capacity of the child spending unsupervised time with the father.  

2. The central theme to the mother’s case in this respect is that she was so brutally mistreated by the father during the course of the relationship, that her fears of him are reasonable, and genuinely held.

3. In addressing the allegations which form the basis of those claims, I shall adopt the sequence used by the Independent Children's Lawyer in her written submissions, with some modification.

Father a member of an organisation

1. The mother has consistently claimed that the father is a member of an organisation. The father has repeatedly denied any such association. Indeed it may fairly be said that the mother’s claim that the father has an association with such an organisation is central to many of her concerns about him, in that:

   ·She claims that it was at the behest of the organisation, albeit with her former husband’s consent, that she was “given” to the father;

   ·She claims that an associate tracked her down in G Town at the father’s request;

   ·She claims that that an associate was going to kill her if she changed “owners”;

   ·She claims that, if she were to move back to south east Queensland, the father’s organisation would track her down and kill her;

   ·She further claims that, if she had ever gone to the police, the father or his associates would have killed her.

2. The Independent Children's Lawyer makes the valid point that, other than the mother’s assertion, there is absolutely no other evidence that the father has ever been a member of the organisation alleged. For instance there are no photographs of him wearing any identifying insignias, or with other organisation members. The mother has not identified the name of any alleged organisation associate of the father. There is no indication in the documents subpoenaed from Queensland or New South Wales police that the father has any association with the organisation.  Indeed, not only do the Police records not identify the father as an associate, but the NSW Police notes of 9 May 2014 specifically state: “[The mother] claims [the father] is part of the [organisation] in Qld but this is not confirmed.”

3. I have previously observed that I will be very circumspect in accepting the mother’s evidence in controversial matters where it is not supported by any contemporaneous corroborative evidence. This is one of those instances. I am not satisfied, on the balance of probabilities, that the father is associated with the organisation.

Mother given to father to save her older children from harm

1. I have already detailed the mother’s claim that her former husband gave her to the father to save their children from being harmed, whilst sitting around a table with the father, some bikers, and when there were firearms visible. The mother specifically says this occurred in May 2012. 

2. The way in which this evidence came to light was curious in its own way. It was not contained in the mother’s affidavits, nor did she disclose this to the family report writer or the psychiatrist who examined her for the purpose of these proceedings.  Rather was first volunteered by the mother when under cross-examination.

3. There is no corroborative material in relation to this claim. However the mother’s conduct subsequently has been somewhat inconsistent with her story, in that she left Y and Z with her ex-husband when she moved to New South Wales in 2014, and Z continues to live with him, and Y visits on holidays. Counsel for the Independent Children's Lawyer correctly points out that it is unlikely that the mother would agree to either of those children living or spending time with her ex-husband, if he was prepared to, in effect, sacrifice her. The mother’s response that he was acting protectively as regards their children by doing so, seems difficult to accept.

4. I am not persuaded that the father and/or his associates threatened to harm the mother’s other children, if she was not “given” to his associates.

Sexual assaults

New Year’s Eve 2012

1. The mother alleges that on New Year’s Eve 2012, the father administered a stupefying drug to her, and whilst she was under its influence, permitted a number of his friends to sexually assault her in a spa bath, including with a baseball bat.

2. The means by which she deduces that this is what occurred to her is unsatisfactory. She has no recollection of being sexually assaulted. All she says is that she woke up in the spa bath with the father, and noticed that there was a ring around the edge of the spa, and foot prints from it to the next room. She claims that she overheard five men in the next room commenting about having inserted a baseball bat into her vagina, and that one of the men claimed the baseball bat as something of a prize.

3. Although the mother says that she suffered vaginal bleeding for several days thereafter, there is no medical evidence to that effect.

4. The Independent Children's Lawyer notes that none of the people who the mother claims were present in the unit have been called to give evidence, and that not even the mother is able to give evidence based upon her actual experience or recollection of being sexually assaulted.

5. The evidence could not possibly support a finding, on the balance of probabilities, that the father did as the mother alleges in this respect.

Baseball bat

1. The mother claimed that the father had, on occasions prior to New Year’s Eve 2012, sexually assaulted her using the baseball bat, including anally raping her with it. Inferentially she says that at the time she was under the effect of drugs administered to her by the father, as she claimed that she would not otherwise have engaged in such an activity.

2. Again the Independent Children's Lawyer points out that there is no medical corroboration of the mother’s claim, who, even on her own evidence, did attend a hospital, she did not disclose the assault, and was diagnosed as having a back injury.

3. The evidence does not persuade me that the father sexually assaulted the mother as she alleges.

State of Origin 2013

1. The mother alleges that the father and she were staying in a motel, and he engaged in extremely rough sexual intercourse with her. The father denies this. Again there is no corroborative evidence, and I am not satisfied, on the balance of probabilities, that the incident occurred as the mother asserts.

Assaults at N Town 14, 15, & 16 January 2014

1. By the time of the events of 14, 15 and 16 January 2014, the mother and father were living separately, and according to the father, the relationship had concluded. However the mother says that on 13 January 2014 the father contacted her and asked her to meet him. She says “he threatened to harm my parents, as well as Y and Z, if I refused to meet him. I felt as though I had no choice but to meet him.”

2. She says that the father then took her to N Town, and ultimately her evidence was they ingested drugs and proceeded to have sex. The mother believes that, during the course of their sex, the father penetrated her with foreign objects, including a cow horn. Her further evidence is that she cannot really recall the events of 14 and 15 January, and only became fully conscious again on 16 January 2014. She then sent a text message to Y asking her to call police, and they attended the unit and assisted the mother to hospital. Contemporaneous records of Queensland police note that the mother did appear to be highly fearful and totally controlled by the father.

3. Concerningly, the mother took the then 4 month old child with her to N Town, and plainly he was unlikely to have been properly cared for during any period when the mother was unconscious or in an altered state.

4. I have already adverted to the mother’s inconsistent evidence in relation to whether she can recall ingesting drugs on this occasion. I am well satisfied that she did take amphetamine, but I am not satisfied that she was forced to take it against her will. In this regard it is pertinent to note that on 22 January 2014 in an interview with Departmental officers, the mother is recorded as having said that “she has not taken drugs unless [the father] has given them to her. She doesn’t buy them and doesn’t look to have them at any time. The mother told the officers “I want it; love it when it’s there but I don’t look for it”.”

5. The Independent Children's Lawyer makes the point that the mother declined a transvaginal ultrasound at M Town Hospital, which presumably would have gone some way to demonstrating whether or not she had been raped with a cow horn. Moreover, correctly the Independent Children's Lawyer notes that the mother could have had a drug test at the hospital to determine what drug had been administered to her had she been in any doubt, but chose not to.

6. As to whether or not the mother was held in the unit against her will, it seems clear that she was not, in the sense she was able to access her mobile phone which was on the fridge, and therefore how precisely she was held against her will is unclear. I am not satisfied that the father threatened to harm her parents if she did not attend with him; the mother did not call her father to give such evidence, and there is no explanation for that failure.

7. I am not prepared to rely on the mother’s evidence as to events during this three day period, because I am satisfied that she was under the influence of a drug, probably amphetamine. The fact that she herself accepts that she lost a day convinces me that the drug does affect her in ways that she does not otherwise concede, and I am satisfied that those affects alter her perception, and hence dramatically reduce the reliability of her evidence.

Physical assaults

Assaults at the Q Town property

1. The Q Town property is apparently remote bushland. The mother says that the father would take her there as punishment and assault her there. The father denied any such conduct, and rhetorically asked what was he punishing her for. There is no corroboration of this claim by the mother, and I am not prepared to act solely upon her evidence in this respect.

2. A specific incident is relied upon by the mother, in which she says that the father caused her to be burned when she approached a gas stove and lit it. I am not satisfied that this was undertaken deliberately by the father, but rather find it was an accident associated with the changeover of a gas cylinder.

3. There is an allegation that the father somehow made the mother sit on a bar stool at Q Town, with no underwear, thus exposing her genitals to the father and two other men who were sitting below her. The father denies it. I am not satisfied on the balance of probabilities that it occurred.

4. I am otherwise not satisfied that the other assaults which the mother says were perpetrated upon her by the father at Q Town occurred.

Choking October, November 2012

1. The mother alleges that the father has regularly choked her and pulled her hair. However dates and details are difficult to discern on the evidence. One example is in an interview with Child Safety Officers on 16 October 2012, where the mother says that the father “tried to strangle me” and that “being strangled is her “normal” punishment “when I’m not a good girl”.” 

2. She is recorded as having said “he will hold me by the neck, front or back and when he holds me at the back of the neck, she thinks he is going to break her neck”. On one occasion (24 May, year unspecified) “she was so scared she wet herself.” She is further recorded as having said “he tried to strangle me a couple of times each week” although there may be a gap of a couple of weeks between strangling attempts.

3. In the ensuing investigation the father was interviewed. In the notes of his interview on 7 November 2012, it is recorded that he admitted to domestic violence and drug use, and “confirmed that he was choking [the mother].” It is then recorded “he said he was not continuing to choke her and said there were no marks”.

1. In cross-examination the father denied those notes were accurate. I do not accept that evidence. I accept that the notes are likely accurate and that the father did admit to having strangled the mother.

2. Y was also interviewed in the course of that Departmental investigation, as was Z. Y is recorded as having told officers that “the last time she saw [the father] and [the mother] fighting [the father] grabbed her mum by the neck and said “shut up” and started screaming.” She was also noted as feeling “angry” when the father “chokes mum”. Z was interviewed on 16 October but made no mention of choking.

3. The father asserts that at the time, Y was motivated to tell untruths because she was jealous of the time that her mother was then spending with him. I am not persuaded that that is the case. I am satisfied that Y was telling Child Safety Officers her actual recollection of events.

4. Although there is a lack of specificity to the mother’s evidence on this issue (indeed there is little evidence in her affidavits about it at all) I am nonetheless persuaded that, on a date or dates which I cannot determine, and likely on more than one occasion, the father has placed his hands or arm around the mother’s neck and that she has perceived this as him attempting to choke her. Whether that was his intention or not is difficult to discern, but I am satisfied that the physical act occurred, and I am satisfied that it was at least in an attempt by the father to control the mother.

Assault while mother pregnant with X

1. The mother asserts that the father assaulted her by slamming a car door on her and hitting her in the stomach with a bag. The father denies this and says that the mother fell down “as a result of bunging it on”.

2. I am satisfied that there is a histrionic aspect to the mother’s behaviour on occasions, and I am satisfied that she is likely to exaggerate. I cannot exclude the possibility that the mother fell over by accident on his occasion, and I am not persuaded that the father assaulted her as she alleges.

Baby car seat incident October 2013

1. The mother says that the father grabbed her by her hair whilst they were travelling together in the motor vehicle that he was driving. She says that he pushed her head into a car window and dashboard several times, and kicked her legs when ultimately she was outside of the car lying on the ground.

2. The father says that the mother was attempting to remove the baby seat from the rear of the car, and that he thought that was unsafe, and attempted to get her to desist. He denies having deliberately caused her any harm.

3. Y claims to have seen this episode from some distance away, but I am not persuaded that she did. I am satisfied, however, that she did witness some degree of conflict between the mother and father on this occasion.

4. I am not persuaded that the father deliberately assaulted the mother as she alleges.

Kicking mother November 2013

1. The mother alleges, in substance, that the father kicked her in the groin, whereas the father says that he attempted to deflect her approach to him, by using his foot in a reflex action. In effect, he says the mother was the attacker and he was acting defensively.

2. In evidence before me was the police solicitor’s office report in relation to this episode. It reads as follows:-

   The suspect has approached the aggrieved in the bedroom of the offence location, the suspect has grabbed the aggrieved by the throat and the suspect has then thrown the aggrieved onto the bed whilst the aggrieved has been holding her child. The suspect has grabbed the aggrieved by the throat and has pushed his thumb into her windpipe, to make her release the child. The suspect has grabbed the aggrieved by the neck and has ripped her necklace off. The suspect has grabbed the aggrieved by the hair on the back of her head and has shaken the aggrieved head side to side in a violent action until she has released the child. The suspect has taken the child off the aggrieved and has walked into the lounge; the aggrieved has followed the suspect into the lounge. The suspect has then kicked the aggrieved in the groin, the force of the kick cause (sic) the aggrieved to be thrown across the room.

3. As there was a domestic violence order in place between the parties at that time, based on the mother’s evidence, the father was in due course charged with the breach of it, and found guilty. He received a three month wholly suspended jail term.

4. As I understand it, the father did not plead guilty to the offence, but was found guilty by a Magistrate. Whilst I do not have the benefit of any of the Magistrate’s reasons, it is obvious that the Magistrate must have been persuaded beyond reasonable doubt of the events in question.

5. I accept that the father was violent on this occasion as alleged by the mother. I do not accept that he was acting in self-defence.

Drugging of mother in B Town on 10 November 2012

1. There is a claim by the mother that the father gave her a spiked drink when they met in B Town whilst she was staying in a women’s shelter.  It is not in dispute that, during their meeting, the mother became unsteady, and the father took her to hospital. The mother advances a fairly fantastic claim that, at the hospital, the father interfered with her treatment, by bringing another doctor into her consultation who was, she says, the “head of the hospital”. I agree with the observation of the Independent Children's Lawyer that, if the father had spiked the mother’s drink which caused her to become dizzy, it is unlikely that he would have been the one to hospitalise her. Moreover, the mother did not permit the doctors to undertake any testing of her to establish what, if any, drug she had been given, which is inconsistent with her claim that she had been drugged against her will. I am not persuaded this episode occurred.

Father using listening devices/bugs and intimidating mother with flashing light

1. The mother seems to think that the father installed listening devices in various homes or locations, and further, that when at a particular property he would wear a flashing light on his head in an attempt to intimidate her, or perhaps as a forewarning that he was going to become violent toward her.

2. None of these claims are substantiated in any way, or corroborated by any other material. I am not prepared to act only on the mother’s evidence in relation to these claims, in consequence of which she fails to persuade me that these events occurred.

Evaluation of father’s conduct

1. I am satisfied that frequent drug use was a characteristic of the parties’ relationship. I am satisfied that the father, on at least one occasion, and likely more, has choked the mother. I am satisfied that his choking was coercive and controlling violence.

2. Moreover, I am satisfied that the father was, in his relationship with the mother, generally controlling and coercive.  Particularly I note the police believed her to be fearful of him on 16 January 2014 at N Town, and further, that the Departmental officers who have engaged with the parties have formed the view that the relationship was characterised by coercive and controlling behaviour by the father.

3. Included in the Departmental file is a note of a conversation between a Child Safety officer and a counsellor who was administering a “Safe Choices” program the father was enrolled in. She reported that the father has “a very rigid framework” and that “this includes that women should do as men tell them…”  I accept that is indeed the father’s view, and that his coercion and control of the mother was consistent with, and the product of, that view.

4. I am also satisfied that the parties’ relationship was particularly sexually focussed, and that often those sexual relations would take place when one, or more likely both, of the parties were drug affected. However I am not satisfied that the father is a member of an organisation, or that he has raped the mother, or that he has organised for others to rape her while she was under the influence of stupefying drugs administered without her consent.

5. The overall impression I have of the parties’ relationship is that it was chaotic, centred on sex and drugs, and that there was likely a significant power imbalance between them in the relationship, as a result of the father’s coercive and controlling behaviour.

6. I am satisfied that the relationship was a domestically violent one. I am satisfied that the father used occasional violence, including choking, as part of his modus operandi of control of the mother. The mother’s post separation episodic re-engagement with the father is not atypical for a domestically violent relationship, although I am satisfied that part of the inducement of her re-engaging with him was the access to amphetamine and sexual activity.

Impact on mother of having to move back to Queensland

1. The mother’s evidence is that she is fearful for her life if she were to return to again live in south east Queensland. At the centre of her fear is her belief that the father is a member of an organisation, and has the means and inclination to kill her. As I have found, I am not satisfied that the father is a member of the organisation, nor am I persuaded that he has an inclination or wish to kill the mother.

2. However I am satisfied that the relationship was a domestically violent one, that the father was the principal perpetrator, and that his violence was part of a coercive and controlling regime.  However it is not that which the mother says causes her to be fearful of her return to Queensland, but rather her belief that the father will kill her. At times she appeared to become extremely distressed when giving evidence about returning to Queensland under cross-examination. However in 2016, she was asked the following question:-

   Is there a possibility that you can think about that you could move closer to Brisbane?”

   Her answer was:

   If the [associates] aren’t going to get me I will. Well, I am worried about all the things I’ve said in here. I don’t want to be in trouble for the things I’ve said in here. Are you going to be upset with me? Ok, then, yes.

3. At the end of that answer, she was looking directly at the father, and apparently thought that he intimated to her that he was not going to be upset with her. However her fears appeared to have returned by November 2017 when the trial resumed, because she said under further cross-examination that “I’m worried the [associates] are going to come and get me. How am I ever going to be safe here...”  Later, she said “it’s too late once I’m dead and my children are dead.”

4. I am satisfied that the mother’s fear in this respect is not rational, and the prospects of the father harming her or any of her children are remote. As has been seen, the father has regularly travelled some 700 miles to spend time with the child; I am not persuaded that this is some attempt by him to reconcile with the mother, or to coerce and control her further. He remains in what he asserts to be a non-sexual domestic relationship with his former partner, and has his children to that relationship living with him.  I am well persuaded that he has a desire to establish a relationship with the child and maintain it, and it is that which motivates his desire to have the mother return to live in south east Queensland, not so he can have an opportunity to murder or otherwise harm or control her.

5. There are aspects of the mother’s presentation which would suggest that her belief is nonetheless genuinely held. As I have noted, at times she became very distressed when speaking about the prospect of returning to Queensland, but I cannot discount the possibility that her emotionality was due, in part, by her not wanting to leave her established life within a Christian church in a New South Wales community.  Dr O was certainly conscious of the prospect that the mother’s presentation was motivated by what he described as “secondary gain.”

6. The Independent Children's Lawyer correctly points to the fact that the mother has previously made allegations of some note against her former husband, but is now, on her own evidence, able to achieve a degree of amicability in co-parenting the children to that relationship. There is therefore some hope that the mother will, in due course, be able to move on from any fear she has of the father as well.  That certainly was the view of Dr O

7. The mother did not call any evidence from a therapist or psychologist as to the likely impact upon her of returning to live in Queensland, although there was evidence led from the family report writer in relation to this, and Dr O.

8. Ms P said that the mother “has been very clear that for her it would be something that would be very difficult if she were ordered to relocate back to Queensland”, but Dr O was a little more circumspect. Whilst he thought it was possible that the mother’s anxiety may impact upon her ability to care for the child, he said that it was not necessarily predictable. He said “these may be genuine concerns held by [the mother]. It is a bit clouded. However, [the mother] has had the opportunity of counselling. I recommended it. And should she become anxious about [the father’s] contact with the child for these particular stated reasons I believe she should see a mental health care practitioner and/or work through these particular concerns...”

9. I am not persuaded that the mother’s reaction to the prospect of returning to live in south east Queensland, should I order it, is likely to erode her parenting capacity to any marked degree, particularly if she were to avail herself of counselling to help her cope.

Impact on mother of child spending time with the father

1. The mother’s concern that the father may drug the child is irrational and extreme. He has no motivation to do so, and as I have indicated, he simply seems desirous of establishing and maintaining a relationship with his son. Apart from this claim, there is no other identifiable reason as to why the father should not spend unsupervised time with the child that the evidence presents.

2. The mother will likely be concerned about the father spending unsupervised time with the child, and to allay those concerns it is appropriate that there be a progressive regime of an increase in time which the father spends with the child so as the relationship can become more secure. However I am not satisfied that the prospect of the child spending unsupervised time with the father will diminish the mother’s parenting capacity in any substantial respect, or if the mother does experience emotional difficulty, that counselling would not assist her to cope.

Issue 6 – effect on child of no relationship with the father

1. Again this issue evaporated, as the mother did not press for a no contact order. In any event the mother’s position was well supported by the evidence: Ms P conceded that there were a number of recognised disadvantages to a child in not having a relationship with both of their parents. I accept that evidence.

Issue 7 – could parties relationship history and communication support equal shared parental responsibility

1. Ms P’ evidence was that the parties could not discharge the exercise of general equal shared parental responsibility at this stage.  I accept that evidence.

2. There was a body of evidence, which I accept, that the mother’s character has an aspect which sees her desirous of pleasing others. I am satisfied that the father exploited that in his coercive and controlling behaviour, and that there is a significant prospect that further exploitation would occur if there were to be any exercise of equal shared parental responsibility between these parties.

Section 60cc considerations

1. It will be appreciated that I have addressed both primary considerations, and a number of the additional considerations, in traversing the issues. However I make the following further comments in relation to additional considerations that have not been thus far addressed. 

2. The child is too young to express any views deserving of weight.

3. Importantly, by virtue of the mother’s removal of the child to New South Wales, the child has been denied the opportunity to establish a relationship with the paternal grandparents, his half siblings born to the relationship between the father and his former partner, and other members of the extended paternal family, who mostly seem to reside in the B Town area. The child presently has no relationship whatsoever with these persons, and plainly it would be desirable for him to be able to.

4. The father has missed one or two occasions of supervised time because of health issues. No criticism can be made of him for that; his effort in travelling to J Town to spend meagre amounts of supervised time with the child must be applauded.

5. It appears as though the father has never been assessed for child support, and in any event, is unlikely to have an income sufficient to result in any meaningful assessment. He appears to have some health issues, and no strong criticism was made of the father for failing to engage in employment.

6. So long as the mother lives a long way from where the father does, there will always be practical difficulty and expense in the child maintaining a relationship with his father. The expense, time and effort required for the father to travel to J Town cannot be overstated.

7. The mother was concerned that the father may expose the child to hunting of animals, and gave evidence of one of the father’s other children being distressed by a dying goat that had been hunted. I am not persuaded that this informs any lack of capacity of the father to provide for the child’s needs. He appears to have been a good enough parent to his other children, and there is no reason to think that this child will be treated any differently by him.

8. Several family violence orders have applied between these parties, and the father has breached them on several occasions. The fact that he has done so confirms two things; firstly, that he has a history of a controlling and coercive behaviour, and secondly, that he has little respect for authority.

9. Plainly it would be preferable to make an order that would finalise these proceedings, and be least likely to lead to the institution of further proceedings.

10. The mother has the right to travel and live wherever she chooses subject to relevant domestic law.

parental responsibility

1. I have made findings that the father has, on at least one, and likely more, occasion, choked the mother. I have found that he kicked the mother in November 2013.  Both comprise family violence, and therefore the presumption of equal shared parental responsibility does not apply. In any event I am satisfied that such an order would not be in the child’s best interests, because it would be unworkable, either because the parties would resort to hostility, or the father would seek to again coerce and control the mother. I am therefore satisfied that there should be an order for sole parental responsibility in favour of the mother.

2. However I am satisfied that there should be an exception to that, in that there should be an order requiring the mother to identify and refer to the child by his registered name, albeit there should be no prohibition on her using the present name she uses for him as an affectionate title.

3. That then leaves the prickly issue of religion. The father is strongly opposed to the child growing up in the mother’s religion, whereas the mother wishes for him to do so.  The mother makes the point in her written submissions that restraining the child from practising the mother’s religion may in fact impede upon her ability to practise it as well.

4. Unfortunately this was not the subject of much consideration during the course of the trial. However, upon balance, I am satisfied that the mother should be able to determine the child’s religion, save that, on any occasion that the child is spending time with the father, the father is not obliged to cause the child to attend any religious activities or ceremonies. Although not ideal, I am satisfied that such an order is in the best interests of the child, as any requirement for the parties to consult in relation to religion, is likely to lead to either a stalemate and hence further litigation, or alternatively the father reverting to his coercive and controlling means of engagement.

with whom should child live

1. The father ultimately seeks orders for week about time. In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] outlined the circumstances in which her Honour thought equal shared care could operate, as follows:

   The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:

   ·The parties’ capacity to communicate on matters relevant to the child’s welfare;

   ·The physical proximity of the two households;

   ·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   ·The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?

   ·Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   ·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

   ·Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra-curricular activities.

   ·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   ·Whether or not the parties respect the other party as a parent.

   ·The child’s wishes and the factors that influence those wishes.

   ·Where siblings live.

2. Whilst the statutory regime has changed since that decision, there is no reason to think that as a matter of logic those matters do not still inform the practicability of an equal shared care arrangement.

3. Few of those matters exist here. That informs that the prospect of a successful exercise of an equal shared care arrangement is extremely low. Moreover, such an arrangement would require the parties to live in close proximity to each other, so as to enable the child to be able to commute to school from both parties’ houses.

4. Further, as Ms P identified, one of the control measures to mitigate the risk which the father’s admitted recreational drug use poses to the child is to restrict the amount of time which he spends with him, and there is otherwise nothing in her evidence which would support equal shared care.

5. Therefore the child must primarily live with one of the parties.  He has always lived with the mother, and never with the father post-separation.  His primary attachment is with her.  He has a growing relationship with the father, but I do not assess it as presently strong enough to support him living with him.

6. I am therefore satisfied that the best interests of this child lie in there being an order that he lives with the mother.

time and communication with the father

1. I have already determined that an equal shared care arrangement is not in the child’s best interests and that he should primarily live with the mother. Further, unless I order the mother to relocate the child back to South East Queensland, it appears as though anything other than occasional weekends and block holiday time would not be feasible.  A regime which saw the child spend one half of all school holidays with the father, but only spasmodic weekend time, would not see the father established as a regular feature of the child’s day to day life. I am satisfied that, if possible, it is in the child’s best interests if the father is a more regular component of his life than he would be under such a regime. 

2. I am well satisfied that the best regime of time that the child should spend with the father is as advocated for by the Independent Children's Lawyer, namely that it should progressively increase, and culminate in alternate weekend time and one half of school holidays. Particularly such a regime would enable the child to establish relations with the paternal family, including his half siblings, and also enable him to undertake recreational activities with the father.

3. Although such a regime would not see the child undertaking many educational activities with the father, it is not suggested that he has particular strengths in that regard, or that he child will be disadvantaged by the father not being able to so participate.

4. That then squarely raises the question of whether the mother should be required to relocate, so that such a regime can operate.

5. On the one hand, the mother puts forward the following points against an order requiring her to relocate to south east Queensland with the child:

   ·   She will remain the primary carer of the child under the orders I propose to make;

   ·   She has a genuine, but irrational, fear of moving to live to Queensland.  Whilst I have rejected many of her claims, I have found that she was the victim of a violent, controlling and coercive relationship;

   ·   She has been settled where she presently lives in New South Wales for 3 years now, and is in suitable employment there;

   ·   There is no evidence as to whether she could afford to relocate to south east Queensland, and if so, whether she could thereafter afford to live where she relocated to;

   ·   In reality, the purpose of relocation is only to enable frequent weekend time with the father, as long travel to and from block holiday time could be countenanced;

   ·   If a regime of occasional weekends, but much less than every second, were ordered, it might achieve a meaningful relationship between the father and the child;

   ·That, in any event she says that the father’s time with the child should be supervised.

6. On the other hand, the following points tend to favour an order for forced relocation:

   ·The mother unilaterally left B Town expressly with the purpose of denying the father a relationship with the child (and herself, or course);

   ·To continue changeovers for any occasional weekend time at J Town, would mean the father and the mother both had to spend the weekend in that area, and may require the mother and child to travel long distances;

   ·The risks which the mother identifies that would arise from her living in Queensland are not real;

   ·It would be in the child’s best interests for him to maintain a regular relationship with the father, extending to alternative weekend time and half of school holidays;

   ·Whilst it may be the case that the mother is unable to obtain employment readily in Queensland, she has been able to survive in several New South Wales locations without employment in the past;

   ·If relocation were deferred until the end of this year, it would enable Y to conclude school in New South Wales, and more importantly, mean that the child commences his schooling in Queensland rather than New South Wales.

7. As has been seen, I am not persuaded that the father presents a risk of harm to the child such that his time should be supervised.  The mother’s alternative position was for interim orders, principally to see if the father complied with the orders, particularly as to drug testing.  I am strongly disinclined towards a further regime for interim orders in this case, notwithstanding the recommendations of Ms P. These proceedings have now been on foot for many years, including during the trial phase, for which I take some responsibility. It is intolerable for parties to have litigation continue, virtually indefinitely, with all of the stresses and uncertainties which it brings to their lives, and hence the child’s life too.

8. Given that the mother is in employment, and would presumably remain so until the end of the year, I am not persuaded that it would be financially impossible for her to relocate in December 2018 or January 2019. Further, I am not persuaded that her links with the community there, and more particularly the religious community where she lives, are such an important factor that they should outweigh the child’s best interests. Therefore, in principle, I provisionally weigh the competing factors as favouring relocation.

9. That then brings into focus the radius from B Town where the mother might be required to relocate within. The father suggests 50 kilometres, no doubt because he acknowledged the need for the parties to live close enough together to effect equal shared care. I have determined that an equal time arrangement is not in the child’s best interests, and therefore a 50km radius is not justified.

10. The Independent Children's Lawyer suggests a radius of 100 kilometres, but, interestingly, suggests that one of the changeover locations could be R Town, which is itself beyond a 100 kilometre radius of B Town. Assuming that the idea was to have the changeover roughly mid-way between the parties’ residences, R Town is not a logical choice.

11. A number of matters concern me. The first is that the mother’s perception of her safety will depend upon her distance from the father. The distance should therefore be as great as it logically can be, although I am mindful that the orders should not place undue stress on the child by having to regularly travel long distances to spend time with the father. Further, the greater the scope for the mother to live at a distance from the father, the greater the opportunity for her to obtain employment. A 100 kilometre radius would preclude the mother from living in Brisbane itself, and therefore would require her either to seek employment in a local area other than Brisbane, or to commute a considerable distance to Brisbane each day for employment. I am prepared to infer that employment opportunities on the Sunshine Coast for the mother are likely less than in the Brisbane area.

12. However it seems to me that to stipulate a particular radius from B Town in which the mother must reside may be in fact, unnecessary, if the child is simply obliged to be handed over within a convenient commuting distance from the father.  Such a regime would then leave it to the mother to determine how long she is prepared to travel to effect changeovers of the child.  But plainly where she presently lives would not enable an alternate weekend arrangement to work.

13. Counsel for the mother suggested that, in the event I was provisionally of the view that the mother should relocate, that the matter be brought back for further submissions. That is because the mother would prefer to live in northern New South Wales, rather than south east Queensland.  Inferentially, she therefore concedes that the mother could manage to move and live there.  It seems to me, unfortunately, given that submission, and my provisional thinking in the above paragraphs, I have no choice but to do so. I will therefore give the parties an opportunity to make further submissions as to the extent of any radius in which the mother might be required to relocate.

14. That is not all together disadvantageous. Although when the trial concluded before me, I was hopeful that judgment would be delivered far earlier than has transpired, a prospect which was apparently shared by the parties given the proposed orders they formulated, that has not transpired.  The progressive increase in time under the orders which were proposed by the Independent Children's Lawyer, which I am generally attracted to, contemplated, in effect, that judgment would be delivered no later than March 2018. That has not been able to be achieved, for reasons only partly beyond my control. It therefore seems that the parties should be given an opportunity to formulate up-to-date orders consistent with my reasons, or alternatively if that cannot be done, for the matter to be relisted for some further determination of the outstanding matters in dispute.

other orders

1. Beyond indicating my general inclination, on the current evidence, towards the regime proposed by the Independent Children's Lawyer, I will refrain from making any orders, pending the further relisting of the matter, and the receipt of any further evidence or submissions that the parties may wish to make.

CONCLUSION

1. For these reasons the only order which I will make is to relist the matter for mention only in a week’s time.

I certify that the preceding two hundred and twenty eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 July 2018.

Associate: 

Date:  30 July 2018Wolvfi